ML19347E038
| ML19347E038 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 04/13/1981 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19347E039 | List: |
| References | |
| NUDOCS 8104150037 | |
| Download: ML19347E038 (22) | |
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Uf1ITED STATES OF Af1 ERICA A
liUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In-the Matter of
)
)
Docket fio. 50-142 THE REGE 1TS OF Tile UtlIVERSITY OF
)
(Proposed Renewal of Facility CALIFORilIA
)
License)
)
(UCLA Research Reactor)
)
f1RC STAFF MOTIOil FOR SU 1 MARY DISP 0SITI0ft Colleen P. Woodhead Counsel for f4RC Staff April 13, 1981 810,4150037 Gr
t
-i-TABLE OF CONTENTS Page I.
Tile T10T 10N.....................
1 II.
INTRODUCTION..
1 III. DISCUSSION.....................
3 A.
Legal Standards for Sunnary Disposition....
3 B.
Contention XX...
6 C.
Arguaent in Support of flotion.........
8 IV. CONCLUSION.....................
15 V.
ilATERIAL FACTS AS T0 llHICH NO ISSUE EXISTS.....
17
- ii -
TABLE OF CITATIONS Page Court Cases:
Adickes v. Kress and Co., 398 U.S. 144 (1970)........
4 BPI v. Atomic Energy Connission, 502 F.2d 424 (D.C. Cir.1974) 3 Crest Auto Suppiies, Inc. v. Ero Manufacturing Co., 360 F.2d 896 (7th Cir. 1966).....................
4 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968).......................
5 Orvis v. Brickman, 95 F. Supp. 605 (1951) aff'd 196 F.2d 762 (D.C. Cir. 1952).....................
5 Poller v. Columbia Broadcasting Systen, Inc., 368 U.S. 464 (1962)............................
4 Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944)..
4 i
United Mine Workers of America, Dist. 22 v. Roncco, 314 F.2d 18 6 ( 10 t h C i r. 19 6 3 ).....................
4 NRC Cases:
Alabana Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210 (1974)...........
4 Cleveland Electric Illuminating Co. et al. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741 (1977)....
4,5 Duquesne Light Co. (Beaver Valley Power Station, Unit 1),
ALA3-109, 6 AEC 243 (1973)..................
3 Gulf States Utilities Co. (River Bend Station, Units 1 & 2),
LDP-75-10, 1 NRC 246 (1975).................
4,5 tiouston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-590,11 NRC 542 (1980).........
3 Mississippi Power & Light Co. (Grand Gulf Nuclear Station, j
Units 1 & 2), ALAB-130, 6 AEC 423 (1973)...........
3 l
t l
l
f
- iii -
TABLE OF CITATIONS (Cont'd)
Page Northern States Power Co. (Prairie Island Nuclear Generating i
Plant, Units 1 & 2), CLI-73-12, 6 AEC 241 (1973).......
3,5 Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Uni t No. 1), LBP-7 7-45, 6 NRC 159 (1977)...........
6 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-35, 7 AEC 877 (1974)...........
4 Regulations:
10 C.F.R. 9 2.732......
4 10 C.F.R. 6 2.749.......................
I 10 C.F.R. 9 2.749(a).....................
6 10 C.F.R. 5 2.749(b).....................
5 10 C.F.R. 9 2.749(d).....................
3 10 C.F.R. 5 73........................
2,8,9,11, 13,15,16 10 C.F.R. 5 73(aa)......................
9 10 C.F.R. 9 73(bb)......................
9 10 C.F.R. % 73(c).......................
14 10 C.F.R. 5 73(d).......................
14 10 C.F.R. 9 73.2(h)......................
12 10 C.F.R. s 73.2(i)......................
12 120 C.F.R. 9 73.2(j)......................
12 10 C.F.R. 9 73.2(x)......................
9,10,11,13 10 C.F.R. 5 73.2(z)......................
13 10 C.F.R. @ 73.6.......................
9,11 10 C.F.R. Q 73.20.......................
9 10 C.F.R. s 73.25.......................
9 10 C.F.R. 9 73.26.......................
9 10 C.F.R. % 73.27.......................
9 10 C.F.R. G 73.45.......................
9 10 C.F.R. 9 73.46.......................
9 10 C.F.R. 9 73.60.......................
2,9,10,11 10 C.F.R. 9 73.67.......................
