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Response to Alternate ASLB Member 830422 Order Establishing 830524 Hearing Date.Lists Matl Facts Not in Dispute,Matl Facts in Dispute,Nrc Witnesses & Testimony,Exhibits & Time Necessary for NRC Presentation.Certificate of Svc Encl
	ML20023C230
Person / Time
Site:	05000142
Issue date:	05/13/1983
From:	Woodhead C; NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	;
References
	NUDOCS 8305170001
	Download: ML20023C230 (10)
	v • d • e

.

May 13, 1983 o

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ALTERFATE BOARD MEMBER JAMES A. LAUREN50N In the Matter of

)

THE REGENTS OF THE UNIVERSITY OF

)

Docket No. 50-142 CALIFORNIA

)

(Special Proceeding for (UCLA Research Reactor)

)

Contention II)

NRC STAFF RESPONSE TO ORDER BY ALTERNATE BOARD MEMBER I.

INTRODUCTION _

By Memorandum and Order (Ruling on Motions for Summary Disposition of Contentions II and XVIII) dated April 22, 1983, the Licensing Board denied the Staff's and UCLA's motions for summary disposition of Contention II and held that proceedings would be scheduled to determine the amount of UCLA reactor operating time devoted to commercial services.

The Licensing Board by Order of April 22, 1983 appointed an Alternate i

Board Member to resolve factual disputes concerning Contention II and to l

make recommendations to the Licensing Board about appropriate relief.

t By Order of April 22, 1983 the Alternate Board Member established a l

hearing date of May 24, 1983 for Contention II and directed the parties 1

to confer by May 6,1983 as to the possibility of proceeding with Contention II in some fashion other than an adjudicatory heari-o; as to the material facts in dispute and not in dispute, exhibits to be presented, issues of fact and law requiring hearing, recommended decision, witness DESIG!!ATED ORIGIIIAL B305170001 830513 DR ADOCK 05000 Certified By_

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lists, and a summary of specific facts to be proved. The Alternate Board Member directed the parties to submit by May 13, 1983 the proposed witness and exhibit lists, a sumary of witnesses' testimony, any stipulations reached concerning the above described matters, and each party's best estimate of the time necessary to present its case at hearing. The NRC Staff hereby responds to the Alternate Board Member's Order.

II. DISCUSSION On May 6,1983 the parties conferred by telephone but were unable to agree on a stipulation on any matter suggested in the Alternate Board Member's Order. Consequently, the parties identified proposed witnesses and the general contents of their testimony and proposed exhibits. During the conference call the UCLA representative (Mr. Cormier) suggested a stipulation between UCLA and CBG which would condition the UCLA reactor operating license so that less than 50!; of the reactor's annual operating hours could be used by aryone engaged in business activities if CBG would withdraw Contention II.

No agreement was reached on the UCLA proposal during the conference call, but the CBG representative agreed to consider a written proposal when received.

CBG indicated during the conference that it intends to request a subpoena l

from the Alternate Board Member for all UCLA operating logs, annual reports, inspection reports, Radiation Use Comittee Minutes, l

Audits and financial ledgers relevant to the NEL from 1960 to present.

In light of these two subjects of the parties' discussion, it appears L

J

that the Alternate Board Member's ordered schedule might be difficult to maintain. However, since the resolution or the effect of these matters on the schedule is not known, Staff has prepared a list of those material facts it believes are or are not in dispute concerning Contention II, with appropriate references, and hereby informs the Alternate Board Member of its one proposed witness and a summary of the contents of his testimony.

Although the Staff suggested the possibility of prefiling written testimony, CBG objected to filing written testimony in favor of oral, direct testimony.

A.

Material Facts Not in Disnute The Staff believes the following material facts are not in dispute by CBG based on the affidavits of two CBG witnesses filed January 12, 1983 in response to Staff's and Applicant's summary disposition motions. The two CBG affidavits referenced are " Declaration of Steven Aftergood as to Contention I" (Aftergood affidavit) and " Declaration of l

Leo Baefsky" (Baefsky affidavit).

1.

The UCLA research reactor is used for instruction and research.

Reference:

"As is readily seen, instruction and research by the Nuclear Energy Lab represents a very small fraction of the actual use of the reactor, less than 20%." Aftergood, 1 7.

2.

In 1981 the NEL staff used the reactor 113 hours0.00131 days 0.0314 hours 1.868386e-4 weeks 4.29965e-5 months .

