ML20024F247
| ML20024F247 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 09/06/1983 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8309090130 | |
| Download: ML20024F247 (24) | |
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Septemb~er 6, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of THE REGENTS OF THE UNIVERSITY OF Docket No. 50-142 CALIFORNIA (Proposed Renewal of Facility (UCLA Research Reactor)
License)
'NRC STAFF OBJECTIONS TO RECOMMENDED DECISION BY ALTERNATE BOARD MEMBER I.
INTRODUCTION On July 12, 1983, the Alternate Board Member issued his advisory opinion to the Licensing Board after holding a special proceeding to determine the use of the UCLA reactor. This matter was raised as an issue in Contention II which alleges that UCLA must obtain a commercial license pursuant to 10 CFR 5 50.22. The Alternate Board Member's Recommended Decision (Decision) rejected the documentary evidence of the UCLA academic program and the optaions of all the expert witnesses who testified and substituted his own opinion of reactor uses. Based on this assessment of reactor
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use, the Alternate Board Member recommended that UCLA be required to establish a new and unique method of recording and reporting reactor operational uses termed " console hours," that educational / training use be recorded regardless of other concurrent use, and that the UCLA Class 104c license be conditioned to limit the " console hours" of commercial reactor use to less than 50% annually.
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. i Pursuant to the Licensing Board's order, the parties may coment on, and provide objections to, the Alternate Board Member's Decision on or before September 6,1983.M In accordance with that order, the NRC Staff's objections are submitted herewith.
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Specifically, the Staff objects, and submits that the Alternate Board Member erred with regard to, the following findings of fact and 4
recomendations of the Alternate Board Member:
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A.
The finding that UCLA used the reactor more than 50% for I
i comercial purposes during one year. Decision, pp. 27, 32, Finding 28.
l B.
The definition of " console hour" and use of " console hours" for assessing educational use of the reactor. Decision, pp. 11, 23, 26 Finding Number 5, p. 28.
C.
The finding that pursuant to 10 CFR 5 50.22 the UCLA reactor is used only when operating. Decision, pp. 24, 30, Finding 16.
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D.
The recomendation that' UCLA be required to establish a method for reporting all reactor use in " console hours" to the Comission.
Decision, p. 33.
E.
The recomendation that the UCLA Class 104c license be conditioned limiting comercial use of the reactor to less than 50% of f
the " console hours." Decision, p. 33.
1/
The Board granted Mr. Hirsch's telephone request for an extension of time from the August 31, 1983, due date established at hearing, (Tr. 2495) to September 6,1983.
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II. BACKGROUND In February,1980 the Regents of the University of California applied for the second license renewal for the Class 104c operating license for the Argonaut University Training Reactor (UTR) at the Los Angeles campus.2_/ The Comittee to Bridge the Gap (CBG) petitioned to intervene in the license renewal proceedings in response to the Comisson's notice of opportunity for hearing.
Twenty contentions l
submitted by CBG were admitted for litigation. On Sep,tember 1,1982 Staff and Applicant filed motions for sumary disposition of all but two contentions.
In their motions Staff asked for dismissal of_ Contention II because it did not reflect the provisions of 10 CFR 9 50.22, and UCLA de-monstrated by affidavit that it was not engaged in any comercial activity so that i 50.22 provided no basis for the contention. On January 12, 1983, CBG filed affidavits in opposition to the motions, alleging that UCLA was engaging in coninercial activity because of
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J provision of sample irradiation services to a businessman. No legal argument was filed because of the bifurcated, two-step procedure established by the Board for response by CBG to the motions.3_/
The Board deferred ruling on this contention by Order of February 8,1983.
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The original license for the UCLA reactor was issued for a period of
-ten years in 1960. It was renewed for an additional 10 year term in 1971.
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On October 22, 1982 in response to a motion by CBG, the Board instituted a " bifurcated procedure." CBG was provided an extended '
period of time to submit affidavits to show factual disputes which, if not successful, could later be supplemented with legal arguments concerning the materiality and relevancy of factual disputes.
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By Prehearing Conference Memorandum and Order of March 23, 1983, the Board responded inter alia, to the University's request for rulings on the sumary disposition motions concerning Contentions II and XVIII.O The Board ruled that, although disputes concerning Contention II existed
~ about the appropriate accounting method to apply pursuant to 10 CFR f
6 50.22 and the hours of comercial use of the reactor, the materiality and relevancy of the disputes were not established. Memorandum and 3
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Order, pp.14-17. CBG and the City of Santa Monica (which had intervened as an interested muncipality in 1982) were instructed to
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file legal arguments opposing the sumary disposition motions by April 1, 1983. On April 4, 1983 CBG responded by asserting that research and educational use of the UCLA reacto'r were ".almost nonexistent" and had I
been replaced with " virtually exclusive" comercial activity, so that, in accord with 10 CFR i 50.22, UCLA must obtain a Class 103 comercial license. However, CBG did not d'ispute the UCLA documents submitted with i
i the University's sumary disposition motion showing costs of owning and i
operating the reactor set out in the financial statement for the UCLA Nuclear Energy Laboratory (NEL). CBG simply argued that all costs should be allocated on the basis of port hours of operational use of the reactor as reported by UCLA to NRC. CBG ignored the University's significant reactor-related curriculum and student enrollment and the demonstration i
by the University of the small costs devoted to provision of irradiation service to one commercial user. CBG argued that the Staff's and
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Contention XVIII alleged the University of California is not financially qualified to operate the UCLA research reactor. The Licensing Board granted sumary dispostion of that contention.
