ML19340D341
| ML19340D341 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 11/28/1980 |
| From: | Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012300351 | |
| Download: ML19340D341 (18) | |
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4 UNITED STATES OF AMERICA 5 NUCLEAR REGULATORY COMMISSION 6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD PANEL 7
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) Docket No. 50-142 9 In Re: )
) (Proposed Renewal of 10 THE REGENTS OF THE ) Facility License UNIVERSITY OF CALIFORNIA ) Number R-71) 11 (UCLA Research Reactor) )
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12 )
13 14 UNIVERSITY'S STATEMENT O.? POSITION 15 WITH RESPECT TO UNSTIPULATED CONTENTIONS " '
Dated: November 28, 1980 , . . ,
17 18 2 19 William H. Cormier 2241 Murphy Hall '
20 405 Hilgard Avenue l Los Angeles, CA 90024 ~
l 21 Telephoner (213) 822-4010 s
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Representative for the 23 University of California DSb3 25 s 26
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3 4 UNITED STATES OF AMERICA 5 NUCLEAR REGULATORY COMMISSION 6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD PANEL 7
8 9 .
10 In the Matter of ) Docket No. 50-142
) } (Proposed Renewal of THE REGENTS OF THE ) Facility License 12 UNIVERSITY OF CALIFORNIA ) Number R-71) (UCLA Research~ Reactor) M 13 )
)
14 15 . UNIVERSITY'S STATEMENT OF POSITION 16 WITH RESPECT TO UNSTIPULATED CONTENTIONS Dated: November 28, 1980 17 18 I. INTRODUCTION 19 20 Pursuant to the Atomic Safety and Licensing Board's 21 Memorandum and Order dated October 2, 1980, in the instant action, 22 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (Applicant), the NRC 23 Staff (Staff) and the Committee to Bridge' the Gap (Intervenors) 24 have stipulated in a document designated " Stipulation" dated by 25 Applicant November 24, 1980. The stipulated contentions are 26
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l I contained in Attachment X to that document. 2 The discussion that follows is directed to those 3 contentions and/or subparts of contentions which Applicant was 4 unable to stipulate to and agree with the Intervenor. 5 6 II. DISCUSSION 7 8 The admissibility of contentions in NRC Licensing 9 Proceedings is governed by the provisions of 10 Code of Federal 10 Regulations Section 2.714 (10 CFR S2.714) and applicable NRC case 11 law. Intervenor's contentions must satisfy the basis and 12 specificity requirements of 10 CFR 52.714 (b). Moreover, as the 4 13 NRC staff has previously pointed out in this action, case law has 14 established that a contention'is not admissible and must be 15 rejected where: 16 (a) it constitutes an attack on applicable 17 statutory requirements: 18 (b) it challenges the basic structure of the 19 Commission's regulatory process or is an attack on 20 the regulations; 21 (c) it is nothing more than a generalization 22 regarding the intervenor's views of what applicable 25 policies ought to be; 24 (d) it seeks to raise an issue which is not 25 proper for adjudication in the proceeding or does not 26 apply to the facility in question; or 2
1 (e) it seeks to raise an issue which is not 2 concrete or litigable. 3 4 Philadelphia Electric Company (Peach Bottom Atomic power Station, 5 Units 2 and 3) ALAB-216 8 AEC 13, 20-21 (1974). (Applicant's 6 emphasis.) 7 Besides considering the admissibility of contentions 8 under the legal standard, during the prehearing phase of this 9 licensing proceeding the presiding officer of the Board is also 10 charged to consider " simplification, clarification, and 11 specification of the issues" and other matters that will assist 12 in eliminating repetitions and cumulative arguments, in avoiding 13 unnecessary proof and in defining the matters in controversy to 14 be determined in the proceeding. 10 CFR S2.752. 15 Applicant's objections to the admissibility of 16 the contentions set forth in Attachments B and C are based on the 17 legal standards for admissibility as well as a need to simplify i 18 and clarify matters. Applicant's specific 6bjectives follow. 19 A. The contentions set forth in Attachment B of 20 the Stipulation are not proper issues for this proceeding for l l l 21 the following reasons: 22 CONTENTION I, SUBPART 1 l 23 The Intervenor provides no basis for its 24 assertion that the " application omits essential information, with l 25 regard to experimental vibrations of the reactor". As explained 26 in the Staff position on the Intervenor's contentions, dated I 3