2,8,9,10, 11,13,14 10 C.F.R. s 73.67(a).....................
11 10 C.F.R. s 73.67(d)(7)....................
15 l
10 C.F.R. @ 73.57(d)(8)....................
14 10 C.F.R- @ 73.67(d)(10)...................
14 10 C.F.R. % 73.70.......................
9 10 C.F.R. s 73.72.......................
9
I
- iv -
TABLE OF CITATIONS (Cont'd)
Page
!!iscellaneous:
Federal Rules of Civil Procedure, Rule 56...........
4,5 6 floore's Federal Practice (2d ed.,1976)...........
4 Affidavits Submitted:
Donald M. Carlson Janes R. Miller 1
s UllITED STATES OF Af1 ERICA N0 CLEAR REGULATORY C0!!!11SSI0ft BEFORE THE ATO11C SAFETY AND LICENSING BOARD l
In the !1atter of Docket No. 50-142 THE REGENTS OF THE UNIVERSITY OF
)
(Proposed Renewal of Facility CALIFORilIA License)
(UCLA Research Reactor)
)
HRC STAFF t10 TION FOR Sui 1-tARY DISPOSITION I.
Tile t10 TION Pursuant to 10 C.F.R. 9 2.749 of the Comnission's Rules of Practice, i
the NRC Staff noves the Atonic Safety and Licensing Board for sunnary disposition of Contention XX admitted to this proceeding.
In support of its notion, the Staff will show by affidavit and discussion that no genu-ine issue of naterial fact exists to require litigation of this contention and that sunnary disposition should be granted as a natter of law.
II.
INTRODUCTION This proceeding began with publication of a Federal Register Notice on April 25, 1980 and subsequent subnission of a petition to intervene by the l
Comnittee to Bridge the Gap (CBG) on ttay 22, 1980.
On September 25, 1980 a special prehearing conference was held; the petitioner was admitted as a party to the proceeding; and four of twenty-three contentions submitted by CBG were admitted. The parties entered negotiations after the special prehearing conference and submitted a stipulation setting forth the agreenents reached anong the parties as to the adnissibility of contentions to the Atomic Safety and Licensing Board (Board) on December 1, 1980. On February 4-5, 1981 a
i.
second special prehearing conference was held to discuss those contentions for which agreenent as to adnissibility had not been reached anong the parties.
On E1 arch 20, 1981 the Board issued an order admitting or denying the pending contentions and establishing the discovery schedule.
Contentio1 U., adnitted as nodified by the BoardM, concerns the adequacy of the UCLA security plan and its effectuation by the l
University's reactor personnel. The Staff had filed a lengthy response prior to the prehearing conference opposing this contention on the ground that the Intervenor had attenpted by Contention XX to inproperly apply power reactor safeguards regulations to the security plan of the UCLA research reactor. See also discussion at the prehearing conference.
(Tr. 359-398).
In addition, the Staff pointed out that the Intervenor had provided no basis to support the factual allegations contained in the contention and that the allegations raised were clearly refuted by the UCLA application or by a tour of the facility.
An Intervenor representative toured the UCLA reactor area along with Staff counsel and two staff nenbers in September 1980.
(Tr. 370)
The present notion for summary disposition is supported by affidavits of two nenbers of the NRC Staff who are experts in the area of the safe-guards regulations of the Connission contained in 10 CFR Part 73 and who have responsibility for reviewing and approving or disapproving the If The Board Order modified the contention by adding the words "pur-suant to 10 CFR 73.60 and 73.76" (correctly: 73.67) in the first part of the contention. Order Subsequent to Second Prehearing Conference,ltarch 2C, 1931, p.12.
l l
t security plan for the UCLA research reactor. These affidavits attest that the allegations in Contention XX are entirely without factual or legal merit, based on the affiants' personal observations of the security systen during recent tours of the UCLA research reactor facility and surrounding areas and their expertise in the Connission's safeguards t
regulations. These affidavits show that Contention XX raises no genuine issue of fact and should not be litigated, but rather, suanarily dismissed.
III.
DISCUSSION A.
Legal Standards for Summary Disposition The Commission's Rules of Practice provide for sumnary disposition of certain issues on the pleadings where the filings in the proceeding show that there is no genuine issue as to any material fact and that the novant is entitled to a decision as a natter of law.- 10 C.F.R. 9 2.749(d).
