ML20024C362

Reply Opposing Util 830630 Motion to Reopen Contention II Proceedings.Motion Untimely,W/O Proper Foundation & Unnecessary.Proferred Matter Irrelevant.Declaration of Svc Encl

ML20024C362
Person / Time
Site:	05000142
Issue date:	07/06/1983
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8307120555
Download: ML20024C362 (8)

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COMMITTEE TO BRIDGE TIE GAP July 6, 1983 -g 7 )x 1637 Butler Avenue, Suite 203 Los Angeles, Californornia 90025 (

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! UNITED STAIES & AKERICA U@EA*

, NUCLEAR REGUIATORY COMMISSION 4

Cu 7 i BEFORE TliE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-142 TliE REGENIS T THE UNIVERSITY

& CALIFORhIA (Proposed Renewal of

,i Facility License)

(UCLAResearchReactor)

f  ; CBG'S REPLY TO APPLICANT'S MOTION TO RE&EN TlE CON 7ENTION II' PROCEEDINGS 1

I. INTRODUCTION 1

F On June 30, 1983, concurrent with 6hbmitting its rosponse to CBG's 1 ,

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proposed findings of fact and conclusions of law in the special proceeding

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on Contention II, Applicant moved the presiding officer _to reopen those

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proceedings. CBG opposes the motion as untimely, without proper foundation,

.f 1 d and most importantly, unnecessary.

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II. DISCUSSION 1 ,

.- As is well settled, the proponent of a motion to reopen the record 3

has a heavy burden to bear. Kansas Gas & Electric Connany et al (W61f Cenerating 4

Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978): Duke Power Co. (Catawba Nucle ar Station, Units 1 & 2), AMB-359, 4 NEC -619, 620 (1976).

The action will be denied if it is untimely and the matter raised is

e t insignificant. The motion may be denied, even if timely, if the matter raised y

is not grave or significant. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Statien), AMB-138, 6 AEC 520, 523 (1973): Vermont Yankee,ALAB-126,6AEC393.(1973): Vermont Yankee, AIAB-124, _6 AEC 365 (1973).

v In the case of the instant motion, the Applicant has not born its D

burden, and the* matter raised is both untimely and withoutfsignificance.

Fuithermore, to reopen the record at this point, which r:ust of right afford

!! all parties an opportunity to test the proferred new' evidence '(Florida Power and Light Company, St. Lucie Plant, Unit 2, ALAB-355, 3 NRC 830,1976), would pose a significant burden on all parties as well as unnecessary delay in a l matter ripe for decision. Lastly, the proferred matter is irrelevant to the proceeding at hand.- For these reasons the motion must be denied.

There is some irony that the matter which Applicant now wishes to introduce new evidence regarding is on a subject raised first by Applicant at hearing (its assertion that it was University policy not to offer services

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to outside users if those services were available elsewhere) and to counter

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i1 assertions raised first at hearing by Applicant's own witness (Dr. Kalil,

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who testified before any mention of the matter by CBG that the services he purchased from UCIA _were services available elsewhere, including commercially,

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with special reference by Dr. Kalil to General Activation Analysis as a

' commercial firm in competition with him). Further it was only through

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insistence of counsel for Applicant that the letter from General Activation that Applicant now finds of concern was introduced in evidence.

The primary reason for discussion at hearing as to whether the, activation analysis services, and delayed neutr'an counting services, sold by UCLA were available elsewhere was because of UCM's insistence that such services were not available elsewhere. UCLA raised the matter, asserting a University policy to that effect, and said further that the $65/ hour fee was so taxpayers don't subsidize a commercial activity. TR 46,145,159, 75 Commercial activity in these contexts was already referred to as a " profit-making" activity. See TR 170, for example. There was considerable discussion that the rate UCLA charged was not based on an assessment of what it cost UCM to provide the service (estimated by UCLA as 20% of what it charges),

but on what the mark'et will bear. TR 46,139.

Applicant's own witness, however, contradicted the assertion that the services he obtained from UCIA vere not available elsewhere, and raised

, the issue that in fact these services were available " commercially."

Dr. Kalil testified that most of his samples come in by mail or UPS,: and that one of his competitors is Atomic Energy.of Canada, which he said

.i offerred the same service to people in this country " commercially." TR 239.