e 1 September 16, 1980, the intervenor relied on an out-of-context 2 statement to support the allegation. Reference to the context 3 demonstrates that the allegation is without substance. 4 CONTENTION V, SUBPARTS 3 and 11 5 Subparts 3 and 11 are duplicative of them-6 selves and of subparts 1 and 2 a of contention V (stipulated to 7 by the Applicant). In fact, any differences that may exist 8 between subparts 1, 2 a, 3 and 11 are insignificant. Simplification 9 and clarification will result by eliminating these issues. 10 CONTENTION X 11 Applicant notes that this contention is 12 properly directed to the Commission. Notwithstanding that the 13 determination which Intervenor is requesting is for the NRC to 14 =ake, Applicant strongly opposes admission of this contention 15 because it constitutes an attack on the regulations. Intervenor 16 ' asserts that the relicensing of the Applicant's research reactor 17 is a major federal action because Applicant, in the operation of 18 its reactor, exceeds the requirements of 10 CFR SS50.34a, 50.36a 19 and 100. ll(a) . Intervenor would have the Board apply to 20 Applicant's research reactor (and apply incorrectly at that) 21 the "ALARA" guides of 10 CFR SS50.34a and 50.36a, which very 22 clearly apply only to power reactors. Indeed, the guidelines 23 referenced in 10 CFR 560.34a (the Appendix I guidelines) are 24 expressly stated to be " appropriate only for light-water-cooled 25 nuclear power reactors and not for other types of nuclear 26 facllities." 4
1 Intervenor also wants the Board fo apply 2 the design basis accident emission criteria of 10 CFR 5100.11(a),
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3 which are applicable only to stationary power and testing reactors. 4 Intervenor's reliance on these sections in attempting to frame ) S an argument that a major federal action is involved in this re-6 ' licensing action is entirely misplaced. 7 In addition, regardless of whether'or not 8 the "ALARA" guides of Part 50 and the site evaluation guides of 9 Part 100 are applicable to Applicant's or any other facility, 10 compliance or non-compliance with these guides does not figure 11 into the Commission's determination that the licensing of a 12 power reactor constitutes a major federal action. The preparation 13 of an environmental impact statement in conjunction with the 14 licensing of full power nuclear power reactors is required by 15 10 CFR 551.$(a). Unless the Commission has explicitly determined 16 otherwise, the preparation of environmental documents is excused 17 entirely in the case of the renewal of Applicant's license by l 18 virtue of 10 CFR 551.5 (d) (4) . 19 With this contention and elsewhere in the 20 contentions set forth in Attachments B and C, Intervenor has l I 21 attempted to impose its views of what the applicable Commission 22 policies ought to be and what specific standards, guidelines, and 23 statutory requirements ought to apply to Applicant's. facility in 24 cases where it is clear that such requirements do not apply. l 25 Intervenor would'have us believe that in every instance where-26 there is an absence of numerical guidelines or explicit statutory I 4 S t
I requirements that are sta'ted to apply to research reactors the 2 omission is due to Commission neglect. On the contrary, the 3 Atomic Energy Act of 1954 specifically directs the Commission 4 in licensing research facilities 5 . . . to impose only such minimum amount of regulations of the license as the Commission 6 finds will permit the Commission to fulfill its obligations under this Act to promote the 7 common defense and security and to protect . the health and safety of the public and will 8 permit the conduct of widespread and diverse research and development." 9 Atomic Energy Act of 1954, Section 104 (c) , as amended. 10 To the extent the Intervenors wish to mount 11 such an attack on the NRC regulatory structure by suggesting, here 12 in this contention and elsewhere, that certain power reactor 13 standards or guidelines are applicable to Applicant's research 14 facility either directly, or as Intervenor has put it "by 15 analogy," Intervenor's remedy is a petition for rulemaking under 16 10 CFR S2.802 or a petition for an exception under 10 CFR S2.758. 17 Such arguments of Intervenor are not relevant in this proceeding. 18 CONTENTION XI 19 As drafted, this contention is a challenge 20 to the regulations. Part 51 of Volume 10, Code of Federal 21 Regulations, does not impose on Applicant the duty to prepare
- 22 an environmental impact appraisal. Intervenor does not, and could 23 not, . assert that Applicant has failed to provide any of the 24 information required by Part 51 in support of an environmental 25 impact appraisal.. As a result, there is no basis for support of 26 this contention.