Reference:

"Furthernore, the "NEL Staff" category under "Research Usage" is vastly inflated for 1982, with 82 of the reported 113 hours0.00131 days 0.0314 hours 1.868386e-4 weeks 4.29965e-5 months actually an effort to reduce Argon-41 measurements as part of the relicensing effort." Aftergood, 1 9.

3.

The UCLA reactor is used for classroom instruction.

f

Reference:

" Classroom instruction, on the other hand, accounts for only 7 to 12% of the total port hours for the most recent three years." Aftergood, 1 10.

4 The UCLA research reactor was used during 1980-82 for the following UCLA classes:

1980-81 1981-82 Engr. 135AL Engr. 135AL Engr. 135BL Engr. 135BL Engr. 135F Engr. 135F Engr. 139A Engr. 139A Phys. 180A Chem. 184A Chem. 184 E&SS 298 Chem. 221K Phys. 180A ESS 298 Engr. X497.17 Engr. X497.17

Reference:

Aftergood, 1 12.

5.

UCLA has had between 90-190 students per year enrolled in reactor-related classes over the years 1979-1982

Reference:

Aftergood, 1 13.

6.

There are graduate students at UCLA enrolled in NEL facility related programs.

Reference:

(

Aftergood, 1 13.

7.

The UCLA reactor was used for the following purposes during 1976-79:

l Engineering classes NEL experiments l

Maintenance 1

UCLA users l

Colleges and Universities i

Demonstrations Commercial

Reference:

i Aftergood, 1 7, and Attachment A.

1 l

8.

A basic principle of costs accounting is that costs should follow services rendered.

Reference:

Baefsky, 1 8 9.

UCLA provided 3328 hours0.0385 days 0.924 hours 0.0055 weeks 0.00127 months of student instruction in reactor-dependent classes in 1981-82.

1

Reference:

Aftergood, Attachment D.

10. The UCLA reactor was operated for at least 52.78 hours9.027778e-4 days 0.0217 hours 1.289683e-4 weeks 2.9679e-5 months in 1980-81 for student instruction.

Reference:

Aftergood 1 12

11. The UCLA reactor was operated for at least 27.31 hours3.587963e-4 days 0.00861 hours 5.125661e-5 weeks 1.17955e-5 months in 1981-82 for student instruction.

Reference:

Aftergood, 1 12.

12. UCLA users of the reactor, in addition to engineering classes are persons in the Chemistry, Geology, Geophysics, Meteorology, ard Nuclear Medicine departments.

Reference:

Aftergood, Attachment A, p. 2.

13. Other colleges and universities using the UCLA reactor are:

California Institute of Technology; California State University, Los Angeles; California Polytechnic Institute; California State University, Northridge; Harvey Mudd College; Mt. San Antonio College; Pierce College; University of California, Santa Barbara; and University of California, San Diego.

Reference:

Aftergood, Attachment A, p. 3.

14 The UCLA reactor was operated for an average of 321 port hours, 278 hours0.00322 days 0.0772 hours 4.596561e-4 weeks 1.05779e-4 months of actual run time, and 197 equivalent full power hours i

during the years 1976-1979.

Reference:

Aftergood, Attachment A, p. 2.

15. The UCLA reactor was operated for 159-294 equivalent full power hours between 1977-1981.

Reference:

Aftergood, Attachment B.

16. Total operating hours of the UCLA reactor for 1980 & 1981 were 381 and 364 respectively.

Reference:

Aftergood, Attachment B.

. 17. Principle No.19 of accounting principles in the publication College and University Business Administration states

" Revenues and expenditures of auxiliary enterprises should be shown separately from the institutional operations."

Reference:

Baefsky Affidavit,17.

18. Of the total 1284 port hours of operation of the UCLA reactor between 1976-1979, 365 were categorized as commercial.

Reference:

)

Aftergood, Attachment A, p. 2.

19. The non-profit method of accounting, commonly designated as fund accounting, is intended to prevent resources designated for a particular use from being used for any other than that designated use. Fund accounting techniques, aside from reporting sources of j

resources acquired, specifically seek to report the extent to which the pattern of usage has complied with a pre-arranged plan called the budget.

Reference:

Baefsky, 1 12.

20. The NEL full time staff salaries are costs incurred so that the facility is available to support the educational program of the School of Engineering and Applied Science at UCLA.