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. Applicant's allocation of the majority of costs of owning and operating the reactor to the University's educational purposes was an interpreta-tion of i 50.22 which would allow commercial util.ities operating power reactors to qualify for a Class 104c license if they were to use their facilities only one day a year for student instruction. CBG offered to i
prove that comercial use of the UCLA reactor exceeded 50% and that the reactor was no longer used for the education-research purpose for which j
it was licensed. However, paradoxically, CBG supported its argument with affidavits which incorporated UCLA documents showing that eight academic ccurses, eighty-eight students, several California colleges and universities, and science departments within UCLA in addition to the' school of engineering use the UCLA reactor for education and research.
Nevertheless, by Memorandum and Ordet of April 22, 1983 the Board found CBG's argument persuasive and adopted CBG's interpretation of 6 50.22 which would construe the' regulation to mean that Class 104 licensees must obtain a commercial license if more than 50% of the reactor operating time, regardless of costs, is used by persons outside the University for comercial purposes. Order at 8.
On this basis, the Board denied the sumary disposition mntions for Contention II, and appointed an Alternate Board Member to conduct proceedings to determine L
3 the extent to which the UCLA reactor is used for comercial and educational-research purposes and to report his opinion and recommenda-I tion to the Board. Order, at 8.
The Alternate Board member on the same l
day (April 22,1983) ordered that a hearing be held beginning May 24, 1983. On May 2, 1983 the Staff filed a petition for reconsideration of I
the Licensing Board's Order denying summary disposition of Contention II y
on the basis of CBG's interpretation of l 50.22. The Staff pointed out
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that the Intervenor's own evidentiary documents showed significant educational and academic research use of the UCLA reactor, that the large majority of costs incurred for the reactor are due to fixed UCLA NEL staff salaries, that the Board's implicit characterization of an academic, laboratory teaching tool as a production or manufacturing machine was inappropriate, that the affidavits submitted with the UCLA motion for summary disposition demonstrated the nominal non-profit port hour fee charged to all reactor users (academic and comercial), and that l
the reliance by the Board exclusively on UCLA reports of port hours of reactor operation was not reasonable. The Staff also pointed out the significance of the Board's ruling for the many other 104c licensees.
However, the Board deferred ruling'on Staff's petition and set out five t
issues raised in the petition for consideration by the Alternate Board 4
Member, without revision of its construction of 10 CFR 5 50.22.
The hearing was held May 24-26, 1983 and all parties filed proposed findings of fact and conclusions of law and reply findings in accord with the Alternate Board Member's orders. On July 12, 190' the Alternate Member issued his recommended decision.
III. DISCUSSION Upon review of the Alternate Board Member's Recommended Decision, i
the Staff believes it to be clearly erroneous in certain respects. The s
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rejection of the testimony and opinion of three expert witnesses in finance and accounting.on proper methods of allocating costs to uses, and substitution of the opinion of the Alternate Member about accounting for reactor use in a way that is cited in the decision as " approximations and 2
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7-value judgments," is not well founded. The finding that sale of services by UCLA to a businessman constitutes "comercial" sale of services by UCLA within the meaning of 10 CFR l 50.22 has no evidentiary basis. The finding by the Alternate Board Member that the UCLA reactor is not "used" unless it -is operating disregards the evidence that the reactor operates i
only 5% of the year and gives no import to the undisputed educational purpose of the reactor-related classes at UCLA which instruct more than 100 students in nuclear engineering, physics and chemistry. The recomendation that the Licensing Board require what would be, in effect, a unique method of recording reactor operation in " console hours," an estimate developed solely fer litigation of Contention II, is not possible for research use and is unnecessary. Finally, the license condition proposed by the Alternate Board Member is not an accurate reflection of 10 CFR 9 50.22. The Staff believes these errors are due to a misinterpretation of the evidence and of 10 CFR 5 50.22 as set out below.
A.