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1 CONTENTION XII - 2 As it is now set forth in Attachment B of 3 the Stipulation, Applicant is prepared to stipulate to the 4 admissibility of this contention. 5 CONTENTION XV 6 This contention raises "an issue which is 7 not concrete or litigable." Moreover, it does not put the a Applicant sufficiently on notice "so that they will know at least 9 generally what they will have to defend against or oppose." 10 Peach sottem, supra at 20-21. The Applicant does not know what 11 is meant by the following phrases ". . . adverse consequences 12 which flow from its location and siting are too great" and 13 . . . the probable consequences of an accident at the facility 14 unacceptably great." Moreover, Applicant does not know how the 15 concerns raised here differ from the concerns raised in contentions 16 V (excess reactivity leading to power excursion leading to melt-17 down), VII (abnormal occurrences leading to endangerment of l l
;; 'public health and safety), XII (engineered safety features lacking 19 leading to endangerment of public health and safety), and XVII 20 (physical location and site characteristics unacceptably l
1 21 endanger the public health and safety). The contention and its 22 subparts are vague, nonspecific, and duplicative of the general 23 concerns raised in other contentions, specifically V, VII,.XII, , 24 and XVII hereof. l 25 CONTENTION XVII i
- 26 Intervencr, in its subpart S to this contention l
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I faults the Applicant's license application for not containing 2 the information on siting required by 10 CFR 550.34 (b) (1) . That 3 section requires "all current information . . . relating to site l 4 evaluation factors identified in (10 CFR) Part 100." However, 5 the purpose of Part 100 is expressly stated to be to describe 6 criteria applicable to stationary power and testina reactors. 7 Accordingly, all of Applicant's remarks (under contention X, above) 8 on the Intervenor's challenges to the regulations are fully 9 applicable here. The Applicant would stipulate to the admissibility 10 of this contention XVII if its subpart 5 were removed. 11 CONTENTION XVIII 12 Intervenor has provided no basis for its 13 allegation that Applicant is not financially qualified. As a 14 government entity, Applicant's demonstration of its financial 15 qualifications is entirely different from that of a private 16 entity. Applicant is the State of California, established as 17 a distinct governmental entity by Article IX, Section 9 of the 18 California Constitution. Applicant is funded by the State 19 legislature. Intervenor has not alleged that California is 20 broke or has never lived up to its financial obligations or is l 21 operating at a deficit as other governmental entities must do. 22 If Intervenor believes its subpart 1 (" Applicant has deferred 23 maintenance in the past due to lack of funds") has merit then 24 it ought to provide a basis for the assertion regarding the 25 " lack of funds" or else place the subpart in contention IX 26 (dealing the the adequacy of maintenance) where it properly belongs. 8 l
1 CONTENTION XXI , 2 New emergency planning requirements for all 3 nuclear reactor facilities went into effect November 3, 1980. 4 The changes were announced in 45 Federal Register 55402. As 5 amended, 10 CFR 550.54 (r) provides that licensees of Applicant's - 6 class will have until November 3, 1982 to submit revised emergency 7 plans in compliance with the new emergency planning requirements. 8 Applicant is re-examining all of its emergency planning related 9 to the research reactor facility and intends to submit a new plan 10 in accordance with the requirements of Part 50, as amended. No 11 public nor Commission purpose will be served by admitting this