Use of sunnary dispasition has been encouraged by the Connission and the Appeal Board to resolve contentions where the intervenor has failed to establish that a genuine issue exists.
Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-73-12, 6 AEC 241(1973) aff'd sub non BPI v. Atonic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974); flississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 424-25 (1973); Duquesne Light Co,. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 o
(1973), Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station,-Unit 1) ALAB-590, 11 NRC 542, 550 (1980).
-v
The Commission's rule authorizing summary disposition is analagous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Co.
(Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 217 (1974); Gulf States Utilities Co. (River Bend Station Station, Units 1 &
2), LBP-75-10, 1 NRC 246, 247 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877, 878 (1974)
Cleveland Electric Illuninating Co. et al. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 753-54 (1977).
6 Moore's Federal Practice, p. 56-21 (2d ed. 1976).
j In Federal practice, Rule 56 authorizes summary judgment only where 4
it is quite clear what the truth is and where no genuine issues remain for trial.
Sartor v. Arkansas Natural Gcs Corp., 321 U.S. 620, 627 (1944); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). And the record will be viewed in the light nost favorable to the party opposing the motion.
Poller v. CBS, supra, at 473; Crest Auto Supplies, Inc. v. Ero Manufacturing Co., 360 F.2d 896, 899 (7th Cir.
1966); United itine Workers of America, Dist. 22 v. Roncco, 314 F.2d 186, l
188 (10th Cir. 1963).
The Commission follows these sane standards in considering summary disposition notions.
Perry, ALAB-443, supra at 754; Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),
LBP-74-36, 7 AEC 877, 879 (1974). And the burden of proof lies upon the novant for summary disposition who must demonstrate the absence of any genui1+ ' que of nateral fact. Adickes v. Kress and Co., 398 U.S. 144, 157 (1970); Perry, ALAB-443, supra, at 753; 10 C.F.R. 5 2.732.
However, where no evidence exists to support a clain asserted, it is appropriate to promptly dispose of a case without a formal hearing. The 1
Connission has nade clear that intervenors must show that a genuine issue exists prior to hearing, and if none is shown to exist, the Board may sunnarily dispose of the contentions on the basis of the pleadings.
Prairie Island, CLI-73-12, supra at 242. This obligation of intervenors is reflected in 10 C.F.R. 6 2.749(b) which states therein; When a notion for sunnary disposition is nade and supported as provided in this section, a party opposing the nation nay not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact.
If no such answer is filed, the decision sought, if appropriate, shall be rendered.
As the Supreme Court has pointed out, Rule 56 does not permit plain-tiffs to get to a jury on the basis of the allegations in the complaints coupled with the hope that something can be developed at trial in the way of evidence to support the allegations.
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-290 (1968). Addi-tionally, as stated by another court, a plaintiff is not allowed to defeat a notion for sunnary disposition on the hope that on cross-exan-ination the defendants will contradict their respective affidavits.
This i
is purely speculative and to permit trial would nullify the purpose of Rule 56 which provides sunnary judgment as a means of putting an end to useless and expensive litigation where no genuine issues exist.
Orvis v. Brickman, 95 F. Supp. 605, 607 (1951) aff'd 196 F.2d 762 (D.C.
Ci r. 1952).
To defeat sunnary disposition an opposing party must present caterial, substantial facts to show that an issue exists.
Conclusions alone will not suffice.
River Bend, LBP-75-10, supra at 248.
- Perry, ALA3-443, supra, at 754.
Further, if the statenent of material facts 4
~
required by 10 C.F.R. s 2.749(a) is unopposed, the uncontroverted facts are deemed to be admitted.
Pacific Gas and Electric Co. (Stanislaus fluclear Project, Unit tio.1), LBP-77-45, 6 NRC 159,163 (1977).
The Staff believes that even when the following affidavits and dis-cussion concerning Contention XX are viewed nost favorably in support of the contention, that it is clear that no genuine issue of aaterial fact exists to warrant litigation of the contention, and that sunnary disposition should be granted as to all of Contention XX on the basis of the pleadings.
B.
Contention XX Applicant has in the past and is at present taking inadequate fixed site physical security precautions to protect against radiological sabotage as well as protection against theft and diversion of the special nuclear materials it possesses, pursuant to 10 CFR 73.60 and 73.67 thus indicating that the Applicant's physical security plan is inadequate and its implementation of said plan is inadequate.
