ML20024F268

Exceptions to Alternate ASLB Member Ja Laurenson Recommended Decision Re Contention Ii.Reactor Primary Use Is No Longer Research & Educ.Licensee Cannot Be Entrusted W/Class 104 License.W/Declaration of Svc

ML20024F268
Person / Time
Site:	05000142
Issue date:	09/06/1983
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8309090156
Download: ML20024F268 (27)

Text

Q

. ~* ,

00CKETED USNRC COMMITEE TO BRIDGE THE GAP 9/6/83 1637 Butler Avenue, Suite 203 Los Angeles, California 90025 . 3 SEP -8 All :i2 (213)478-0829 UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION BEFGE TE ATOMIC SAFETY AND LICENSING ECARD In the Patter of Docket No. 50-142 OL THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (ProposedRenewalof Facility License)

(UCLAResearchReactor)

CBG'S EXCEPIIONS TO THE ALTERNATE BOARD FEMBER'S REC 0KEENDED DECISION AS TO CONTENTION II I. Introduction On July 12, 1983, Alternate Board Kember Jamec A. Iaurenson issued a Recommended Decision regarding Contention II.

That Contention asserts,. inter alia, that the original uses for which.the UCLA reactor had received a Class 1C4 license, conduct of research and education, had radically shifted in recent years so that conduct of research had become non-existent and education but a few hours per year, with the I- primary usage being sale of services, other than research and education.

g o wo.

Judge laurenson's Recommended Decision would find that UCLA had

$@ failed to keep accurate records demonstrating compliance with 10 CFR 50.21 ClO 03 @ and 50.22 and that even with alterations proposed by Judge laurenson (though 5 not su6gested by any of the parties), UCLA was in violation for at least one oc ok year. Nonetheless, Judge laurenson asserts that CBG has not met its burden ocr g to demonstrate that UCLA should apply for a Class 103 license and that the Board should condition grant of a class 104 license, if any.

-100

r 3

upon a limitation of commercial use and adequate record-keeping in the future.

CBG takes exception to a number of portions of Judge laurenson's Recommended Decision. These exceptions focus on the use of one accounting unit, " console hours" for measuring class use of the reactor, while failing to apply the same consistent unit for measuring commercial uses confusion of

." console hours" with hours measured by the recently installed R'unning Time Meter; quadrupling the recorded educational hours by a method not proposed by any party and contradicted by the evidence; disregarding without even reference testimony and exhibits which demonstrate that the ort;inal uses of the reactor (education and research) have become almost non-existent; and defining research and educational uses of the reactor as any use not sale of service to a commercial, thus including a number of inappropriate hours (e.g., all maintenance) as 4

research or education.

In addition, CBG takes exception to the shif ting of the burden of proof from the Applicant. Judge laurenson concludes (p. 22) that there are "no accurate or reliable data upon which to base an answer" to the Board's question concerning the extent of use of the reactor for comercial, education and research purposes. On that basis alone, UCIA's requestifor a Class 104 license should be denied, as it has not met its burden to demonstrate t

that it is entitled to such a license. Judge laurenson goes on to conclude that the port-hour usage charts prepared by UCIA snd submitted to NRC in its annual repo'rts and interrogatory answers are the "only factual and objective data" available, and that these data indicate that in recent years more than 50% of the use was for commercial purposes. (22-23). Yet, Judge laurenson rejects Applicant's own data, the"only factual and objective data available,"

as incorrect. If correct, Applicant is not entitled to a Class 104 license; if incorrect, Applicant has not met its burden, and thus .is not entitled to the 104 license.

i t

.,y.., . __,,--.i,.~ ,.._,____._.,._.,,,,,..y- , , . -y~,..... _,-_.,y -,.,_._,r._...,.--.,.,,,v,.-.,_._,,r_.,-,_-_,m,

By his own calculation, Jtsige laurenson determines UCLA has been in violation at least one year. Even so, he recommends grant of the 104 license with two conditions. The two conditions merely reqQire UCIA to do what the regulations already require, comply with the substantial use test for commercial 'use and keep adequate records, requirements Judge Laurenson has determined they have not complied with. CBG takes exception to such a conclusion.

These exceptions, and related exceptions, are detailed below.

II. Legal Standard It has long been establiched that the burden of proof in an h3C proceeding on a request for issuance of a license rests with the Applicant in the case. 10 CFR 2.732. For a license to!be issued, there must be reasonable assurance that the regulations will be complied with if the license is granted.

10 CFR 50.40.

A separate contention addresses the long history of regulatory non-compliance by this Applicant generally: the ratter has yet to go to hearing.

However, the best evidence whether UCIA is entitled to a Class 104 license and can be expected to comply with the related regulations is whether it has scrupulously complied in the past. Judge laurenson, and the evidence of record, indicate that Applicant has failed to co7 ply in the past; there can te no finding of reasonable assurance, thus', that it will comply in the future, absent some exceptional showing not made by Applicant in the reconi to date.