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12 contention and considering Applicant's existing emergency plan 13 at this time. 14 B. The contentions that appear in Attachment C of 15 the Stipulation do not raise issues appropriate for consideration 16 in this proceeding. Intervenor has failed to set forth with 17 reasonable specificity bases for each of these contentions or 18 has failed to establish the relevancy of the issue. Applicant's 19 counsel and the NRC's staff and Staff counsel have spent over 20 twenty hours in conference with Intervenor on five separate 21 occasions in a good faith attempt to establish wording for each 22 contention that would meet the test of l'0 CFR S2.714 and 23 applicable case law with respect to issues relevant to this 24 licensing action. The parties have not been successful.and it 25 is unlikely that the expense of any additional time in this 26 effort will prove effectual. 9
i 1 CONTENTION VI, SUBPARTS 1 and 6 I 7 Subpart 1 of contention VI does not satisfy 3 the specificity requirement of 10 CFR S2.714;b) and is repetitious. 4 The expression "Past and present emissions are { sic] excessive" 5 is vague and fails to provide the Staff and the Applicant with any 6 clue as to what standards or levels which endanger the public 7 health and safety, as Intervenor avers, Applicant's facility has 8 exceeded. Applicant had suggested that the phrase be changed to 9 read "Past and present emissions have been in excess of applicable 10 " standards . . . Intervenor rejected this suggestion and has not 11 ctherwise been able to distinguish the "nove_1" assertion it 12 purportedly contains from the other pcrts of content!.on VI which 13 Applicant and Staff have agreed are admissible. 14 Subpart 6 of contention VI asserts that 15 Applicant's emissions are in excess of the so-called "ALARA" 16 guidelines applicable to " light-water-cooled nuclear power reactor 17 effluents." 10 CFR SS50.34a and 50.36a and Appendix I. Inasmuch 18 as Applicant is not seeking to license a power reactor, Intervenor's 19 attempt to introduce power reactor guidelines for the Board's 20 conrideration in this proceeding " constitutes an attack on 21 applicable statutory requirements" and must be rejected under 22 the general Commiasion standard as articulated in Peach Bottom, 23 supra at 21. Here, as elsewhere, Intervenor seeks to raise issues 2# that do not apply to the facility in question and all of Applicant's 25 comme.nts on contention X herein are fully applicable. 26 10
1 1 Intervenor argues in the alternate that if 2 the power reactor "ALARA" guidelines are not applicable then the 3 licensing board ought to establish, "in the context of this 4 licensing proceeding" the site-specific numerical guidelines that i 5 will be applicable to Applicant's facility. Under either argument : 6 Intervenor's request is the nature of a petition for rulemaking 7 and as such is clearly not appropriate for consideration in this 8 proceeding. 9 The "ALARA" standard clearly applicable to 10 Applicant's facility is that set forth in 10 CFR $20'.l(c). 11 The numerical "ALARA" guidance of Appendix I, which Intervenor 12 would have applied to Applicant's facility,'is expressly stated 13 to be " appropriate only for light-water-cooled nuclear power 14 reactors and not for other types of nuclear facilities." 10 CFR 15 Part 50, Appendix I, Section 1. 16 Moreover, it is clear that the numerical 17 guides that are set forth for power reactors are intended only 18 to provide design objectives and limiting conditions for operations 19 and "are not to be construed as radiation protection standards." 20 10 CFR 550.34a(a) . Intervenor's reliance on these "ALARA" guides 21 as somehow establishing radiation protection standards, which is 22 the thrust of the whole of contention VI, is totally misplaced. 23 CONTENTION VIII, SUBPART 3 24 Subpart 3 asserts that Applicant's. facility 25 ought to be held to the reactor site criteria requirements of 26 10 CFR Part 100. This subpart must be rejected as it constitutes 11