Applicant has failed to demonstrate in its recent performance any evidence that its physical security neasures can reasonably be expected to improve in the future, in the absence of which denonstration grant of an operating license and a SlC4 license cannot be nada without undue threat to public health and safety.
1.
Applicant has at its facilities areas containing vital equip-nent and special nuclear naterials, areas which should be adequately protected against possible acts of radiological sabotage or attenpts at theft or diversion of Sftl, and to which access should be adequately controlled.
Specifically:
a.
the reactor roon, b.
the control roon, c.
the third floor equipment roon, d.
the fresh fuel storage area, and the " restricted area" immediately surrounding the reactor e.
stack and exhaust fan on the eighth floor of Boelter liall.
2.
There exist areas adjacent to the above-nentioned vital and material access areas which should be sufficiently isolated and secured to prevent then from being used as penetration points or staging areas for penetration of the vital and naterial
_ access areas. Specifically:
The " access court" used for truck loading and unloading a.
located between the reactor building and the Engineering Building to its west,
b.
the Tokamak lab adjacent to the reactor room, c.
the main entrance (reception lobby) to NEL, d.
the presently unrestricted roof areas of Boelter and fiath Sciences adjacent to the " restricted area" around the reactor stack, e.
the roons within itath Sciences whose windows open to the
" restricted area" around the reactor stack, and f.
the entryway for the single locked door to the " restricted area" around the reactor stack.
3.
Applicant's physical security mea;ures for its vital and aaterial access areas and the areas adjacent to then have been in the past and are at prerant inadequate to properly protect, isolate, and control accc,s to those areas in that a.
presence by guards and watchaen is too infrequent; b.
methods for detecting concealed guns, explosives, or incendiary devices that could be carried by people entering these areas, and SNf1 that could be carried by people leaving these areas, are inadequate; i.
Applicant lacks mechanical devices to detect fire-arms, explosives, incendiary devices, or SfM and ii. Applicant fails to routinely search visitors and staff for firearms, explosives, incendiary devices, or SNf1 c.
physical barriers to penetration are inadequate; i.
fences and walls are is short, lack barbed wire at the top, and otherdise (ail to fully enclose the area to be protected
- 11. windows and doors in walls that are to act as physical barriers are made of construction and fastening of insufficient strength such that the integrity of the wall is lessened by the opening provided by the windows and doors iii. dual or redundant barriers are lacking; penetration l
of these areas can be made by breaching a single barrier d.
security neasures with regard to keys and locks are inade-quate; and i.
doors that should be kept locked have been left open ii.
locks are of insufficient construction and strength to prevent tampering and penetration iii. too many keys to areas that are supposed to be locked have been given out iv. control of those keys is inadequate in that copies can be made, keys can be lent to unauthorized personnel, and keys that are signed out are not required to be returned when not in use e.
procedures to control access are inadequate.
i.
groups that are too large for adequate supervision are given tours of the facility by one or two staff people alone l
11.
these tours include visits to vital and material access areas iii. NEL personnel unassociated with the reactor have ready access to vital and material access areas through egresses connecting their parts of the NEL complex with the parts of the complex utilized by the reactor.
C.
Argument in Support of Motion This contention misconstrues both the obvious facts and the Commis-sions regulations pertinent to the UCLA research reactor safeguards systen. The following discussion will show that Contention XX (1) alleges facts which are contrary to those observed by any visitor to the facility, and (2) seeks to misapply the Commission's regulations by atteapting to apply Part 73 of 10 CFR according to the Intervenor's viewpoint, rather than in accordance with the clear language of the regulation which describes the Comission's considered judgment made by the experts in safeguards matters.
The Staff will show that the only portion of 10 CFR Part 73 applicable to the UCLA research reactor is 1G CFR 6 73.67 and the definitions contained in 10 CFR Part 73.
The only allegation by the Intervenor not easily disproved by reference to 10 CFR Part 73, the UCLA application, or a personal site i
visit, is the unsupported verbal assertion by the Intervenor, nade for the first time at the prehearing conference February 4-5, 1980, that the irradiated fuel in the UCLA reactor does not emit 100 rems at three feet.U The Staff affidavits attached to this motion address the Inter-y-
Since the !! arch 20, 1981 Board Order (p.12) adnitting Contention XX refers to the Intervenor's unsupported assertion during the prehear-ing conference, it appears that this bald statement was the reason the Board concluded that an issue of fact exists.
t
venor statement and show its inaccuracy and thus places the burden on the Intervenor to provide to the Board some basis to support the allegation nade orally without explanation.