Reference:

Affidavit of Neill C. Ostrander Concerning Contention II, UCLA Motion for Summary Disposition of Contention II, September 1, 1982.

21.

For 1980-81 total NEL salaries and benefits charged to reactor costs were $172,921.00.

Reference:

1980-81 Financial Cost Statement, UCLA Nuclear Energy Laboratory, Attachment B to UCLA motion for summary disposition, of Contention II September 1, 1982.

22. The total reactor costs for 1980-81 were $337,958.

1980-81 Financial Cost Statement.

Id.

23. Total NEL budget costs for 1980-81 were $416,904, 1980-81 Financial Cost Statement, Id_.

24. Supplies, equipment, and indirect costs of the UCLA reactor totalled $126,160 for 1980-81.

1980-81 Financial Cost Statement. Id.

. 25. The amount of $172,921 paid for NEL personnel salaries is more than half of the total $337,958 costs of the UCLA reactor in 1980-81.

B.

Material Facts in Dispute The NRC Staff helieves that the following matters are in dispute with regard to Contention II:

1.

Operation of the reactor is not the sole use of the reactor 2.

The use of the UCLA reactor by the person engaged in an ore-assaying business is not appropriately termed commercial activity by the university.

C.

Staff Witness and Contents of Testimony The Staff witness will be Mr. Jim C. Petersen, Senior Analyst for Financial Issues in the Commission's Office of State Programs. Mr.

Petersen's testimony will demonstrate that the predominant use of the UCLA reactor is educational and that the non-academic use is at least questionably deemed commercial, but is not a substantial use, no matter how characterized, in view of the proper application of standard accounting principles to the UCLA reactor. Mr. Petersen's written testimony will be filed prior to hearing.

D.

Exhibits The Staff will present no exhibits.

i

, - - - - -, - ~ _,, - -. _ -

t 1,

E.

Length of Time 14ecessary for Staff Presentation The Staff believes direct examination of Staff's witness will require no more than half an hour.

Respectfully submitted,

]

Colleen P. Woodhead Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of May, 1983

O e

UNITED STATES OF AMERICA NUCLEAR REGULATORY CON 11SSION BEF^1E THE ALTERNATE BOARD MEMBER JAMES A. LAUREN50N In the Matter of

)

Docket No. 50-142 THE REGENTS OF THE UNIVERSITY OF

)

CALIFORNIA

)

(Special Proceeding for

)

Contention II)

(UCLA Research Reactor)

)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ORDER BY

, ALTERNATE BOARD MEMBER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of May 1983:

John H. Frye, III, Chairman William H. Cormier. Esq.

Administrative Judge Office of Administrative Vice Atomic Safety and Licensing Board Chancellor U.S. Nuclear Regulatory Commission University of California at Washington, DC 20555 Los Angeles 405 Hilgard Avenue

Dr. Emmeth A. Luebke Los Angeles, CA 90024 Administrative Judge Atomic Safety and Licensing Board Christine Helwick, Esq.

U.S. Nuclear Regulatory Commission Glenn R. Woods, Esq.

Washington, DC 20555 Office of General Counsel 2200 University Avenue

Glenn 0. Bright 590 University Hall administrative Judge Berkeley, CA 94720 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Roger Holt, Esq.

Washington, DC 20555 Office of City Attorney 200 North Main Street Committee to Bridge the Gap City Hall East, Room 1700 1637 Butler Avenue, #203 Los Angeles, CA 90012 Los Angeles, CA 90025 Daniel Hirsch John Bay, Esq.

Box 1186 3755 Divisadero #203 Ben Lomond, CA 95005 San Francisco, CA 94123

Nuclear Law Center

Atomic Safety and Licensing c/o Dorothy Thompson Board Panel 6300 Wilshire #1200 U.S. Nuclear Regulatory Commission Los Angeles, CA 90048 Washington, DC 20555 Robert M. Meyers

Atomic Safety and Licensing Appeal City Attorney Board Panel Lynn Naliboff U.S. Nuclear Regulatory Commission Deputy City Attorney Washington, DC 20555 1685 Main Street, Room 310 Santa Monica, CA 90401

Docketing & Service Section

Carole F. Kagan, Esq.

Office of the Secretary Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nucleer Regulatory Commission Washington, DC 20555 Washington, DC 20555

James A. Laurenson Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555

14 _, -

Colleen P. Wobdhead Counsel for NRC Staff f

ML20023C230

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