I an attack on applicable statutory requirements and seeks'to raise 2 issues that do not apply to Applicant's facility and hence is not 3 proper for adjudication in this proceeding. Peach Bottom, supra 4 at 21. . 5 The clearly expressed purpose of Part 100 is 6 to " describe criteria which guide the Commission in its evaluation 7 of the suitability of proposed sites for stationary powers and 8 testing reactors subject to Part 50 of this chapter." 10 CFR 9 S100.1 (a) . Part 100 only applies to applications filed for 10 stationary power and testing reactors. 10 CFR 5100.11 (a) . 11 Applicant is not seeking to license a stationary power nor testing 12 reactor. Intervenor's attempt to impose 10 CFR Part 100 site 13 criteria requirements on Applicant's research reactor relicensing 14 application is an attempt at rulemaking and is without relevance 15 to this proceeding. 16 CONTENTION X, SU3PART 4.e. 17 Applicant does not understand the relevance 18 of this item to Intervenor's argument. " Decommissioning costs" 19 are not " costs of operating" the reactor. 20 CONTENTION XIII 21 Intervenor has provided no basis in support 22 of this contention and reference to quantities as " excessive" is 23 unacceptably vague. 24 CONTENTION XIV 25 Intervenor has not provided any basis for the 26 assertion that Applicant has failed to consider " inherent" 12 [
1 problems at other facilities. The " basis" Intervenor prop,osed to 2 support this contention was not an inherent problem at an i 3 .Argonant-type. reactor facility. 4 CONTENTION XVI, SUBPARTS 2, 3, 4 and 5 5 Intervenor has not provided bases with the - j 6 requisite specificity to support the admission of these subparts. 7 Specifically with regard to subpart 4, Intervenor has not put a forth any argument why the license period should be reduced 9 to a maximum of five years. On the contrary, the Commission is 10 required to issue the license for the period requested by the 11 Applicant unless the Commission determines that the estimated 12 useful life of the facility is less than the' period requested. 13 10 CFR 550.51. 14 CONTENTION XVII, SUBPART 2 15 Intervenor has not provided any basis to 16 support the admission of this subpart. Moreover, Applicant has 17 no idea what Intervenor would regard as an " adequate review" 18 of all " current" information. If Intervenor wishes to assert 19 that certain information was omitted from consideration, Intervenor 20 should not be so evasive and should specify what information it 21 wants considered. 22 CONTENTION XIX 23 Intervenor has not provided any basis to 24 support the admission of this contention. Indeed, subpart 1 25 (sabotage), not representing an accident situation, is not at all 26 relevant to an application's safety analysis. In the other 13
t 1 subparts Intervenor displays its confusion ever what credi,ble 2 accident scenarios require consideration in a safety analysis. 3 Hypothesizing DC-10 or Boeing 747 airplane crashes is completely 4 arbitrary and hardly credible since the flight paths of 5 commercial airlines do not come anywhere near Applicant's facility 6 nor do they overfly the facility at any altitude. The use of 7 the term " design basis accident" in subparts 3 and 4 is mistaken. 8 CONTENTION XX 9 Intervenor has not provided any bases for 10 this contention and its numerous subparts. Intervenor has not 11 (and could not) allege any incident or occurrence that would 12 fsuggestanydefect in Applicant's security s'ystem. The " bases" 13 suggested by Intervenor are either irrelevant to Applicant's 14 facility or are not bases at all. As it stands, Intervenor's 15 contention XX is not the first step in a " fishing expedition" 16 Intervenor intends to use to " discover" Applicant's physical 17 security plan. It has been well established that an Intervenor 18 is not entitled to discovery to assist him in framing the 19 contentions in his petition to intervene. Northern States ! 