United States: The Forecast For Uranium Demand, Production And Export, Illustrated By Developments In Greenland's Uranium Export Legal Regime

The spot price for uranium slowly began to rise in December after historic lows. After record highs of over $100 per pound in 2007, the spot price for the commodity fell following the Fukushima disaster and its global repercussions.¹ On December 23, Platts reported that a pound of U3O8 rose to $20.65, after having hit a 12-year low of $17.75 per pound on December 2.² Analysts remain cautiously optimistic that the price of uranium will continue to rise in 2017. Driving this predicted increase are signs that market demand will increase. At the start of this year, there are 477 operating nuclear power plants and 60 reactors currently under construction worldwide. An additional 167 reactors are on order or planned, representing a potential increase of 235,000 MWe generated by nuclear power coming online by the late 2020s.³ While there are many factors that render forecasting uranium demand complex, the International Atomic Energy Agency (IAEA) and the Nuclear Energy Agency of the OECD nonetheless predict that demand for U3O8 will rise 11-81% over the next 20 years, and between 5-20% in the next five years alone.⁴

Predicted growth in the demand for uranium continues to drive new exploration and technology. Cameco, the world's largest producer of uranium,⁵ and AREVA will drill at least one hole on the Waterbury West Claim north of Cigar Lake in the first quarter of 2017,⁶ Azarga Uranium received approval from the Nuclear Regulatory Commission for construction of a mining project in South Dakota⁷ and, at the lowest point in the uranium market this year, Berkeley Energia broke ground on a shallow pit mine near Salamanca, Spain.⁸ Improved prospects for the cost of uranium have also encouraged steps forward in the demonstration of new enrichment technology. In November, GE-Hitachi Global Laser Enrichment agreed to purchase 300,000 MTU of high assay tails from the Department of Energy for enrichment into natural grade uranium.⁹ This uranium would be enriched using SILEX (separation of isotopes through laser excitation) technology, initially developed in Australia in the 1990s, to enrich uranium with pulsed lasers.

Meeting the predicted demand for uranium, however, is not a simple process given the safety, security, environmental and public health issues associated with uranium mining, opening of mines, the demonstration of new technology and export of U3O8, all of which entail completing manifold licensing and permitting processes governed by local, national and international law and regulation. Efforts to mine one of the world's largest estimated deposits of uranium, at Kvanjefeld in Greenland, illustrate the potential complexity inherent in opening a new mine and exporting uranium.¹⁰ Greenland, never having operated a uranium mine, had no clear regulation governing the export of uranium. Australia's Greenland Minerals and Energy Co. (GME), which had been developing the Kvanjefeld since 2009, waited seven years for the passage of necessary legislation.¹¹

The Legal Framework for Uranium Mining and Export in Greenland

Greenland's legal framework for uranium mining is governed by the 2009 Mineral Resources Act, passed pursuant to the 2009 Act on Greenland Self-Government.¹² The Mineral Resources Act includes clear lines of authority for exploration and exploitation licenses, as well as straightforward requirements for remediation plans, occupational safety and environmental protection requirements, and financial means tests. Although commentators have criticized the Act citing shortcomings— such as in detailing requirements for an environmental impact assessment—it nonetheless outlines a cogent licensing and permitting process for mining companies.¹³

 Establishing the legal regime for the export of uranium, however, has not been straightforward, largely as a result of Greenland's status as an "Overseas Countries and Territories" (OCT) entity. OCTs are special territories of EU member states that have relationships with the EU governed by provisions in their country's accession agreements or EU legislative agreements. Greenland, the only OCT to have withdrawn from the European Union, sought greater independence from Denmark via the 2009 Act on Greenland Self-Government, which gave Greenland responsibility for establishing courts of law, financial regulation and mineral resource activities, while Denmark retains the lead for Greenland's foreign defense and security policy.¹⁴ Although Denmark is a signatory to IAEA and Euratom agreements, it has never developed activities related to uranium mining or the nuclear sector generally and, consequently, does not have a comprehensive legal framework governing uranium import or export, and the extent to which its agreements would in any case bind Greenland has been a matter of dispute.¹⁵