III. Procedural History UCIA received the license for its Argonaut reactor in 1960 for research and educational uses. In 1970 UCLA began reporting to the then-AEC annually reactor usage. Throughout the next decade these annual reports, and all other records of reactor usage, were in port-hours (a measure of use that takes into consideration concurrent use's) and in three categories:

research, classroom instruction, and maintenance. No report was rade of commercial use, which was lumped, without so indicating, in "research" uses.

CIG intervened in the relicensing proceeding, with one of its contentions an assertion that most of what UCLA called "research" was actually sale of commercial services. UCIA, in a series of interrogatory answers, denied there was g use of the reactor besides education, and denied the existence of any records indicating any commercial activity. Three Icard Orders compelling truthful answers followed, including a threat of sanctions for Applicant and censure for its counsel when it was discovered that such data existed, in part in the form of a tabulation of commercial hours which t

showed for the most recent year tabulated 60% of the hours were indeed commercial l

in UCLA's own terms. This is now Applicant's Exhibit 1; it is important to recall that Applicant had previously denied the existence of this Exhibit or the facts contaired therein.

Thereafter, UCLA began to include commercial usage in the use charts, though tried to hide its trae nature by calling it " extramural" or "non-academic" i

use, although it stipulated that such uses were actually commercial.

The report for the year following the last one on now-Exhibit 1,showed commercial activity growing even further, to'360 hours0.00417 days <br />0.1 hours <br />5.952381e-4 weeks <br />1.3698e-4 months <br />, with instruction again an order of magnitude lowe,r.

I h

w y , s

( ( t "N

~ t jg

-5 UCIA and the NRC Staff moved for su=rary disposition of Contention II(andessentiallyallothercontentions). Therein they argued that although actual use for commercial functions may exceed 50% in reednt years, only 2%

of the costs of owning and operating the reactor should te allocated to commercial use, the remaining 98% to instruction, which represented only 10% of actual use. They so argued on the tasis that costs should be allocated on stated intent or purpose rather than the reality of actual operation.

CBG responded that that violated tasic principles of accounting, which d emand dollar accountability--that costs be allocated according to how they are actually used. C2G further pointed out that to accept such an interpretation of 10 CFR 50.22 would nullii*y it and the Atomic Energy Act provisions, because UCLA would have to run the reactor P.4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> a day conmercially for more than 365 days per year in order to compensate, were such an interpretation accepted, for 30-40 hours of instructional use.

The Board rejected the Staff and Applicant arguments, asserting that it leads to an absurdity and that costs must be allocated on the tasis of use, according to the regulation. It established an alternate proceding to hear evidence on whether more than 50% of the use had been for non-research and non-educational purposes.

The procedural history, thus, has teen one of cover-up by the Applicant of a tasic fact: that instructional uses of the reactor were negligible, l

research had become non-existent, and that the' vast majority of what the Applicant 1 .

was reporting to the NRC was sale of ore-assaying services to a commercial firm, Uranium West. The facility is essentially useless for its licensed purposes any more, and is used almost exclusively for purposes not permitted by the l law and regulation for this class of license.

1 l

.6-IV. THE EVIDENTIARY IiEARING UCIA's attempt to cover-up its own data continued at hearing, as detailed below. Its own records indicate hundreds of hours of use for commercial use and only a few tens of hours for instruction. Applicant's response was characteristic s to attack the accuracy and veracity of its own official reports to the NRC, interrogatories under oath, and operating and use records!

AM to attempt to multiply thirty-to fifty instructional hours per year by a fudge factor of roughly one hundred. If a class on chemistry meets for forty hours in a year, and for part of one hour comes to the Nuclear Energy Iab for ainur, Applicant dismissed its own records of one hour of instructional use ard tried to call it forty hours of " reactor dependent" instruction, even if none of the rest of the class related to the reactor and the class could continue to be offered were the one-hour tour not part of the class.

And in addition Applicant attempts to multiply even further, by multiplying those forty hours by the number of students in the class. Judge Iaurenson r16 htly rejected these attempts to essentially add a multiplier of 100 to actual class use. Further discussion of the ratter will occur in the C3G response to the Staff motion for reconsideration on Contention II.

In what follows, CBG sumrarizes the evidentiary records where it takes exception to Judge Iaurenson's description of said record, it is so indicated.

9 9

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

-7 The Exhibits CBG put forward twenty exhibits admitted into evidence.

Thue were all admissions against interest by the Applicant, who bears the burden of proof, as they were official business records of the Applicant or its witnesse:

They demonstrate conclusively that essentially no research is performed anymore at the Nuclear Energy Iab, instruction is minimal, and commercial use predominant. Some of the key ones are summarized as follows:

Exhibit C-2: portion of Applications shows FEL has a neutron generator for activation analysis, doesn't even need reactor for that it-describes as reactor's primary use C-3 Commerical brochure by Dr. Kalil's Uranium West Iabs advertising the commer61al service he provides out of the shop he has set up at UCIA's Nuclear Energy Iab, indicating that he has even published the NEL phone as where to reach him for business.