Dr. Kalil me- the one who brought up General Activation, saying that many of the services offered by UCLA to customers such as himself or Dr.

Wasson were also offerred commercially by General Activation. Dr. Kalil

, ' was the one wh'o first indicated it is a for-profit, private firm, which

, of course it is, and that it is one of his competitors, although 100 times more expensive, in part because of UCIA's very low charge for reactor rental.

TR 241-2.

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l The issue of whether GA did offer delayed neutron counting was pushed by counsel for- Applicant, who insisted no other facility other than UCLA's had a pneumtic tube " rabbit system" necessary for delayed neutron counting. The letter from GA was introduced into evidence, at Mr. Cormier's insistence, in part as proof that Mr. Cormier's assertions a

that the services offerred by UCLA were unavailable elsewhere and thus consonant with UCLA policies in the matter of sale of services was not Correct.

Applicant attempted to demonstrate thL t the service provided

. Dr. Kalil was unavailable elsewhere their om witness made clear that the unavailability was a relative matter related to the low price UCLA charged. Kalil said the service he provides his customers they "cannot get it any place else at a competitive price we offer." TR 276.

There never was an assertion by Applicant's witness Dr. Kalil, nor by CBG witnesses, as to what class of license General Activation holds, properly or not. The issue had to do with UCLA's assertion that it, UCLA, was not involved in a sale of service when it sold to Dr. Kalil because it was merely following a University policy of providing services not

, available elsewhere. That assertion was, of course, disproven by the evidence about GA and other outfits. Furthermore, UCLA claimed it was UCIA policy to not have taxpayers subsidize outside activities (TR 145, 159),

yet probative evidence was introduced that it cost over $700 per hour to operate the reactor, yet UCLA only recovered $65 per hour when it sold to commercial firms (Peterson and Baefsky testimony)." Applicant's witness Kalil and CBG witnesses Hirsch and Aftergood, as well as the GA letter introduced into evidence, demonstrated that such taxpayer subsidy created l

l unfair competition with commercial (i.e., for-profit) firms unable to offer i

the same service at such a low price because they did not have the taxpayer l

l subsidy, being private, for-profit firms.

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. Applicant, five weeks after close of hearing, now wishes to re-open the proceeding on a matter not' addressed at hearing (the class of license of UCIf!s?6ompetitors). If the matter was relevant to the other issues j on the subjects raised at hearin6 h Applicant--and it does not appear to i

be so--then Applicant should have raised the matter at hearing. It had the opportun! ty, for example, to re-cross its witness Kalil as to his i

j statements about General Activation, but chose not to do so.

i Applicant desires now, weeks after findings have been submitted and

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after even the replies to. findings have been served, to reopen the record l

on this . insubstantial and irrelevant point, a point which it could have f addressed at hearing had it chosen to do so. The burden of a reopened i

I proceeding, with all it entails, should not be borne merely because counsel 1

for Applicant forgot to ask its own witness a' question on recross.

l Furthermore, Applicant has failed to even demonstrate the existence of the supposed evidence it wishes to have introduced. There is no #Lffidavit i .,

lV.-7 - nor any document attached to Applicant's motion' demonstrating the existence of the supposed fact. Even were it not untimely and irrelevant, it is I .~4 p" , not probative. There is no evidence being offered, and thus nothing for opposing parties to scrutinize and respond to. (Therequestthat" official notice".be taken might well be proper if UCIA proferred an NRC reco$1 of which it requested official notice and provided parties an opportunity to review'it and ze spond thereto. But no official records are offered, and thus no foundation whatsoever for UCIA's motion has been demonstrated, i

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. particularly important in light of the heavy burden for reopening of records.

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! Parties are guaranteed an opportunity to respond to evidence offerred without o - sponsorship /authenticationonthebasisof"officialnotice";thereis no evidence here to -even review for its truthfulness).

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lastly, the mtter is irrelevant to the issue at hand and outside l the scope of the proceeding ordered by the ASLB. Whatever class of license l GA may currently be operating under--and no evidence has been introduced on that mtter one way or the other--is not an issue here, which solely deals with what class of license UCIA is entitled to under the regulations.