IAEA Safeguards and Euratom Treaty Article 77

Disagreement as to whether Greenland could negotiate the export of uranium on its own terms and on uranium ore reporting requirements is the result of complexities in IAEA and Euratom regulation of uranium, and how those regulations apply to Greenland as a result of its OCT status and the 2009 Act. A comprehensive safeguards agreement (based on IAEA INFCIRC/153) establishes that safeguards apply from the point at which the source leaves the plant or process stage, and do not apply to the mining of ore, ore processing or yellowcake.¹⁶ Conversely, the Euratom Treaty provides that the "Commission shall satisfy itself that" in member states, "ores; source materials and special fissionable materials are not diverted from their intended uses as stated."¹⁷ As a result of this provision, Euratom requires member states to keep detailed records of ores and to allow experts access to processing facilities.¹⁸ In 2005, Euratom updated the application of its safeguards requirements by publishing Commission Regulation No. 302/2005, requiring member states to report basic technical information regarding ore extraction operations and clarifying that reporting requirements include maintaining accounting records of "the quantities of the ore extracted, with the average uranium and thorium content, and the stock of extracted ore at the mine [. . .] [and] details of shipments, stating the date, consignee and quantity in each case."¹⁹ While IAEA safeguards were applied across Euratom member states pursuant to an agreement between the two agencies in 1973, Euratom can be said to have safeguards requirements that apply more broadly to front-end fuel cycle mining activities than those implemented by the IAEA.²⁰

Recent Developments in Greenland's Uranium Mining and Export Legal Regime

In January 2016, Denmark and Greenland signed four agreements establishing a framework for uranium mining and export: a cooperation agreement related to foreign defense and security issues; a declaration on safeguarding nuclear materials; a declaration on dual-use materials; and an agreement on safeguarding nuclear mining safety.²¹ The agreements required implementing legislation, passed in May 2016, which included the stipulation that uranium would only be exported to NPT signatory states, that Greenland obtain prior consent from Copenhagen before exporting uranium to a country other than Denmark, and that countries importing Greenland's uranium were responsible for managing waste and other products that resulted from reprocessing.²² Moreover, Greenland agreed to follow the reporting rules and accounting and control requirements of Euratom Regulation No. 302/2005.²³ The Greenlandic Department of Industry, Labour and Trade will cooperate with the Danish Emergency Management Agency to establish a common electronic accountancy system and inspectors from both nations, as well as the IAEA, have access to facilities and materials subject to safeguards.²⁴ Greenland hence agreed to meet Denmark's recommendations regarding nonproliferation safeguards, and Denmark continues to assume responsibility for international safeguards to ensure the peaceful use of Greenland's uranium.²⁵

Conclusion

Legal hurdles that had hampered Greenland's ability to move forward since lifting the moratorium on uranium mining have been addressed through recent agreements passed to satisfy safety and environmental issues, as well as Denmark's nonproliferation requirements. Notwithstanding the uncertainty associated with forecasting uranium demand, the market for U3O8 is predicted to rise significantly both in the short and long term, and it is hoped that Greenland will be able to contribute to that market in the future.

Footnotes

1 It was further kept low by non-discretionary buying by utilities and ramp up of production at mines such as Cigar Lake. Frik Els, Uranium Market is Getting Crushed, MINING.COM (Apr. 20, 2016), http://www.mining.com/uranium-market-getting-crushed/.

2 Buying activity continues to push daily spot price higher, reaches $20.65/lb, S&P GLOBAL PLATTS, Nuclear Fuel Uranium Pricing Supplement, Dec. 23, 2016.

3 World Nuclear Power Reactors & Uranium Requirements, WORLD NUCLEAR ASSOCIATION (Nov. 1, 2016), nuclear.org/information-library/facts-and-figures/world-nuclear-power-reactors-and-uranium-requireme.aspx.

4 Such as changes in performance of installed nuclear power plants, improvements at fuel cycle facilities, and optimization of enrichment processes. Uranium 2016: Resources, Production, and Demand, IAEA & NEA (Nov. 30, 2016), 92-5, http://www.oecd-nea.org/ndd/pubs/2016/7301-uranium-2016.pdf.

5 Jocelyn Aspa, Top Uranium-producing Companies in the World (Nov. 8, 2016), INVESTINGNEWS.COM, http://investingnews.com/daily/resource-investing/energy-investing/uranium-investing/uranium-producing-companies-bhp-rio-tinto- cameco-areva-paladin-ur-energy-uranium-one-energy-fuels-peninsula-uranium-resources/.

6 Cameco and AREVA to Drill Waterbury West Claim, CANALASKA URANIUM LTD. (Dec. 12, 2016), http://www.canalaska.com/s/News.asp?ReportID=773265.

7 Azarga Uranium Completes NRC License Conditions for Dewey Burdock (Dec. 7, 2016), MARKETWIRED, http://www.marketwired.com/press-release/azarga-uranium-completes-nrc-license-conditions-for-dewey-burdock-tsx-azz-2181410.htm.

8 Jon Yeomans, Uranium: the unloved metal whose price is poised to go radioactive, Telegraph (Nov. 20, 2016), http://www.telegraph.co.uk/business/2016/11/20/uranium-the-unloved-metal-whose-price-is-poised-to-go-radioactiv/.