The misapplication of the Commission's regulations is shown as follows.
To begin, one must note that the only section of 10 CFR Part 73 applicable to the UCLA reactor is s 73.67. This is determined by the following definitions contained in Part 73, to which the Staff respectfully requests the Board to direct its attention.
10 CFR 6 73.2 (aa) defines " strategic special nuclear material (SNM) ds uranium-235 enriched to 20% or nore, uranium-233, or plutonium" 10 CFR 73.2(bb) defines " formula quantity" strategic SNM as 5000 grams or nore.
10 CFR 6 73.2(x) defines SNM of moderate strategic significance as (1) less than e r'ormula quantity (5000 gas) of strategic SNM but more than 1000 gas of U-235 enriched to 20% or more or (2) 10,000 grans or acre of U-235 enriched to 10% but less than 20%.
3 73.6 states that licensees are exempt from the requirements of ss 73.20, 73.25, 73.26, 73.27, 73.45, 73.46, 73.70 and 73.72 with respect to SNM with an external radiation dose of 100 reas per hour at three feet unshielded.
5 73.60, entiLicd " Additional requirements for the physical protection of special nuclear material at non-power reactors" states, in pertinent part, that
"... a licensee is exempt from the requirenents of this section to the extent that he possesses or uses special nuclear naterial which is not readily separable from other radioa'ctive material and which has a total external radiation dose rate in excess of 100 reas per hour at a distance of three feet from any accessible surface without intervening shielding."
d
The UCLA application plainly states on page 5 that a license is
^
requested for 4700 gns U-235 (irradiated); 4700 gas U-235 (fresh) and Pu-239 as a 2 curie, Pu-Be neutron source. The application for renewal of license encompasses the anount of SICI now in possession of UCLA by the present license; the 4700 grans irradiated U-235 refers to the fuel nav in use in the core which enits 100 ren/ hour at three feet, unshielded and is thus exenpt from the accounting by Part 73 insofar as regulations concerning quantities of SNM are concerned, and also, is exenpt fron consideration according to 10 CFR @ 73.60.
(Tr. 388-389).
As explained at the prehearing conference,3/ the Applicant possesses less than 5000 grams U-235 unirradiated fuel which is the only SNM held by UCLA which is relevant to Part 73 safeguards regulations.
(The2 curies of Pu is negligible). Theref; ore, the only fuel in possession of the Applicant which determines the safeguards regulation applicable to UCLA is the fresh fuel and only section 73.67 entitled " Licensee fixed site and in-transit requirenents for the physical protection of special nuclear t
naterial of noderate and low strategic significance" is applicable. This is denonstrated by reading 10 CFR % 73.2(x).
3/
Tr. 389 (Line 3 contains a transcriber error:
500 grams should read 5000 grams).
I
Additionally, the Intervenor's reference to the recent spent fuel shipment as less than 100 rers radiation dose was irrelevant since it was stored for twenty years (by Intervenor's own admission in Contention XXIV) and did not raise any fact issue about the 4700 grans of fuel presently irradiated by use within the reactor.S/
In sunnary, the UCLA application asks a renewal of its Part 70 license to possess:
4700 grans U-235 (irradiated) 4700 grams U-235 (fresh) 2 curie Pu-239 10 CFR s 73.6 exempts licensees with SNM irradiated to a dose of 100 ren at three feet fron various regulations, as does 10 CFR @ 73.60, and 10 CFR % 73.67 states the safeguards requirenents for licensees possessing SNM of noderate strategic significance as defined by 5 73.2(x).
Therefore, as demonstrated above, the only portion of the Part 73 safe-guards regulation applicable to the UCLA research reactor facility is 10 CFR 9 73.67.
Intervenor's assertion that 10 CFR Q 73.60 is applicable to the UCLA research reactor facility is clearly demonstrated to be unsupported and legally incorrect by the above analysis of 10 CFR Part 73 and should be disnissed.
t Further,10 CFR S 73.67 contains no requirement for protection against sabo-tage but only requires the licensee to have a physical protection systen which provides early detection and assessment of unauthorized access or activities.
10 CFR Q 73.67(a).
Intervenor's assertion that the Licensee's security plan must protect against sabotage is legally incorrect and should be dismissed.