C-7 ' Experimental Safety Analysis for UCLA witness Charles Ashbaugh for "experinent" classed as "ELtrecearch" which was actually gem coloration C-10 Experimental Safety Analysis for another so-called NEL "resesrch", which was actually a raintenance attempt to reduce Argon-41 concentrations in effluent C-15 Interim Report from Nuclear Enerp/ laboratory Advisory Committee,1975, indicating (p. 4) that the reactor can no longer, without being upgraded, be used for research, and that the possibility of it being useful for research in the future is " highly impossible." Also indicating very minimal educational use.

C-18 UCLA Annual Reports, indicating UCIA has always reported instructional use in poit hours, that such use was in recent years only a few tens of hours, and that what they call research "is a broad category doninated by service irradiations in which the reactor is used as a tool without reference to reactor theory or operational properties (see second to last page).

- C-20 1976 Annual Report (internal): " Technological changes influence reactor demand, and adaptability to change through finding new markets for reactor services continues to influence reactor productivity. 'Ihe reactor is no l

A nger new, and reactor physics research projects with 2

the UCLA reactor have become non-existent. The advent

. of the Medical Cyclotron on the UCLA campus has displaced the reactor in the field of medical radioisotope production."

(emphasis added.) p. 2 (See also p. 35, discussing

efforts to " attract more outside business and to eliminateourreactorusers' shopping,elsewhere.")

I C-21 financial ledgers documenting the extencive billing of outside users for irradiation services C C-28 Reactor Use Ings, demonstrating that Applicant's Exhibits 5 and 6, based on guesses by Applicant's staffs without checking the actual use logs, inflate actual reactor use for instructional purposes by a factor of 2-3 when compared with the actual use records.

C-30 inspection report indicating in early 1960's use factor was 87%, indicating tremendous reduction in reactor use (and usefulness) since originally licensed.

EXCEFFION A: Judge laurenson, in reaching his recommendation, failed to consider any CBG exhibit except C-18, even though nineteen other exhibits were admitted into the proceeding and provide reliable and probative evidence of a draratic shift in use of the reactor from research and instruction to sale of'iiradiation services.

CBG recognizes that a judge, after considering all the evidence, -

may make determinations as to 4 weight that should be attached to particular iteins of evidence. But the evidence must first be considered, and Judge laurenson's recommended decision indicates a failure to consider any admitted documentation (all from Applicant's records) of the CBG Exhibits except # 18.

In addition to considering Applicant's exhibits, Judge laurenson actually included three of Applicant's Exhibits in his Recommeded Decision.

Exhibit 2 had been shown to be unreliable, in that Applicant had included under 1981 "NEL Staff Users" 82 hours9.490741e-4 days <br />0.0228 hours <br />1.35582e-4 weeks <br />3.1201e-5 months <br /> of raintenanca involving radiation effluent control. (So-called "non-academic users" in that chart were comeercial firn.s, primarily Uranium West. ) (See Hirsch/Aftergood written testimony, p. h ff. TR 485, e

hereinafterH/Awrittentestimony).

Kore importantly. Exhibit 6 was shown to be totally unreliable.

Exhibits C-26 to C-28 showed the instructional hours vastly inflated when

- checked against the use records, and the testimony of Applicant's witness

! Ashbaugh who sponsored the Exhibit showed the data to be pure guesswork. TR 30338 Ashtaugh testified that no enrollment records were checked, no reactor use i

records checked, and that if a class used the reactor for one hour per year, the entire hours the class met were put down as reactor dependent instruction.

TR 381-4, 353-5 Ashtaugh testified that the entire table was tased on ne records'or data, but " estimated from my experience," a " personal estirate" without even checking against available records. TR 363. Furtheracre, Judge laurenson refused to permit cross-examination or introduction of evidence which would show that Mr. Ashbaugh was found by 1EL itself to be the most unreliable NEL staffperson with regards operating records. TR 766-7 i

EXCEPTION B: Judge laurenson erred in relying upon Applicant's Exhibits 2 and 6, where evidence of record showed them to be unreliable. He erred in not permitting inquiry or admission of evidence that would further demonstrate their unreliability. Exhibit 6 is purely unreliable guesses and estimates

! Jufge laurenson's own report concludes that the only " factual and objective data upon which to base an answer" to the central question of the proceeding are the port-hour data taken from the actual ta e records, yet he instead i

l relies upon non-factual an d non-objective guesses of an unreliable witness, I

whose estinates were found to be considerably inflated when checked with the actual use records.

l The Testimony l

None of the Applicant or Staff's witnesses had actually reviewed the financial records or the use records for the reactor. Only C3G's witnesses Hirsch and Aftergood had done so, They were the only witnesses who could testify about what the actual records actually indicated about reactor use over the years.

Additionally, the CBG compilation of reactor usage data appearing on page 4 of

! their testimony, the only reliable data tased on actual records, was ignored in the consideration. It is attached here as Attachment A, and shows conclusively

that sale of services averaged 83.2% of reactor use in the last few years; if sale of ssrvices only to commercial firms, as opposed to s ale of services to non-profit institutions is considered, Uranium West purchases of irradiation services constitutes 54.2% of reactor usage 1978-1981 By contrast, the supposed " sole" purpose of the reactor, education, represents only 115 of actual use. H/Awrittentestimony,p.4,6. .