9 The US Department of Energy and GLE (Licensee for the SILEX Technology) reach agreement for the sale and purchase of depleted uranium hexafluoride, SILEX (Nov. 11, 2016), http://www.silex.com.au/SILEX-Laser-Uranium-Enrichment-Technology/US-DOE-and-GLE-Sign-Agreement-involving-SILEX-Plan.aspx?ext=.pdf.ToString().Replace(%22~%22,%22%22).

10 It is estimated that approximately 600 million pounds of uranium remain in Kvanefjeld, rendering it the world's sixth largest uranium mine. See Kristine Thrane, Per Kalvig & Nynke Keulen, Uranium Potential in Greenland, GEOLOGICAL SURVEY OF DEN. AND GREEN., http://www-pub.iaea.org/iaeameetings/cn216pn/Tuesday/Session2/023-Thrane.pdf.

11 Greenland Minerals and Energy Ltd., Home, http://www.ggg.gl/.

12 2009 Mineral Resources Act, available at http://www.govmin.gl/images/stories/faelles/mineral_resources_act _unofficial_translation.pdf..

13 Poul Johansen, Christian Glahder & Gert Asmund, BMP Guidelines for Preparing an Environmental Impact Assessment: Report for Mineral Exploitation in Greenland, BUREAU OF MINERALS AND PETROLEUM (Jan. 2011), available at http://www.govmin.gl/images/stories/minerals/EIA_guidelines_mining.pdf.

14 Cindy Vestergaard, The European Union, Its Overseas Territories and Non-Proliferation: The Case of Arctic Yellowcake, THE EU NON- PROLIFERATION CONSORTIUM (Jan. 2013), http://www.sipri.org/research/disarmament/eu-consortium/publications/EUNPC_no%2025.pdf.

15 Bent Ole Gram Mortensen, The Quest for Resources—The Case of Greenland, 15 J. OF MIL. & STRATEGIC STUD. 93, 112 (2013).

16 The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty of the Non-Proliferation of Nuclear Weapons, 34(c), IAEA INFCIRC/153 (June, 1972), http://www.iaea.org/sites/default/files/publications/documents/infcircs/1972/infcirc153.pdf.

17 Treaty establishing the European Atomic Energy Community, ch. VII-Safety Control, art. 77, (Mar. 25, 2957), available at http://www.cvce.eu/en/recherche/unit-content/-/unit/3cb9e142-6ac4-4184-8794-fc3cf619cf33/7c899bfd-8af1-4afa-aa30- e1c29c515c4f/Resources.

18 Cindy Vestergaard, Greenland, Denmark and the Pathway to Uranium Supplier Status, 2 THE EXTRACTIVE INDUS. & SOC'Y 153 (2015), https://www.google.com/url?sa=t&rct=j&q,=&esrc=&source=web&cd=2&ved=0CCgQFjAB&url=http%3A%2F%2Fwww.sciencedirect.com%2Fscience%2Farticle%2Fpii%2FS2214790X14000690&ei=slpnVOGhAuLasATPm4K4Bw&usg=AFQjCNEhkmuaupUWxP4LfT9sgFSN9vhXbw&sig2=IDw1Szlf7laV3o8GVTqS4g& bvm=bv.79142246,d.cWc&cad=rja.

19 On the application of Euratom safeguards, ch. V-Specific Provisions, art. 24, Ore Producers, No. 302/2005 (Feb. 8, 2005), available at http://eur-lex.europa.eu/resource.html?uri=cellar:48e4f5fc-d06b-4069-ab40-8c47a3e6a1bb.0005.02/DOC_1&format=PDF.

20 The Text of the Agreement Between Belgium, Denmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, the European Atomic Energy Community and the Agency in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, IAEA INFCIRC/193 (Sep. 14, 1973), available at https://www.iaea.org/publications/documents/infcircs/text-agreement-between-belgium- denmarkfederal-republic-germany.

21 Denmark and Greenland confirm uranium agreements, WORLD NUCLEAR NEWS (Feb. 2, 2016), http://www.world-nuclear-news.org/UF- Denmark-and-Greenland-confirm-uranium-agreements-0202164.html.

22 Cindy Vestergaard and Gry Tomasen, Uranium in Greenland: Clarifying Competences, ARTIC JOURNAL (Feb. 1, 2016), http://arcticjournal.com/opinion/2118/clarifying-competences.

23 Cindy Vestergaard and Gry Tomasen, Danish-Greenlandic declaration on nuclear safeguards, DANISH INSTITUTE FOR INTERNATIONAL STUDIES (Feb. 9, 2016), http://www.diis.dk/en/research/danish-greenlandic-declaration-on-nuclear-safeguards.

24 Id.

25 Cole Latimer, Greenland gives greenlight for yellowcake export, AUSTRALIAN MINING (June 8, 2016), https://www.australianmining.com.au/news/greenland-gives-greenlight-for-yellowcake-export/.

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