Whether GA, if it currently has a Class 104 license, which has not been ~

demonstrated, is appropriately so classed is clearly outside the scope of the proceeding, although this proceeding may affect the classification of other licensees as precedent because this issue has never before been litigated. Furthermore, the percent of use of GA's raactor that is for 4

commere$al sales versus licensed research and development is also outside the scope.

It is true that CBG has said that among the reasons Con 6ress insisted on Class 104 licensees not being usod substantially for commercial purposes was to prevent unfair competition. However, the Congressional mandate has never before been enforced, and should it now be'done so, other reactors too say be reclassified. However, this is all irrelevant to what Class of license UCIA is entitled to. GA'sproperlicense,orwhetherthe5eis s

a need for the statute or regulation, are all outside the scope of this ,

proceeding, which must enforce the statute and regulation without regard to p.orsonal views'about whether one likes the statute or not and to other licensees not a party to the proceeding.

In sum, the issue raised by CA's availability for delayed neutron counting and neutron activation analysis is independent of its class of license. GA is clearly a private, for-profit firm offering commercially the same services UCIA is offering, yet being undercut by the substantial taxpayer subsidy at UCIA. Applicant had an opportunity to pursue these matters at hearing and did not do so: it is not raising the matter in a timely fashioni it has not put forward any evidence that it profers for

reopening, just the unsupported assertions of counsel; and the issue  :

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, of GA's class of license is outside the scope of this proceeding, which is restricted to determining whether UCLA has been properly classified in the past and 'ihether it is entitled in the future to a Class 104 license, a

The icotion for a reopened proceeding, burdensome to all, should bc denied.

i RespNtfullysubmitted,

, i d r-Daniel Hir ~ h President COMMITTEE TO BRIDGE ThT CAP dated at Ben lomond, CA this 6th day of July,1983 Note: If it assists in avoiding the burdens of a reopened proceeding, CBG will stipulate that when it has referred to commercial firms offering for sale the same. services sold by UCIA, it means private, for-profit companies while making no statement about the Class of License such firms may hold or ray be entitled to. CBG, however, will not concede that any particular firm holds, or is entitled to, a specific. class of license, a matter which, as indicated atove, is largely irrelevant to the matter at hand, without nn opportunity to review evidence to that effect and test it, as through cross-examination. As indicated above, such reopening of proceedings for that purpose seems uncalled for.

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UNITED STATES OF AMERICA N' NUCLEAR REGUIATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD M,;f

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2 In the Matter of l Docket No. 50-142 \

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-F' TIE RECENTS OF THE UNIVERSITY 3

& CALIFORNIA (Proposed Renewal 'of/

Facility License)

(UCLA Research Reactor)

I DECIARATION OF SERVICE I hereby declare that copies of the attached: CBG'S REPLY TO APPIJCANT'S VOTION TO REOPEN THE CCETENTICli II PROCEEDINGS 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 dates 6th day of July, 1983 .

I John H. Frye, III. Chairman Christine Helwick Atomic Safety & Licensing Board Glenn R. Woods U.S. Nuclear Regulatory Commission Office of General Counsel 590 University Hall

' Dr. Ea=sth A. Imebke 2200 University Avenue Adminiatrative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay l Washington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 Dr. Glenn O. Bright Mainistrative Judge Ms. Lynn Naliboff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Deputy City Attorney City Hall vashingtas, D.C. 20555 1685 Main Street -

Chief Docketing and Service Section Office of the Secretary . Dorothy Thompson U.S. Nuclear Regulatory Commission Nuclear Iaw Center .

Washington, D.C. 20555 6300 Wilshire Blvd., #1200 Ios' Angeles, CA 90048 Counsel for NRC Staff Vs on DC 55 7 mi et a ensing B ard Panel attention: Ms. Colleen Woodhead U.S. Nuclear Regulatory Commission Washington, D.C. 20555

, William H. Cormier Ms. Carole Kagan, Esq.

Office of Administ2a tive Vice Chancellor Atomic Safety and Licensing Board Panel

! University of California U.S. Nuclear Regulatory Commission 405 Hilgard Avenue

• Washington, D.C. 20555 Los Angelse, California 90024

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• by express krinu'{ 4xl Daniel Hirsch President CCMKITTEE TO BRIDGE THE CAP

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