Yet, despite the fact that the only review of the actual records was performed by these CBG witnesses, who introduced a score of exhibits taken from these documents of the Applicant, both the exhibits and the testimony were not considered by Judge laurenson in his report. While a judge need not agree wih all testimony or evidence--nor indeed can he--he must consider all evidence of record in reaching his decision.

EXCEFFION C: Jtdge Iaurenson erred in failing to consider the testimony of two cf CBG's three witnesses, and in failing to consider the CBG compilation of reactor use data, in reaching his recommended decision.

I

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

EXCEPTIONS TO REC 0!OENDED FINDINGS CF FACT AND CONCLUSIONS OF LAW

'Ihese exceptions are numbered to follow the numbered findings and conclusions in the recommended decision.

1. It should be clarified that the license condition is 438 full power operating hours; actual operating hours can and always is greater.

5; Judge Iaurenson errs in confusing " running time" with " console hours."

In February,1983, according to Applicant's witnesses, UCIA installed a Running Time Meter, which recortis tine automatically from when the control blades are engaged. This is different than " console hours", which include time when students are in the reactor control room observing -

activities prior to either at-power time or the beginning of the running time meter. TR 394,157-8 None of the records presented at hearing are based on the running time meter. TR 157-8.

6. This finding would more accurately represent the situation were it to reads UCIA reports reactor usage in educational, research, and other categories annually to the NRC in port-hours. That term is an accurate way of determining reactor usage for Contention II and is the method UCIA has always used in its annual reports. Exhibit c-18, TR 571-2,583, 653,662-3,707709, 703-4 8 This finding should have the additional sentence added: Charging $65/ hour for an activity which costs $13 per hour would mean a profit-making activity were occurring. TR89,91,587-8, 718 10 This finding should have the additional sentence added: This would constitute a taxpayer subsidy for commercial users of the reactor, as operating

costs would be hundreds of dollars per hour, with commercial users charged

only$65/ hour. Peterson testimony for Staff, ff 448, p. 3; Baefsky testinony, supplemental, p. 2.

11 This finding should have the sentence added: The time spent 17 reactor operators or reactor operator trainees in getting the reactor to full power or shutting it down after the rods are dropped are not included in port-hour records for either educational orcommercial uses of the reactor, both of which require such actions. TR 369.

12 This finiing 6rrs in inchding Applicant's Exhibit 2, which includes maintenance and non-research time under "NEL Staff Experiments". TR 115-6.

Mr. Ostrander admitted much of the Argon reduction time should not be considered "research," and that anything that meets . the fancy or interest t

of a staff person, such as gem coloring, is included under hEL staff users research, whereas none of it is truly research. TR 117, 118, 115-6.

13. This finding errs in relying on Exhibit 6, described above as unreliable, insed purely on estinates, and determined by Judge Iaurenson himself (p. 22) to not be part of the " factual and objective" data available. In addition, the use logs show the figures to be inflated in the reactor acad'emic hours section, and the Applicant witness sponsoring the Exhibit said it would be inappropriate to compare data from Exhibit 6 with data from Exnibits 1 or 2, being " apples and oranges." CBC's accountant confirmed this, claiming that the exhibit was a " potpourri," with everything thrown in the pot. TR 656-7, 347-9,369-373, 377-379, Exhibit C-26-28, TR488-493. This finding also erra in converting 139A from 1 to 12: the use logs indicate only 4-5 to 7.6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> per year.

I id.

l ..

! 14 This finding errs in failing to nake clear that these classes only I

use the reactor for one or two class sessions per year, the rest of the class being essentially unrelated. For example, Engineering 135 EL used the reactor 1.7 total hotrs in 1981-2 Engr. X 497.17 used it 1.7  ;

l hours the same year Chemistry 184A used it only 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />; Physics 180A used it only .24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />; and so on. The only class that uses the reactor l

more than a few hours per year, Engineering 135F, only has three students l in it. Exhibit C-26 to 28, TR 488-493: Applicant's Exhibit 5, p. 1,2,4s TR 288-307, 346, 349. The bulk of the students are enrolled in 139A (75 students), who each use the reactor less than one hour for a total of 4.5-7.6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> per year. id. Essentially.the reactor is used for small l demonstrations of an hour or so for classes otherwise unrelated to the reactor, and for Engr. 139A. reactor operating training. for three students annually.

i l

l l

l

15. This finding errs in that Applicant's witness Ostrander, admitted that actual use, as opposed to stated purpose, was just the reverses conmercial ,

use being highest, and instruction the lowest. TR 98.

17. This finding errs in not making clear that this use is not research by NEL but a lab service UCIA sells. As UCIA witness Ostrander testified, NEL no longer does research, now it " sells neutrons." TR 121, 19, 135, 114 I

20 This finding errs because all the evidence of record suggests that raintenance is not a tise of the reactor at all and should not be in either academic or comnercial categories of use, or if it is, it must be pro-rated according to the use in that category. This error is fundamental, because it violates the Board's previous order that the costs of owning and operating the reactor must be allocated on the basis of use. The Recommended Decision, without providing any insis at all, and while admitting maintenance is necessary for both academic and commercial use, allocates it purely as academic. This is error, and skews the decisions on which all the independent calculations by the Alternate Board Member aro based. TR 649-50,654: 574:

Baefsky , F 5: TR 157.