UCLA Does Not Use the Research Reactor For Comercial Purposes and The Alternate Board Member Erred in Finding That The Reactor Was Used More Than 50% for Comercial Purposes The Alternate Board Member's Decision states that comercial use of the reactor exceeded 50% in one year, and that UCLA "has been lax in policing the comercial use of its reactor. Little, if any attention was devoted to ascertaining that less than 50% of the use was for comercial purposes." Decision, pp. 26-27. The implication here is that UCLA is somehow culpable for the amount of reactor port hours of sample irradiation service to the one comercial user. However, this 6.
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. i implication is based on an unjustified opinion of reactor "uses" and a misinterpretation of the regulation at issue here.
The fundamental error upon which the Decision rests is the failure to distinguish between the primary and intended use of the reactor by the University (the licensee) and incidental services occasionally provided by the Licensee to other users. This confusion was created by a misinterpretation of the UCLA Reactor Usage reports submitted to NRC.
These reports show reactor operation in categories of users, and indicate a large amount of reactor port hours charged to a commercial user for the j
years 1979-80. The Intervenor used the Roactor Usage reports as basis f
for asserting that UCLA has been using the reactor for commercial 1
activities. The evidence otherwise is undisputed and irrefutable. The commercial activity is that of the outside user. The irradiation services provided by the University to the outside commercial user is only incidental to the Universit' 's use of the reactor and is not, nor is y
it intended to be, a commercial activity by the University. Only use by the licensee is at issue in the Commission's regulation, 6 50.22.
10 CFR l 50.22 states that a Class 104 reccarch reactor will be deemed a commercial one if the facility is "used so that more than 50 percent of the annual cost of owning and operating the facility is devoted to the production of materials, products, or energy for sale or commercial distribution, E to the sale of services, other than research and development or education or training." (Emphasisadded).
Nowhere does this regulation mention "50% of use" as indicated by the Decision. The regulation is aimed at costs incurred for comercial activities by the licensee, not port hours of operation.
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9-Section 50.22 was promulgated to address the Congressional concern that 104c research reactors might be unfairly used to compete with commercial facilities which must pay higher licensing fees. The 1970 Senate Report, which led to the regulation in 5 50.22, stated that if the Comission found a Class 104 licensee using its facility for substantial commercial or industrial activity, the Comission should determine whether such use is sufficiently substantial to require licensing under Section 103 of the Atomic Energy Act.5_/
The Commissiori's Statement of Consideration accompanying the rule, 10 CFR 5 50.22,6_/ explained the Congressional intent as implemented by the j
rule as follows:
The legislative history of Public l.aw 91-560 indicates that the principal purpose of the legislation was to subject new-applications for production and utilization facilities formerly licensed under section 104b. of the Act as research and development facilities--power reactors and fuel reprocessing plants--to licensing under section 103. The legislative history also shows that the Congress was aware that scme applications for facilities to be licensed under section 104c. as research reactors might also be considered "for industrial or comercial purposes" if such reactors had such a purpose to a significant extent [S. Rept. No. 91-1247, 91st Cong., 2d Sess., at 28 (1970)]. Such facilities might include, for example, research reactors that are used to produce radioisotopes for sale or that are used for neutron radiography on a commercial basis.
The amendments to 9 50.22 of part 50 which follow categorize as a facility "for industrial or comercial purposes" a facility designed or used so that more than 50 percent of the annual cost of owning and operating the facility is devoted to the production of 5/
Senate Report 91-1247, 12th Cong., 2nd Session, September 29, 1970.
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38 Fed. Reg.11445,(May8,1973), attached.
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materials, products, or energy for sale or commercial distribution, or for the sale of services, other than research and development or education or training. Under this construction, a license issued to a nonprofit educational institution for a f acility for education L
or training purposes only would continue to be licensed under section 104c. of the Act, since the licensed operation would not be devoted to production of goods or services for sale or commercial i
distribution.
(Emphasis added).
First, it should be noted that the clear intent of this rule is to i
assess the purpose of the reactor and the activities of the licensee since it is the license which is categorized as either " commercial" or "research and education." Secondly, the determining factor for the class of license is the purpose for the costs of the reactor. However, the Alternate Board Member did not consider the obvious educational purpose for which UCLA maintains the reactor and apparently equated UCLA's activities with that of the one commercial' user. This is patently incorrect. The record is clear that UCLA itself does nnt sell reactor services commercially, i.e., for, profit. All reactor users, academic end non-academic, are charged the same ($65/ hour) nominal fee, an amount established solely by comparison of the fee with that charged by other universities for sample irradiations, to implement the University's policy that " taxpayers do not subsidize research." Tr. 56,138-139, 168-170, 175, Decision p. 29, Finding 7.
The record is equally clear that the fee is not profitable to the University. Petersen, ff. Tr. 448 at 3; University Exhibit 3; Decision, p. 29, Findings 9,10. Yet, the Decision finds, without explanation, that, although the fee charged to academic researchers does not constitute a sale of services or connercial use, the same nonprofit fee charged to the one non-academic user does constitute a commercial sale. Decision, p. 25. This finding is
inherently contradictory and is based on the activity of the user, not the activity of the University which is the same for academic and non-academic users.
