ML20023C000

Motion for Reconsideration of ASLB 830422 Memorandum & Order to Clarify Scope of Contention II Proceedings.Certificate of Svc Encl.Accounting Based on Actual Use of Reactor Demonstrates That Costs Attributed to Noncommercial Use

ML20023C000
Person / Time
Site:	05000142
Issue date:	05/04/1983
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305090473
Download: ML20023C000 (7)

Text

.

O e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0 ]' '? '

,33 gg -6 IM U8 In the Matter of )

) Docket No.,50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed _ Renewal of Facility OF CALIFORNIA ) License Number R-71)

)

May 4, 1983 (UCLA Research Reactor) )

)

_ MOTION FOR RECONSIDERATION OF BOARD'S APRIL 22, 1983 ORDER I

l DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK 590 University Hall 2200 University Avenue Berkeley, California 94720 Telephone: (415) 642-2822 Attorneys for Applicant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA l

p'nwana

. PDR o7

O I. THE MOTION University moves that the Board reconsider its April 22, 1983 Memorandum end Order to the extent necessary to clarify that the score of v.he factual e.nd legal questions to be examined in the further proceedings on Contention II includes consideration of whether ,

se the activity in questi'on is "commerical" and whether or not an accounting method based on actual "use of the reactor" can be fairly used to describe the "use of the facility."

II. INTRODUCTION In its Order b[ of April 22, 1983 the Board, inter alia, denied University's and Staff's motion for summary disposition of CBG's Contention II, which asserts that University has applied for the wrong class of license for its UCLA facility. The Board indicated in its Memorandum that further proceedings on the .

Contention would be conducted by an Alternate Board-Member pursuant to Sec. 2.722 (a) (3) . In the Scheduling Order / of the Alternate Board Member parties were directed to comply with certain l

i 1/ " Memorandum and Order (Ruling on Motions for Summary l Disposition of Contentions II [ Class of License) and XVIII Financial Qualifications])" , (Order).

2/ " Order Scheduling Hearing on Contention II Before Alternate l Board Member", dated April 22, 1983 (Scheduling Order), by Administrative Law Judge James A. Laurenson, who was appointed Alternate Board Member in the Board's " Order Appointing l Alternative Board Member" of the same date.

l l

I prehearing requirements including reaching agreement on the i

" issues of fact and law that will require a hearing and i

recommended decision." Scheduling Order at 2. University seeks  !

! clarification of the Board's Order because of the bearing the Order may have on the scope of the issues of fact and law to be considered at the hearing on Contention II.

4 j III. DISCUSSION l In its Prehearing Conference Order  ! the Board f identified two major disagreements between the parties on

' Contention II. The first concerned the " proper accounting method";

l the second concerned the " actual amount of hours devoted to l commerical use". March 23 Order at 15. In its April 22 Order the 1

I Board characterized the first dispute as essentially a question of i

the interpretation of 10 C.F.R. Sec. 50 22 and the Board accepted CBG's interpretation of the regulation. Order at 7. The Board

'- characterized the second dispute as factual and directed that further proceedings be held. Id at 8.

2 i

I l

! 3/ "Prehearing Conference Memorandum and Order", dated March 23, 1983 (March 23 Order).

i i

j s

t .

i l University respectfully disagrees with the Board's (and CBG's) interpretation of 10 C.F.R. Sec. 50.22. In the first place, Sec. 50.22 does not state that "if the reactor is used so that more than 50% of its costs are attributable to commerical ,

activity . . . " Order at 7 (with emphasis on the words " reactor" and "its" supplied). In relevant part, Sec. 50.22 actually states ". . . if the facility is to be used so that more than 50 percent of the annual cost of owning and operating the facility is devoted to . . . . the sale of services, other than research and development or education or training." (Emphasis supplied).4 / The distinction is significant because UCLA's reactor operates less 1

than 5% of the time and the costs incurred in operating the facility '

i are not fairly accounted for by simply referring to the " port-

?

hours" of reactor usage. In its deliberations on Contention II the Board will benefit if it has a clearer understanding of how the reactor is used in support of the education and research function of the Nuclear Energy Laboratory. University intends to provide an explanation of facility operations as part of the further proceedings on Contention II.

In the second place, the Board's conclusions assume that i

4/ University notes that in its April 4 pleading CBG misquotes the relevant portion of Sec. 50.22 by substituting the word

" reactor" for the word " facility". Response to Prehearing

, Conference Memorandum and Order of March 23, 1983, at 16.

3

the activity being challenged by CBG is unquestionably "commerial".

The Board, however, does not provide the factual or legal basis for such a conclusion. University has argued E/ that the activity questioned should not be considered " commercial" within the meaning of Sec. 50.22. University's argument was framed in the alternative:

the activity was not commercial, but even if viewed as " commercial",

accounting for the costs of facility operations demonstrates that is is not substantially commerical. Only the second part of the argument has been addressed by the Board and parties.

University does not seek to re-argue its summary disposition motion nor to disturb the Board's ruling denying that motion. However, for the purpose of the further proceedings on Contention II University wants to insure that it will have the opportunity to present relevant evidence on the matters discussed above and that it will not be precluded from doing so on account ,

of the discussion appearing in the memorandum section of the Board's Order. The proper interpretation to be given to Sec. 50.22 is apparently a matter of first impression for the Commission. The Board's decision should rest on a complete factual record.

5/ See University's " Motion for Summary Disposition", dated September 7, 1982, at 30-32.

IV. COI:CLUSION For the reasons above, University respectfully requests that the Board grant University's motion.

Dated: May 4, 1983 DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK

~~

By:_  ! " '

William H. Cormier Representing UCLA 6

l l

l I

l l

l l

l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility OF CALIFORNIA ) License Number R-71)

)

(UCLA Research Reactor) )

CERTIFICATE OF SERVICE I hereby certify that copies of the attached: MOTION FOR RECONSIDERATION OF BOARD'S APRIL 22, 1983 ORDEm faaY-6 c11 :1H in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: May 4, 1983 '

uli .

John H. Frye, III, Chairman

• Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, CA 90025 Washington, D.C. 20555 Mr. John Bay, Esq.

Dr. Emmeth A. Luebke

• 3755 Divisadero #203 Administrative Judge San Francisco, CA 94123 ATOMIC SAF3TY AND LICENSING BOARD U.S. Nuclear Regulatory Commission Mr. Daniel Hirsch Washington, D.C. 20555 Box 1186 Ben Lomond, CA 95005 Mr. Glenn O. Bright

• Administrative Judge Nuclear Law Center ATOMIC SAFETY AND LICENSING BOARD c/o Dorothy Thompson U.S. Nuclear Regulatory Commission 6300 Wilshire Blvd., #1200 Washington, D.C. 20555 Los Angeles, CA 90048 Ms. Carole F. Kagan, Esq.

• Ms. Lynn G. Naliboff ATOMIC SAFETY AND LICENSING BOARD Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washington, D.C. 20555 1685 Main Street Santa Monica, CA 90401 i Counsel for the NRC Staff i OFFICE OF THE EXECUTIVE LEGAL DIRECTOR Chief, Docketing and Service Section l U.S. Nuclear Regulatory Commission OFFICE OF THE SECRETARY l Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James A. Laurenson

• Administrative Judge ATOMIC SAFETY AND LICENSING BOARD U.S. ,

Nuclear Regulatory Commission Washington, D.C. 20555 A WILLIAM H. CORMIER

• EXPRESS MAILED. UCLA Representative i

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

_