21 This is in eirar. FEL Staffpeople testified that any use of the l reactor to which a staffperson which to put it is classified as research, even though none of it is " scholarly research," and some includes such commercial matters are gem coloration with gems provided /b jewelers.

TR 114, 118, 117, 115-116. None of the hours in this category are research.

22. This finding should have added that Dr. Kalil is in private business, running an ore assaying company called Uranium West. Exhibit C-3.

23. This is a fundamental error. All hours for which acad.emic credit is received for the reactor operating training class, Engr. 135 F, are already included in the port hour tabulations. That is 34 port hours, for example, in 1980-81. TR 489. Of the three attdents, some will take the licensing exam (several weeks after class completion:). Approximately half of the reactor time is outside of the formal class hours, so only a fraction of the time the 3 students spend watching pre-start checkoffs or operations would not already

be counted. Ex 5, p.3. Of the time spent at the console, FM. Ashbaugh testified that only 40-80% would be at power. TR 343. A senior Reactor Operator trainee "can get by with zero hours en the console because there's no operational part for a Senior Operator exam." M. ft. Ashbaugh did not testify that the hours at power for reactor training would not be recorded in port hour listings, but merely that the time spent watching the operator at the console prior to going to power would not be included.

TR 344 As he said, "if the reactor's used, then the hours at power or whatever are rarked down." M. The figure 100 hours0.00116 days <br />0.0278 hours <br />1.653439e-4 weeks <br />3.805e-5 months <br /> comes from Exhibit 6, lased on a guess by FM. Ashbaugh that he thinks in order to pass the exam one would probably need 20-60 hours, 40 of which would occur in class ard the remaining of are already recorded, many of/which involve time when the reactor is not on or when several student,s are at the console at the same time. Exhibit 5,6, TR 342-3. Bere are only three student reactor operators. TR 349. Fbst of i

their console operating time is included in the charts already under 135F.

The re'maining time they do not get academic credit for, may well be getting i

paid as a student operator for Uranium West. Any time out of class involving actual reactor operation is minimal, as witness Ashbaugh indicated that they would come to NEL, hang around and watch a s+ art-up (console tine meaning not that the student is at the controls but is nearby) and then leave when the reactor became operational "because there's not much educational value '

i .

in watching a reactor at full power." TR 324 There ire no data whatsoever as to how much time, outside_ Eng.135F, the three stulents may " hang around" 4

NEL.- Se 128 estinate was not even included in the total by Applicant.

Port hours already thus include reactor operator training, all such hours for which credit is received are already included, and any educational benefit that the three or so students may get after class from hanging around NEL i

and watching an operator do part of a run for Uranium West, or being paid as an enployee of Uranium West as a student operator, is not even considered

by the University instruction. And there are no reliable data whatsoever, even if having a couple of students come outside of class to watch Ashbaugh do a run for Uranium West is properly considered educational, as to how many hours there have been. Iastly, the 128 guess includes roughly 60 or so hours when the reactor is not operating, and should not be considered because Jtrige laurenson has determined "down time" should not be counted; if pre-start check-off is counted for Engr.135F, it must be for Uranium West, because it was rade clear at hearing both depended upon such "non-run time" for their use.

26. The full wei6ht of the evidence is tnat more than 50% of reactor funding was devoted to commercial activity.

27. This is the central error in the Recommended Decision. It was determined clearly that the units used to corpre education, research, and sale of services must be comparabic and measurable. Yet, the Recommended Decision would have us compare unreasurable " console hours" (hours when a student was near the console watching somecne either operate or prepare to operate the reactor) with port hours (which are tied to measured hours of operation.) Console hours are mistaken for hours measured by the Runnirg Time Meter, which as mentioned in the Decisionwas not installed until February 1983 Thus all the nunters for " console time" are" by necessity non-measured, unrellible guesses by self-interested parties, And by

. definition " console time" is larger than operating time used in port hours Ashbaugh estimated actual run time is 40-80% of " console time." Yet a pre-start check-off nust be done, whether the run is for a class or Uranium West; a reactivity check must te done, no matter whether the user is commercial or educational; the reactor must be brought to power for all categories.

So the recommended decision, after rejecting the idea of a multiplier forthe educational uses, ends up using one after all, comparing educational

uses in units larger than those used for the research or commercial uses, and in non-measurable units, ones for which no reliable data exist.