As repeatedly pointed out by Staff and UCLA, the regulation in t
10 CFR 6 50.22 requires commercial licenses for licensees who are engaged i
in substantial commercial activity. There is no evidence that UCLA is engaged in any commercial activity whatsoever in its use of the reactor.
I It is obvious that the reactor is located on a university campus and used i
by students enrolled in academic courses and the UCLA faculty. The sale i
of reactor services at a nonprofit fee to both academic users and a single connercial user alike cannot reasonably be deemed an intended i
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The dictionary definition of the commercial activity by the Univers1ty.
word" commercial"is"engagedinworkdesignedforthemarket."2/ The Intervenor's witness defined the term " commercial" as "for profit by intent." Tr. 668. There is no ' evidence of any use of the reactor by UCLA which is " work designed for the market," or "for profit by intent."
The evidence is conclusive that the reactor is used by UCLA for the purpose of education and research, that all costs are devoted to this purpose,(Tr. 70-71, 57-60, 149-150, UniversityExhibit3),andthatthe use by the commercial user is incidental.
It is also on record that the one commercial user provides a significant educational benefit to the l
University (Tr. 224-227).
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Although the Alternate Board Member made no explicit ruling on the University's assertion that it is not engaged in comercial use of the reactor, the entire thrust of the findings and conclusions of the Decision is that the incidental use of the UCLA reactor by one businessman for sample analysis is deemed comercial use by UCLA. For this reason, the entire advisory decision of the Alternate Board Member is based on an erroneous interpretation of th'e Reactor Usage reports and reliance on the Licensing Board's Order, supra, defining "use" as port hours of operation-according to the purpose of the user. The Alternate Board Member's finding that UCLA uses its research reactor for comercial purpose should l
be rejected by the Licensing Board.
1 B.
The Alternate Board Member's Opinion of the Proper Accounting of Educational Use of the Reactor in " Console Hours" is Not Supported by the Record.
j At hearing, the Intervenor, the NRC Staff, and the University each presented an expert witness in finance and accounting who presented opinions of the proper methods of allocating costs of the uses of the i
reactor. Decision, 18-22. The University's witness proposed an extremely conservative method of cost allocation by comparing the 292
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hours of reactor-dependent classes to the port hours of reactor operation used by researchers, both academic and commercial, without regard to the fixed costs of owning and operating the reactor. The University's witness, Mr. Robinson, testified that his method was conservative and only one of several which would be appropriate. He supported the cost accounting method used both by the NRC Staff witness, Mr. Petersen and eer%-+-ow w e
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theUniversity'sFinancialOffice.E Tr. 433. Contrary to this testimony, however, the Alternate Board Member stated that "[t]here was little agreement among the experts who testified on the issue of the proper accounting method."
Decisien, at 9.
As demonstrated above, this is incorrect. Mr. Robinsen and Mr. Petersen agreed that several methods would be equally valid i
according to standard accounting principles and even agreed that the j
method used by the CBG accounting expert was appropriate, but that his
,j definition of reactor "use," solely as port hours of operation without regard to the academic program, was not valid. Robinson, Tr. 433-434, 437, 440-441; Petersen, Tr. 462-463. Therefore, two expert witr. esses agreed as to several proper cost accounting methods, any one of which would result in allocation of the' majority of costs to academic instruction and research.
The data on which the two experts based their opinions were the University's exhibits showing t'h'e various classes which use the reactor, the number of hours those classes meet annually, the number of students enrolled in the classes, the University's records of reactor port hours l
of research users, both academic and non-academic, and University's l
l financial statement for the Nuclear Energy Laboratory.
However, the Alternate Board Member concluded that "[t]here is no accfrate or reliable data upon which to base an answer [to the question ofusesofthereactor]." Decision, at 22. Based on this conclusion, and a review of the opinions of the experts, the Alternate Board member 8f Petersen, at 4.
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stated that "none of these [ expert] witnesses presented the corract method for comparing academic and commercial uses of the reactor."
i Decision, at 24. The Alternate Board Member then stated that " console f
hours" of student time at the reactor, listed in University's Exhibit 5, should be added to the research uses shown in University's Exhibit 2.
j The Alternate Board Member devised a new chart of reactor use, and calculated that in on'e year the UCLA " commercial use" amounted to more than 50% of total use. Decision, pp. 25-26. However, as previously i
j explained, this calculation rests on a misinterpretation of the reactor usage report, and also misinterprets the meaning of " console hours."