The_Intervenor erroneously defines several areas surrounding the research reactor as controlled areas in subparts 1 and 2 of the conten-4/
Tr. 389.
l i tion as demonstrated by the following definitions.
10 CFR 6 73.2(h) states that " vital area" means any area which contains vital equipment.
Section 73.2(1) defines " vital equipment" as "any equipment, systen, device, or naterial, the failure, destruction, or release of which could directly or indirectly endanger the public health and safety by exposure to radiation. Equipnent or systems which would b? required to function to protect public health and safety following such failure, destruction, or t
release are also considered to be vital." Section 73.2(j) defines
" material access area" as "any location which contains special nuclear naterial, within a vault or a building, the roof, walls, and floor of which each constitute a physical barrier."
The Intervenor's designation in subpart 1 of the contention, of the third floor equipment roon (which contains the water demineralizer and the air supply systea for the reactor room)N and the eighth floor (roof) of Boelter Hall (where the reactor stack and exhaust fan are located)O as " control!ed access areas" is erroneous since it is obvious that neither the demineralizer nor the air supply system, nor the stack nor the exhaust fan need to function in order to protect public health and safety. Obviously, the air supply and exhaust system for the reactor roon provides air circula-tion for the University's personnel and students. Air supply systens exist in most large buildings and cannot be termed vital equipoent according to 73.2(i).
The stack merely channels emissions from the reactor and clearly its disfunction does not affect public health and safety, since the stack is only 5f UCLA application, p.III/4-1, para. 4 (The application was provided to the Board on September 2,1980).
6f UCLA application, p.III/4-7, para. 4.
a conduit and does not control the amount of emissions. Also, the basis originally given by the Intervenor for considering the above equipment as
" vital" was the possibility of sabotage to the equipment so that University personnel were adversely affected. This allegation attempts to apply power reactor safeguards to UCLA.
(See:
Staff Position on Unstipulated Conten-tions, December 1,1980). Thus it is apparent that the Intervenor's detempt to define the areas described in subpart 1 of the contention as containing vital equipment is frivolous and contrary to the Commission's definitions in the safeguards regulations in 10 CFR Part 73.
Subpart 2 of the contention alleges that six areas adjacent to the reactor roon "should be" isolated and secured.
This assertion goes beyond the regulations in 10 CFR Part 73 and appears to be a rulemaking request. The allegation of what Intervenor believes "should" be has no merit, since the areas described contain neither vital equipment nor special nuclear material (Sict), as implied by the Intervenor's use of the 1
word "should."
10 CFR s 73.67 sats forth safeguards required for facilities possess-ing amounts of St#1 of moderate strategic significance,U the amount in possession of UCLA.E (fliller affidavit, p.2) The requirements of this section of Part 73 oblige licensees to secure only controlled access areas I
defined as " areas affording isolation of material or persons" by 10 CFP, 73.2(z).
No requirenent exists to secure areas adjacent to controlled y
10 CFR s 73.2(x) defines SV1 of moderate strategic significance as less than fomula quantity (5000 grans) of U-235 enriched nore than 20% but more than 1000 grams.
10 CFR s 73.67 exempts SW1 emitting a dose of 100 reas at three feet from safeguards requirenents.
8f UCLA application, p.5, requests a license for 4700 gns U-235 (irradiated); 4700 gns U-235 (fresh) and Pu-239 as a 2 curie, Pu-Be neutron source.
areas nor to protect against sabotage (Carlson affidavit, p.4).
Addi-tionally, regardless of the Intervenor's assertion, made for the first time at the prehearing conference, entirely without basis, reason, orexplanation,(Tr. 382,392) the irradiated fuel inside the reactor does enit a dose of 100 ren at three feet and is therefore exempt from safeguards considerations as explained in the Staff affidavit, cited above.
Sabpart 3 of the contention asserts an inadequate guard force, lack of aechanical detectors, and failure to conduct routina searches. 'These allegations are without legal basis and should be disnissed.
10 CFR
@ 73.67(d)(8) requires only one watchman [ defined in s 73.2(d)] per shift.
Section 73.67 contains no requirement for guards [ defined in Q 73.2(c)],
j nor a requirenent for nechanical detectors.