Furthermore, this finding errs by calling "research" all non-class use of the reactor. First of all, at least 100 of the hours added into the class hours are not class hours at all, but non-credit time. This is due to the misunderstar ing that Engr.135F, all the for-credit reactor time, is already counted in port-hour charts. But to define all other uses (e.g. maintenance, sale of irradiation services to other institutions, FEL users fooling arourd with coloring diamontis) as research flies in the face of the definitions in the Atomic Energy Act. All of these errors skew the totalling of actual uses of the facility by essentially putting a fudge factor of four onto the measured classroom use ani adding everything but the kitchen sink into the research category. The sponsor of the console hour concept and estimates, UCIA's Ashkugh, explicitly testified that one could not use those estimates to compare other uses of the reactor such as research or commercial measured in port hours. He over and over again said it would be comparing apples ard cranges. TR 369-373, 377-379. Yet the recommended decision attempts precisely that, comparing educational uses in apples and commercial uses in oranges, when the only " factual and objective" data available, by the Recommended Decision's own conclusion, are the port-hour data which conclusively show primarily comnercial use for the last few years. And the use of Mr. Ashtaugh's console time guesses, which explicitly includes reactor "down time" fli es in the face of the Decision's determination that non-operating time cannot be used in conparing the various uses. If a multiplier h sed on pre-start checkoffs and the like are to be included for class use, they must for commercial as well, for all users of the reactor require those pre-start functions.

Ashbaugh, TR 369.

28. Because the previous finding errs, so too do the Alternate Kenber's calculations in this finding. It is to be noted that the method and resulting data employed by the Alternate Member were proposed by no party and thus subject to no scrutiny at the evidentiary hearing. Based on the actual, measurable, comparable, reliable data, the true results are:as indicated in the attached table from the H/A testimony: 1979,264/445or595;1980, 360/556, or 65%,1981, 211/411, or 525; for an average 1978-1981 of 545.

This only includes in the sale of service category sale of irradiation services to Uranium West.

The finding also errs because it does not recognize that whether the customer is a for-profit enterprise ora not-for-profit enterprise is irrelvant to a determination as to whether a sale of sarvice has occurred.

EL does no research and does not sell education to any but the students already incitded in the educational cate6ory. It is in the business of

" selling neutrons", as EL Panager testified. TR 121 The service is exactly the same whether it sells those neutrons (for activation analysis) to Uranium West or to Cal Tech; UCLA is providing a simple, commercially-available lab service for a fee. The billing rate and procedure is precisely the same, the service is precisely the same. As accountant Eaefsky rade clear in his testimony, the fact that a tacosalesman sells to a university does not rake the tacosalesran a university. TR 725. It is the nature of the service provided and whether it is sold. UCLA does no research anymore with the reactor; it sells a lab service. Thus, those other users beside Uranium West should be incitded in the sale of service category. Iaefsky said other UCLA users were a grey area, but that all other users who turchase from UCLA the same service that Uranium Vest purchases should be so included.

That rakes the total for 1978-81 83% of the use sale of services, other than education or research. id.

Whether one includes just Uranium West or other users in the sale

of service category, Applicant has been in violation of the 505 standa_i w for the last few years.

29. Commercial use of the reactor exceeded 505 for at least three of the most recent years. The fact that in previous perieds the reactor was used properly is precisely CBG's point, that the research tnd educational uses in recent years have dried up so that there are only three rector operator trainees using it for any educational purpose, plus an occasional visit -

by classes who use the reactor as only a very small portion of the course, with no research whatsoever being conducted there. The reactor is essentially now just a commercial lab service for analysis of samples, primarily for people outside the University of California and largely for one commercial ore assaying company.

Even if UCIA had been in violation for only one of the recent years, there is no provision in the Atomic Energy Act or the regulations that permits an Agency charged with enforcing the law and applying it to applications to essentially rule that full compliance is not necessary. The law does not say you can violate radiation stanlards 10 years out of 20 so long as the average over two decades is slightly below the limit. The law says you shall

• not violate the law, and says that a license cannot be granted unless there is reasonable, affirmative assurance tlat the regulations will be obeyed.

The 1 ternate Board Member has determined that the Applicant has violated this particular regulation in the past. He r.akes no determination, ani the Applicant no showing, that there is reasonable assurance the regulations will be complied with in the future. In fact, the best possible evidence to the.centrary is concluded by the Alternate Member: violations by this Applicant of this particular regulation. There is no provision of the regulation that says you can vichte the regulation on occasion.

i

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

_20 No citation of case law or other provision of law is given to support the contention that one must violate the provisions of 10 CFR 50.22 for x number of years before you become ineligible tohave your license renewed.

30. This is most unclear. Does the Alternate Member propose that all uses of tSe rector--as he appears to suggest--be recorded and reported in terms of the running time meter? Or does he intend to include all of the pre-start check-off, only half of which is included in the running time meter? Or include time students spend hanging around the console, which is how UCIA used the term originally, whether the reactor was on or not?

And more importantly, it appears that the Recommended Decision is recommending that future determinations of compliance be made on the basis of a consistent unit for all uses, a principle violated by the previous findings which attempt to assert only one year of violation (and thus no need for a Class 103 license) on the basis of an unrecorded, unmeasured estimate of educational use in console hours compared to recorded, measured records of other uses in port hours.

l 31 Console hours of training needs to be defined. Does it intend to mean l all hours of training, whether the reactor is on or not, including learning l the plumbing, and lectures and rapping with Er. Ashbaugh after class. This l

would appear to violate finding 16 which determines tha't ' reactor use does not include time when the reactor is not operating, f 32 There is no definition of commercial use here, nor does that term find itself in the regulations. The question is sale of services, other than

! research and education or training, a question not addressed in the Decision.