The Decision states, at 11, that the NEL Manager, Mr. Ostrander,
" described a new method, called ' console hours,' for calculating use of the reactor." This is not correct. The transcript reference (Tr.157-158) cited in the Decision in support of this statement, contains Mr. Ostrander's explanition of a new " running time meter" installed at the reactor in February,1983. Mr. Ostrander did not mention " console hours" nor is his testimony in any way related to
" console hours." Console hours are estimates, made by the NEL Lecturer, of the time students spend at the reactor. The running time meter records reactor operation. The Decision erroneously defines " console hours" as the equivalent of hours recorded by the running time meter.
As explained below, " console hours" are not an accurate means of recording uses of the reactor.
Mr. Charles Ashbaugh, Lecturer for the School of Engineering and Applied Science, testified that he had prepared University's Exhibit 5 entitled " Class Use of the UCLA Reactor" solely for the purpose of
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answering an Intervenor interrogatory concerning class use of the reactor. Tr. 363. He testified repeatedly that the " console hours" of student use of the reactor listed in Exhibit 5 were his estimates and approximations of student time spent at the reactor console, and time of sample irtsdiation for classes, based on his recollection, but that no j
records are kept of this time. Tr. 308, 313, 344, 355, 363-364, 366, 385-387, 410-411. Thus, " console hours" are imprecise estimates based totally on the memory and experience of one NEL staff member developed only for litigation purposes and entirely inappropriate for use in any j
other way than that for which it was offered. Since Mr. Ashbaugh continually stated that there was no record of " console hours" (there being no requirement to keep such records) and that the-hours were only his best estimates based on his recol' lections, the use of " console hours" by the Alternate Board Member in lieu of the normal records at UCLA of reactor operation
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and academic programs which were' used by the expert witnesses is unreasonable, both for assessing reactor uses and as a recommended reporting requirement.
Furthennore, although the Alternate Board Member states that "no accurate or reliable data" exists with which to compare uses, the Alternate Board Member himself uses the University's Exhibits 2 and 6, which are records
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of port hours of research use of the reactor over the years 1972-1982 and the UCLA reactor-related courses, to compose his own chart of comparative uses. Decision, pp. 14-15, 25-26. Further, the Decision contains University's Exhibits 1, 2 (Port Hours of Use), and 6 (Class Hours of Students) as Appendices. Thus, the Decision shows that accurate data does exist to demonstrate reactor use (and purpose).
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The only explanation provided for rejection of the University's data and all expert opinion was the Alternative Board Member's view of reactor "use" only as operation (discussed more fully, infra). Yet the UCLA l
Exhibits listing classes and student enrollment are undisputed, as is the
- j financial statement showing reactor costs. The Alternate Board Member's rejection of the University's data and the opinions of the expert
- I witnesses based on that data is unfounded. The Alternate Board Member's DecisiondoesnotcomportwithSection556(d)oftheAdministrativeProcedure Act which requires agencies to base decisions on the whole record or those parts supported by and in accordance with the " reliable, probative, andsubstantialevidence."U Licensing Boards have an ironclad obligation to explain the reasons for rejecting expert witnesses. E and must provide reasonable detail for the course of action chosen.E The substitution of the Alternate Board Member's opinion for that of the expert witnesses on cost allocation methods should b'e rejected.
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5 U.S.C. I 556(d) (1946). Section 181 of the Atomic Energy Act of 1954, as amended, requires application of the APA to all agency i
actions under the Act. 42 U.S.C. 2231. See 10 CFR Part 2. App. A, Sec.(3)(2).
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ALAB-669,15NRC453,474(1982).
W Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),
ALAB-422, 6 NRC 33, 41, aff'd, CLI-78-1, 7 NRC 1 (1978).
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The Alternate Board Member's Finding that the Reactor Has No Use Except When Operating Is Error The Decision, at 24, after concluding that none of the expert i
witnesses presented the correct method of comparing academic and I
comercial uses of the reactor, explains that it is inappropriate to use the record evidence of 292 annual class hours of reactor-related i
instruction and the 3328 hours0.0385 days <br />0.924 hours <br />0.0055 weeks <br />0.00127 months <br /> of reactor-related student hours of
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education because these classes take place when the reactor is not operating. However, having referred to class hours and student hours, I
the Decision goes on to state that:
I know of no objective method for establishing the educational use of the reactor when it is not operational
-[and]
I do not find that the Commission contemplated such "non-use" when it promulgated 10 CFR i 50.22
[and]
This claim by UCLA that the reactor is used when it is not operating would render meaningless the 50% limitation in 10 CFR 5 50.22.
Decision, p. 24.
Contrary to the above cited statements, the Staff respectfully submits that it is the Alternate Board Member who has misinterpreted 10 CFR 5 50.22. As previously pointed out, the "50%" in 5 50.22 refers to
" costs of owning and operating the facility," not to time of actual operation. The regulation sets out the standard to apply in determining whether research reactor licensees are to be deemed commercial licensees.