10 CFR 9 73.67(d)(10) requires only randon searches of vehicles and packages leaving the controlled areas.
i i
Subpart 3.c. of the contention has no legal basis since section 73.67 does not require the fences, barbed wire, and redundant barriers described in this part of the contention. Additionally, there are no windoas in the reactor roon or storage vaultE/ so that subpart c.ii has no factual or legal basis.
The contention's subpart 3.d. assertions concerning unspecified open doors, " excess" number of keys and inadequate key control do not rest on any factual basis and are contradicted by affidavit by two j
nenbers of the Staff expert in safeguards matters, based on their personal l
observation and knowledge.
(iiiller affidavit, p.2; Carlson affidavit, p.5.)
l 9/
Application,p.III/4-4.
(Diagran of reactor facility).
Thus, the Intervenor has made a vague and unsupported assertion entirely lacking a factual basis and should be dismissed.
Subparts 3.e.i. and ii. of the contention do not raise an issue since 10 CFR 5 73.67(d)(7) allows escorted tours to controlled areas, whereas 3.e.iii is an unsupported allegation.
HEL personnel do not have " ready access" to controlled areas through connecting doors. The truth, as attested by Messrs. Miller (p.2) and Carlson (p.6), is that these connect-ing doors are locked and alarned - a fact easily observed by anyone visiting a
the facility. There is no factual basis to support the " ready access" assertion and it is clear that statements in Contention XX 3.e.i., ii., and iii. are frivolous assertions contrary to fact and law, easily ascertain-t able by reference to 10 CFR Part 73 and a tour of the facility.
IV. CONCLUSION The Staff subnits that it has clearly and adequately denonstrated that no genuine factual issue exists to support litigation of Contention XX by (A) sworn affidavits of two Staff nenbers with personal knowledge of (1) the radiation level of the irradiated fuel inside the UCLA research reactor (2) the anount of SNM in possession of the licensee; (3) the con-figuration of doors, locks, and key controls by UCLA, as well as a thorough knowledge of the Commission's Part 73 Safeguards regulations and their applicability; by (B) specific references to sections of 10 CFR Part 73 which expressly describe and define the equipment, nattrials, and areas subject to safeguards regulations and the particular safeguards required ~by the Conmission for non-power reactors and the type and amount
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of SHil at the UCLA facility; and by (C) reference to the descriptions and diagrans of the reactor and the building containing the reactor in the UCLA application for renewal of its license which application has been provided by the Staff to both the Board and the Intervenor.
The Intervenor, l
by Contention XX and during ai guaent at prehearing conference has provided no showing that the contention raises a genuine issue of material fact. The allegations mischaracterize the facts without pointing to any basis for belief.
The allegations also challenge the Commission's regulations and attempt to broaden the proceeding to include rulemaking.
It should be noted by the Board that nothing contained in the contention or Staff affidavits requires any knowledge of the written UCLA security plan submitted with the application, but merely requires a care-ful reading of 10 CFR Part 73; the information in the UCLA renewal appli-cation, and personal observation of the facility, all of which is publicly available information.
Based on the above discussion, references and attached affidavits, the Staff has clearly shown that Contention XX does not raise a genuine issue of material fact. An evidentiary hearing on this contention should not be held since such hearing would only result in unnecessary litigation a
and delay in considering renewal of the of the UCLA license.
Therefore, the Staff submits Contention XX is appropriate for sumary disposition and must be dismissed as a natter of law.
')& d h,0[~.....)
Res ectfully su
'tted
'~
Colleen P. Woodhead Counsel for NRC Staff Dated at Bethesda, !!aryland this 13th day of April,1981
17 _
8 STATE!iENT OF ltATERIAL FACTS AS TO WHICH NO ISSUE EXISTS 1.
The University of California at Los Angeles (UCLA) presently 4
i possesses less than 5000 grams unirradiated special nuclear material.
2.
The irradiated special nuclear material within the research reactor in Boelter Hall at UCLA enits a radiation dose of at least 100 rems at three feet, unshieldad, i
3.
The only vital equipment in Boelter Hall at UCLA is witnin the reactor room.
4.
The unirradiated SNM at Boelter Hall is stored in a locked and alarned vault of solid and secure construction.
S.
All doors permitting entry into controlled access areas in Boelter Hall are protected by both a controlled key and lock system as well as alarns which signal unauthorized entry.
i 6.
Access to keys for doors leading into controlled access areas is controlled by a system of accounting for use by authorized personnel.
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