20 Power Co. (Prairie Island Nuclear Generating Plant, Units 1 i 21 and 2), ALA3-107, 6 AEC 188, 192, aff'd, 6 AEC 241. 22 CONTENTION XXII 23 Intervenor asserts that certain changes 24 in Applicant's technical specifications occurred which have 25 reduced safety standards to an unacceptable level and which pose 26 a public health threat. Regarding subpart 2 (heat-balance 14
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I calibration requirement removed) there exists no basis sin.ce 2 there has never been such a requirement. Regarding subpart 3 3 (that the "ALARA" requirement is mentioned in the technical 4 specifications, Applicant is held to the "ALARA" standard by 5 the operation of 10 CFR 520.1. Subpart 4 refers to an inadvertent 6 (editorial) omission of Applicant and subpart 1 refers to a change 7 jmade only for administrative convenience. Leavinc aside whether 8 la sufficient basis exists for any of these subparts, Intervenor 1 9 has not specified how any could pose a threat to the public health 10 and safety. 11 . CONTENTION XXIII 12 Intervenor has not provided any bases for 13 the assertion concerning Applicant's reliance on intended future 14 actions in defense of Applicant's application. The " intended 15 future actiens" of Applicant are not relevant to this licensing 16 acticn. 17 CONTENTION XXIV 18 None of the bases suggested by Intervenor 19 in support of this contention are relevant to the assertion that 20 Applicant, as a research reactor operator has taken any action 21 or failed to take any action that has resulted in any damage to 22 the public either from radiation exposure or from theft or 23 diversion-of nuclear material. 24 25 26 15
1 III. CONCLUSION , 2 3 As.the Board may request, the Applicant is prepared , l 4 to discuss the admissibility of any or all of Intervenor's 5 contentions at greater length. Specifically, the Applicant - 6 wishes to reserve the right to restate its position on the 7 contentions set forth in Attachment C if the Board intends to 8 permit the Intervenor any further time to cure the defects in 9 these contentions. 10 11 12 13 14 Dated: November 28, 1980 15 16 17 18
- William H. Cormier Representative for Applicant 19 20 21 William H. Cormier, Esq.
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SERVICE LIST ga c Elizabeth S. Bowers, Esq.', Chairman j. DX 1 ((e - g Atomic Safety and Licensing Board '~._ 2 U.S. Nuclear Regulatory Commission it DEC 5 3 G80 > :: 3 Washington, DC 20555 b W sitM Setfitwy '2 g,$ Sag a spee Dr. Emmeth A. Luebke, Member $ g 4 Atomic Safety and Licensing Board , R"E U.S. Nuclear Regulatory Commission dIlib 5 Washington, DC 20555 6 Dr. Oscar H. Paris, Member Atomic Safety and Licensing Board 7 U.S. Nuclear Regulatory Ccmmission Washington, DC 20555 8 Mr. Daniel Hirsch 9 Committee to Bridge the Gap 1637 Butler Avenue, #203 10 Los Angeles, CA 90025 11 Mr. John Bay 1633 Franklin Street 12 Santa Monica, CA 90404 13 Christine Helwick, Esq. Glen R. Woods, Esq. 14 office of General Counsel 2200 University Avenue 15 590 University Hall Berkeley, CA 94720 16 Atomic Safety and Licensing Board Panel 17 U.S. Nuclear Regulatory Commission Washington, DC 20555 18 Docketing and Service Section 19 office of the Secretary U.S. Nuclear Regulatory Commission 20 Washington, DC 20555 ! 21 Counsel for NRC Staff Office of the Executive Legal Director 22 U.S. Nuclear 793Olatory Commission Washington, 'ot 10555 23 l ~ 24 l l 25 26
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