The Alternate Board Member has not applied the standard set out in the regulation. This definition by the Alternate Board Member is incorrect and should be disregarded by the Board.
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During hearing, the Manager of the NEL explained that the purpose of the UCLA reactor is for use as an educational tool to support education and research, in the same way that all items of laboratory equipment are tools of instruction, for which costs are incurred regardless of the number of hours actually used by students and faculty. Tr. 12-13. Both the NEL manager and the Lecturer in nuclear engineering explained and demonstrated thct the fulfillment of the educational purpose of the reactor does not depend on the small (5%) number of actual reactor operating hours, nor is the educational purpose even indicated by the 5-8 port hours of weekly operation. Tr. 77, 119, 318, 328-330. The Decision recites the testimony which explains the academic purpose and value of the reactor when it is not actually operating as well as the educational purpose of the costs of maintaining the reactor. Decision, pp. 16-17.
Yet, the Alternate Board Member would allocate all costs to the 5% of the time the reactor is used in operation without accounting for the 95% of the time the reactor is used and/or maintained while not in operation. No a
consideration was given to the evidence that the use of the reactor by 1
the commercial user has had little effect on the NEL fixed costs which have been the same for many years and did not change when irradiation o
service was provided to the one commercial user. Tr. 50-51, 68-69, 71-72.
h The Alternate Board Member's finding that the UCLA reactor is used only when operating is contrary to the comon experience of students who j
use laboratory equipment in science courses and of educational institutions rt which own laboratory equipment to support science courses. The Alternata l
Board Member's opinion of research reactor use is simply wrong, j
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D.
The Recomendation to Require Reporting of Reactor Uses in " Console Hours" is Not Approoriate or Enforceable The Decision, at 33, recomends that the Licensing Board require UCLA, alone among 66 nonpower licensees, to report reactor use to the ti l,
Comistion in terms of " console hours," after first establishing a
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"unifom measurement of reactor useage in terms of console hours."
Decision,at27,33.E j
As explained above, " console hours' is a tem created by Mr. Ashbaugh hl todescribethe"alpproximationsandestimates"hemadeofstudenttimeat
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and around the reactor based on his memory and personal experiences as instructor for nuclear engineering classes. To require establishment of 6 new and unique method of reporting, would create confusion for both the University and the Comission and would not provide the Comission with infomation not apparent in the UCLA records of classes.
In addition.
this method of reporting is totally inappropriate for research users, who do not spend " console time" learning reactor design and operation. Thus, the method is not necessary to demonstrate educational putpose or use, and is not possible for research use.
The reactor operating log is and has been (for 20 years) the reliable source of infomation about reactor operation for reports to NRC. Tr. 24-26, 32, 38-39, 40, 773, 775.
It is the reactor operating
-12/ The Decision also recomends that educational use be recorded when concurrent with research use. This refers to the fact that student instruction sometimes occurs when samples are being irradiated, and student use is not recorded in the operating log. The Staff believes this recomendation would serve no useful purpose since the proof of educational activity rests on UCLA's academic courses and student enrollment.
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log, among other records, which NRC inspectors use to determine compliance with NRC regulations. Tr. 740. The only reporting require-ment for UCLA's reactor operating hours is the annual cumulative full power hours and three categories of use in port hours, for classes, maintenance, and research. Tr. 26-32. The proper and accurate records of the educational purpose and use of the reactor are the records of student enrollment and academl'c courses related to nuclear physics and engineering at UCLA. The research uses are accurately reflected in the I
operating log as port hours of sample irradiation. The Alternate Board i
M6mber's recomendation is not well founded and would result in needless expenditure of resources by UCLA in formulating and reporting " console hours" of questionable value. The recomendation for establishment of a new and less accurate reporting method by the Alternate Board Member should be rejected by the Licensing Board.
E.
The Recomendation for License Condition Is Not Based on Any Regulation The Decision, at 33, recomends that the Licensing Board impose a condition on the UCLA Class 104 license to limit " console hours" of commercial use to less than 50% of the annual use of the reactor. As previously explained,10 CFR 5 50.22 deems activities of 104 licensees to be comercial when 50% of the costs of owning and operating the reactor are devoted to comercial activities of the licensee. The costs of owning and operating the UCLA reactor are incurred for fixed costs of staffing and managing the reactor facility which are not " devoted to" any comercial production of materials or sales of services. UCLA has not engaged in comercial activity as described in 10 CFR 5 50.22. There is e
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no legal authority on which to base a license condition restricting incidental nonprofit sales of sample irradiation service to non-academic users nor could such service be recorded as " console hours." This i
recommendation for a license condition should be rejected.
i IV. CONCLUSION For the reasons stcted above, the Staff submits that the Licensing i
l Board should reject the opinions and recommendations of the Alternate Board Member discussed above and find on the basis of the probative and I
substantial evidence of record that the UCLA Class 104c license should be renewed without condition regarding irradiation service for outside users.