O i

k

Console hours is not defined also. Does it mean time as measured by the Running Time Peter, which would be acceptable? And it is unclear how two concurrent users would be counted, as is clear now f=m the port-hour method used by LUIA for the last decade.

F. ore importantly, however, the Recommended Decision appears to be saying:

(1) UCIA'has failed to keep adequate records to demonstrate compliance with the regulations, (2) UCIA has violated those regulations, (3) UCIA should have a license condition, if given a license renewal, to obey the regulations and record-keeping requirements it has violated.

The irony of this is that when CEG contended that removal of the AIARA requirement from the Tech Specs for this reactor was an unwise move, UCIA opposed that contention saying. that the regulations require compliance with AIARA so there is no need for such a requirement in the Tech Specs.

Now, when it is clear that non-compliance has been established and that no reasonable assurances of any sort have been given that compliance with the regulation will be assured, it is proposed that a license condition be put in that says, in essence, UCIA will obey this regulation in the future.

LVIA was required to otey the regulation in the past. License conditions are supposed to be specific additional conditions where no regulation exists b$t where the overriding duties of the Commission require some specific behavior unspecified in the regulations to be specified for a particular reactor. UCLA was always required to obey this regulation, and hasn't; it hardly seems to provide reasonable assurance as required to simply put the' regulation hto the license as a condition, particularly since no sanction whatsoever is proposed if UCIA once again violates the regulation.

the Reconmended Crder

1. This suggestion seems to completely abdicate the responsibility of a finding after an evidentiary hearing and passes on the authority to UCIA to defino

and establish a uniform measurement of reactor use. This gives to UCIA, already found by this Board three times to have not been truthful in the past regarding commercial activity, the authority to once again redefine away its non-compliance. Remember that this is the sare Applicant which reported for a decade all commercial activity as "research," denied under oath any commercial activity was taken place (disproven by this Recommended Decision if nothing else), tried then to call it " extramural"or "non-acadenic", then tried to claim 98% of the costs were devoted to 10% of the use, then tried to come up with new units (reactor-dependent instruction and student-reactor-related use, which multiplied actual use by a factor of 100). To tell the Applicant, found guilty of violating accurate record-keeping, truthfulness in reporting, and the regulation 50.22 itself, to come up with its own new system for determining conpliance is passing onto the violator the duties of the regulator.

2. This does not rake clear whether reactor down time can be counted.

Console hours, as used by UCLA in opposition to the Running Time Eeter concept apparently confused with it, includes substantial down time.

Down time cannot be included in this measurement, or if it is, it must be uniformly included for commercial users too. This leaves a wide-open i

• fuzziness for continued noncompliance by UCLA.

3. This, as indicated before, amounts to a determination by the Scarti that the Applicant is a violator, has pfovided no affirrative assurances that it has had a true change of attitude with regards respecting the regulations this agency is charged with enforcing, and telling UCIA they get everything they want with a so-called ecndition that they obey the regulation they were supposed to be obeying all along. The affirrative showing of reasonable assurance of compliance required by 10 CFR 50.40 has not been even attempted,

all evidence of record indicates the contrary in terms of likelihood of continued disrespect for the agency's regulations, ard there is not even a sanction identified if the Applicant, should it obtain the requested license, continues to act with the same disrespect for law and re6ulation as it has in the past, acting as though possessing a license to operate a nuclear reactor wera a 6ame to see how far and how of ten over the re6ulatory limits one can step with impunity.

CONCLUSION The Applicant is not entitled to a Class 104 license.

1 By its own admission, it has long ceased having a research use for the reactor, it being so outmoded, and educational uses consist of three half-courses with 5-8 students and four additional classes, which only use the reactor an hour or so a year. The only class which uses it much,135F, currently has only three students, and even with includin6 all the hours of reactor operattn for which the University grants academic credit, the grand total of instructional hours utilizin6 the reactor is 30-50, or 10% of total use.

More than 50% of use is for sale of services to an ore assaying company called Uranium West.

The Recommended Decision makes clear the Applicant has fai led in its duty to maintain adequate records and to corgly with the re6ulation in question.

Judge Iaurenson states under the " Conclusions" section of his report:

The primary problem in answering the Board's question concerning the extent of use of the reactor for commercial, educational, and research purposes is that there is no accurate or reliable data upon which to base an answer.

p. 22

~

The Applicant's burden has thus not been nett the license must be denied.

Furthermore, Judge laurenson goes on to conclude that "the only factual and objective data" available are the port-hour records which, as he indicates, demonstrate that for several of the recent years more than 50% of the use was for commercial purposes (p. 22-23). If the dats available are not accurate Applicant has not met its turden; if the available data which are the sole objective and factual data available indicate violation of the regulations, the Class 104 license should be denied. And if neith'er UCIA has attempted a showing of reasonable assurance of different behavior, nor the Alternate Board Member mde such a determination, the license cannot issue. 10 CFR 50.40.