Respectfully submitted, i
Colleen P. Woodhead Counsel for NRC Staff l
Dated at Bethesda, Maryland this 6th day of September, 1983 l
l
PART 50 o STATEMENTS OF CONSIDERATION nical:y satisfactory. Accordingly, the rule 3sFR Sggy 3d Bees, at 28 (197013. Such facDiues set forth below specifies that either air Published 3/6/73 might include, for example, research re-or nitrogen may be used as the testing actors that are used to produce redle-medium in the conduct of the valve leak.
Reactor Containment Leshage Testing for isotopes for sale or that are used for age tests.
WaterCooled Power Reactors The rule set forth below esponds upon neutron radiography on a comme,gg,3 the requirement contained in the pro-g
- basis, posed rule for testing valves, sealed with In FR Doc. 73-3788 appearing at page The amendments to G S0.22 of part sater from a seal. water system, by in-4385 in the issue of Wednesday, hbru*
50 which fonow categorise as a facDity cluding minimum water test pressum ary it,1973, the following changes abould "for industrial or commerotal purposes" and test acceptance criteria.
be made:
The proposed rule required thel the a facility designed or used so that som i
vahes be subjected to a seal-wakt sys-than 60 percent of the annual cost of tem operability test to establish that owning and operating the faculty is de-i the valves could be settsfactorUy' pres-3a FR 114s5 voted to the production of matertels, surized with seal-water. Were was no PW US/73 products, er energy for sak er eom-requirement to measure the rate at which Ef fective 6/s/73 mercial distribution, or for the sale of
~
water lesked past the valve. It had been UcensIng of Facilities Used for leedustrial swvlus, ohr than research and de-j assumed that the seal-water inventory or Commercial Purposes velopment er educallan er training.
]
would be adequate to seal the valves Under this construcuen, a Ucense luned On October 15,1971. the Atomic Energy to a nonprofit educational insutution against outleakage of containment Commission pubMshed in the Frorant.
for a facIty for educauen or training atmosphere durint the design basis acci-
].
dent condition. However, the lack of a Racistra (36 FR 20051) proposed amend-purposes only would ccetinus to be specific water irmntory critericn against ments to 10 CFR part 50 of its regula-licensed under seetina 104c. of the Act, a
which actual valve leaksee rates would tions which would denne the circum-ainee the licensed operaUon would not
}
be measured, could result in an inade*. stances under wh!ch research and de-he devoted to production of socds or cuate supply of seal. water for valve velopment and training reactors win be servlees for sale or commeMial nes!!ng with attendant lose of the con
- considered to be used "substantially distribution.
]
for industris! or commercial g*urposea'.
It is.recognised that some adjust-j tainment isolation function. Accord-ingly, a provision hs been incorporated and thus 11ctnsable by the Commission ment may be needed in the license fees a
it to the rule set forth below which rea under sectica 103 of the Atomic Energy payable by holdere of ilcenr3s that pres-aukes that the valve leakage rate shall Act of 1D54, as ame41w1 (the Act), Inter-ently hl! within the "research neareer" not exceed the seal-weter inventory, on ested persons were arded to submit ea'. oory in 10 CFR Dart 170, Peas for the assumption that the seal-water sys-written comments and ausgestions for "acallties and Materials IJcenses Under tem wiu be pressurized for 30 days at cons!deration within 60 days after pub-the Atomic Energy Act of 1954, as a
110 percent of the calculated peak con-Mcation of the notice of proposed rule-amended. Such adjustraents and related
{
tainment internal pressure related to making in h -Freraar. Rrctsrsa. No changea in 10 CFR part 173 w!Il be one-the design basis accident. With the in.
comments were rece!ved. 'I'he Commis-sidered by the Commission as part sk.n has adcpted the amendmenta in the of its continuing consideration of the n i d ting o y a seal w lE I'
tul m g
l system operability test were eliminated.
Public IAw 91-560, enacted on Decem.
Pursuant to the Atomic Energy Act of Containment is provided for sater-i cooled power reactors to prevent un-ber 19,3970, amended the Act by, among 1954, as amended, and secuons 653 an4 controlled releases of radioactive ma-other things, eliminating the require-S53 of title 5 of the United States Code, terials to the environment if the ment that the Ccmmission make "a the fonowing amendments to tide 10, barriers provided by the fuel cladding Bnding in writing that any type of utDI-chapter 1. Code of FWderal Regulations, and reactor coolant pressure bounM sation or production facility has been part 50 are subject as a document stitdect should be breached. Testing the reactor su!Belently developed to be of practical to codification to be effective June 8, p,,,,.for industrial or commercial pur.
value 1973.
containment for leakage helps to assure before the Commission may issue 38 FR 190W that.
(a) Isakage of the primary reactor commerciallicenses under section 103 of Published 7/17/73 containment and associated systems is the Act for such facilities. Under section Etfactive 8/16/73 held within n!!owable leakage rate limita. 103 of the Act, as amended by Pubtle Fractu're' Toughness and Surveillenee ech spec canons I4w 91-560, ut!!!zation or production Program Requirementa (spec facilities must, with certain exceptions, On July 3,1971 the Atomic Energy 9g g.
Eb) Periodic survel!!ance is pe'rfomed be !! censed under section 103. App!!ca-Commission published in the Psosmas.
to assure proper maintenance and leak tions for licenses under section 103 are Rectstra (36 FR 12697) proposed amend.
repair during the life of the contain. subject to the preliminary antitrust re*
ments to its regulations in 10 CFR Part ment; and view provisions of section 105. to the 80 which would add new appendices en-mandatory hearing requirements of sec-titled. " Appendix 0, Fractum Toughness (c) De containment will continue to tion 109, and to the requirements for Requirements." and "Appendia H. Re-perform its function throughout the life review by the Advisory Committee on actor vessel Material surveillance Pro-j of the plant.
Reactor Safeguards in section 183.
gram Requirements" he amendment which follows pro-De legtslative history of Public Iaw Interested persons were invited to sub-vides uniform requirements for contain-91-560 indicates that the principal pur-mit written comments within 80 days.
i ment leaksge testing. It speelfles the pose of the legislation was to subject Upon consideration of the comments re-minimum requirements for periodic veri-new applications for production and ceived and c,ther factors involved, the ficaUon by tests of the leak-tight intes. ut!!!zation facilities formerly licensed Commission has adopted the proposed rity of the primary reactor containment-under section 104b. of the Act as re-amendments with certain modifications t.nd associated systems for water-cooled search and development facilities-in the form set forth below.
poser reactors, and the acceptance crt-power reactors and fuel reprocessing Significant d!!!crences in Appendix G teria forsuch tests.
plants-to !! censing under section 103.
from the amendments published fee Pursuant to the Atomic Energy Act of
'Ihe legislative history also shows that comment are:
1954, as amended, and sections 553 and the Congress was aware that some ap*
(1) Terminology was changed to be 653 of title 8 of the United States Code, plications for fac!!!tles to be-Ilcensed consistent with that of the ASME Code.'
the following amendment to 'ntle ICL under section 104c. as research reactors Chapter I, Code of FWderal Regulations, might also be considered "for industrial Part 80,is published as a document sub-or commercial purposes if such reactors i Amertean soesety of Mechantcal Engioeess
(
ject to codification to be effective on had such a purpose to a algnificant ex*
soner and Pressure vesset code, secuan III, a.
e
" Rules for the Construction or Nuclear Power tent [S. Rept. No. 91-1347, 91st Conf-, Plant Componenta " 1971 Edition, saa March 14.1973, m
addends throush the Winter 1972 Addenda, e American society for Testing and Mate-rinna.
50 SC.17 September 1,1982 e*fy y= ee= eju=,pe -=.n S.'
9'9
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tWISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
I In the Matter of Docket No. 50-142 THE REGENTS OF TH7 UNIVERSITY OF j
CALIFORNIA (Froposed Renewal of Facility f
l
)
License) j (UCLAResearchReactor)
)
CERTIFICATEOFSERVgt I hereby certify that copies of "KRC STAFF 03JECTI0iiS TO REC 0f44 ENDED DECISION 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 ir. the Nuclear Regulatory Comission's internal mail syttem, or, as indicated by dNble asterisks, by express mail, this 5th day of September 1983:
- John H. Frye, III, Chairman William H. Cennier, Esq.
Administrative Judge Office of Administrative Vice Atomic Safety and Licensing Board Chancellor U.S. Nuclaar Regulatory Comission 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 Comission Glenn R. Woods, Esq.
Washington, DC 20555 Office of General Counsel l
2200 University Avenue l
^Glenn O. Bright 590 University Hall Administrative Judge Berkeley, CA 94720 l
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Roger Holt, Esq.
l Washington, DC 20555 Office of City Attorney 200 North Main Street l
Comittee 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 l
li ll v.
2 Lw -.
w
= _ --.
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 j
City Attorney Board Panel Lynn Na11 boff U.S. Nuclear Regulatory Commission
~
Deputy City Attorney Washington, DC 20555 1685 Main Street, Room 310 i
Santa Monica, CA 90401
- Docketing & Service Sect ton
- Carole F. Kagan, Esq.
Office of the Secretary Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comnission U.S. Nuclear Regulatory Commission Washington,DC 20555 Washington, DC 20555 i
f
!M.
Colleen P. Woodhead Counsel for NRC Staff 4
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