All evidence points to sloppy record-keeping by UCIA, substantial concercial use in flagrant disregard for the provisions of the regulations in recent years, and an attitude of cat-and-mouse with limits imposed by NRC regulations.

They have not met their burden.

The facts of recori make clear that the reactor is obolete for the purposes for which it was intended, and has attempted to find additional work in the sale of irradiation services field, the precise kind of activity expressly forbidden by the substantial use test of the Congress.

The production of medical isotopes by the UCLA reactor has stopped, since the Medical School has its own device. All research physics experiments have long since been done, and research of the kind that can be done with an archaic Argonaut reactor just no longer exists. And student enro11Eents have shrunk in nuclear engineering at UCIA so much that UCIA is trying to count physics classes that use the reactor .24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a year as reactor dependent. The device is a dinosaur, no longer used for what it was licensed for; the license should be changed to Class 103 to reflect the changes that have taken place in its actual use. If UCIA doesn't want a license to operate if the license indicates accurately the uses to which the reactor is put, that is UCIA's business; but it is the business of the ERC to properly and legally classify licensees, and to make sure they are not given licenses

.. l

-2F to which they are not entitled.

Applicant has failed to meet its burden to demonstrate it is entitled to a Class 104 license and can te entrusted to obey the re6ulations thereto all of its own records indicate the centrary. The application for a Class 104 license must be denied. The proposed conditions are vague.

and inadequate, amounting to telling UCIA that a condition of its' license renewal will be obeying the regulations they were always supposed to be obeying, and at the same time tellin6 it not to worry about any consequences if it continues to disobey.

The device is useless for its licensed' purposes, in not used

nore than a few hours a year for those purposes, and no redefinin6 of units for the educational side of the equation while leaving un-fudged the commercial side can hide the fact. It isn't.used primarily for research and education, and is not entitled to and cannot be entrusted with a Class 104 license.- ~ . .

t Respectfully submitted,

. ,( flI

,[ f .,.i' k -l. . / -

Daniel Hirsch President dated at Ben Ionond, CA this 6th day of September,1983

,e -

RE/.CIDR USAGE Average Category 1978 MZ2 1980 1981 1978-81 CLASSROOM INSTRUCTION 52 31 46 61 47.5

$ DEMONSTRATIONS 7 5 2 3 4.25 F

i!

NEL USERS 9 1 27 31 17 M

SALE OF SERVICES (TOTAL) 237 408 481 316 360.5 TO:

UCLA USERS 105 91 101 67 91 h

COLLEGES & UNIVERSITIES 37 53 20 38 37 PRIVATE BUSINESSES. 95 264 360 all 232.5 i

. TOTAL 305 445 556 4n 429.25 p.

A 8 SALE OF SERVICES M AS PER CENT OF 'IDTAL 77.7% 91. 5 86.5% 76.9% 83.2%

3 5

E

• Derived fron: UCLA, NEL 1961 Annual Report, pages 2-3. Figures are in port hours. Since maintenance is not properly g a reactor use, but only makes such use possible, it ag has not been included. For the same reason, 82 hours9.490741e-4 days <br />0.0228 hours <br />1.35582e-4 weeks <br />3.1201e-5 months <br /> o of " parametric variation" (valve adjustment to reduce dD Argon-41 emissions) have been deducted from "NEL Users" for 1981.

UNITED STATES OF AMERICA NUCl2AR REGULATORY CCMMISSION

_BEFORE THE ATOMIC SAFETY AND LICENSINC ECARD In the Matter of Docket No. 50-142 THE RECE! TIS OF THE UNIVERSITY OF CALIFORNIA (Froposed Renewal of (UCIA Research Reactor)

DECIARATICN OF SERVICE I hereby declare that copies of the attached CBG's Exceptions to the Alternate Board Eember% nemw.lel ;culalw.

nn in contention II in the above-captioned proceeding have been served on the following by deposit in the United States sail, first class. postage prepaid, addressed as indicated, on this date: 6th day of Sentenber 1983 .

John H. Frye, III, Chairman Christine Helvick Atoalc Safety & Licensing Board Glenn R. Woods U.S. Nuclear Regulatory Commission Office of General Counsel 590 University Hall Dr. Emmeth A. Imebke 2200 University Avenue Administrative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay Washington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 Dr. Glenn O. Bright Administrative Judge Ms. Lynn Naliboff Atomic. Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washingtcri 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 .

Washirgton, D.C. 20555 6300 Wilshire alvd., #1200 los Angeles, CA 90048 Counsel for NRC S W U.S. Nuclear Regulatory Commission Judge James A. Iaurenson Washington, D.C. 20555 Atomic Safety and Licensing Board Fanel attention: Pa. Colleen Woodhead U.S. Nuclear Regulatory Commission l Vashingten. D.C. 20555 .

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

Office of Administ:ative Vice Chancellor Atomic ptfety and Licensing Board Fanel University of California U.S. Nuclear Regulatory Commission 405 Milgard Avenue Washin 'en, Los Angelea, California 90024 /-

2 55

( .

Daniel Hirsch' Fresident CCMMITTEE TO 3 RIDGE THE GAF l

l

\

..