ML20064K000

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Response Opposing NRC 820901 & Applicant 820903 Motions for Summary Disposition.Genuine Issues of Matl Fact Exist. Declaration of Svc Encl
ML20064K000
Person / Time
Site: 05000142
Issue date: 01/12/1983
From: Hirsch D 0
COMMITTEE TO BRIDGE THE GAP
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20064K001 List:
References
NUDOCS 8301180274
Download: ML20064K000 (13)
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9 usun UNITED STATES OF AMERICA !g 2 71983 >

NUCLEAR REDULATORT CDMMISSION o.f -

% ' [5N,' #E BEFORE THE ATOMIC SAFETI AllD LICDiSING B0 In the Matterc of ) N

) Docket No. 50-lu THE RiiDENTS OF THE UNIVERSITI )

0F CALIFBRNIA ) (Pmposed Renewal of

) ', Facility License)

(UCLA Research Reactor) )

RESPONSE BY THE COMMITTEE TO BRIDGE THE GAP TO MOTIONS FOR SUMMART DISPOSITION BY THE STAFF AND THE APPLICANT

COMMITTEE TO BRIDGE THE GAP 1637 Butler Avenue Los Angeles, CA 90025 (213) 478-0829 L

D 0301180274 830112 PDR ADOCK 05000142 C PDR

e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEN RE THE ATOMIC SAFETY AND LIC13SDIG BOARD In the Matter of )

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

0F CALIMRNIA ) (Proposed Renewal of

) Facility License)

(UCLA Research Reactor) )

RESPONSE BY THE COMMITTEE TO BRIDGE THE GAP TO MOTIONS mR

SUMMARY

DISPOSITION BY THE STAFF AND THE APPLICANT I. INTRODUCTION On September 1 and September 3 respective 4, the NRC Staff and the Applicant submitted motions in the above-captioned proceeding for sn=ey disposition of ouentially all contantions and subparts thereto. Both parties asserted that not a single material fact was in dispute as to any of the nearly twenty cententions and that no hearing should be pomitted on any of the issues raised by the Intervenor.

CBG objected to the all-encompassing scope of the motions, particularly in light of comments by the Board at the June, 1982, prehearing conference that CBG took as direction not to submit extensive summary disposition motions, or " shotgun" it as one of the members of the Board put it, but to only move for summary disposition in those few areas where a material dicpute genuinely does not exist and the matter can be resolved without a hearing on it. On the bulk of the issues in the case--which the Board indicated were complex and detailed--questions were likely to arise, and because "you can't ask questions of affidavits" a l

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2-hearing where witness were.2vai1=hle for -==4 nation would provide the fullest, most adequate record for the Board: to base its decisions.

CBG particularly objected to the delay occasioned by the Staff and Applicant motions, pointing out that this came is unique in that the action for which the license is requested can continne until the license request is acted upon, thus creating a powerful incentive to keep the matters as long as possible from reaching the Board for final disaision.

CBG vieugd, and continues to view, the motions as frivolous, harrassing, and a delaying tactic. Furthermore, CBG, as an Interrenor of limited financial and other resources, found the all-emoonpassing scope of the i motions and the short time provided for response unduly and impossibly burdensome.' It requested relief from the Board.

The Board extended the time for response to January 7 (and with agreement by all parties, later granted until January 12 to make the filiv because of dolays in Christmas mails and the power outages caused by the heavy stems). The Board further divided the res,onse process into two segments. The first segment involved responses focused on detemining whether genuine disputos regarding material facts do exist. At this stage.

the parties were directed to avoid discussion of the relevancev materiality, or legal conclusions that would stem from facts about which no: material 1

1 dispute exists. Those matters would be addressed later.

What follows is CBG's response, given the time permitted,to the facts asserted by Staff and Applicant to not be in dispute. It should be made clear, due to the bifurcation established by the Board, that by CBG not disputing a particular asserted fact does not mean that CBG views the supposed fact as relevant or material, or based upon admissable evidence,

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. or sufficient to meet the high legal burden a movant for stammary disposition must meet in order to prevail as a matter of law. All of these matters, as to any facts determined to not be disputed, will await.the second phase.

CBG thus waives no rights to object to the admissability, materiality.or relevance of any of the supposed facts or their cited basis, either in the second phase, if any, of the smmey disposition process, or at hear 1ng.

In addition, CBG must make clear that in responding to asserted facts not in dispute, it has not attempted, nor would the burden be appropriate on either it or the Boarti, to emine all of the vast multitude of facts in opposition. CBG's responsibility was merely to present sufficient counter-information to demonstrate that a material dispute exists, and its presentation of, for example, violations with safety significance is not intended to be an exhaustive listing, merely a sufficient showing to demonstrate that Applicant's and Staff's assertion as material facts that no violations of safety significance have ever occcrred is disputed.

CBG, for the record, reiterates its objections to the delays occasioned by what it views as substantial misuse of summary ~ disposition procedures by Applicant and Staff and hopes such maneuvers do not further defer the time for hearing.

Although a discussion of legal standards for grant of sumary disposition would appear to await the second phase of this process, as established by the Board, CBG does wish to keep clear the basic standards for smnmey disposition-that the burden is on the moving party, who must affimatively demonstrate tha absence of a material dispute; that the responses must be viewed in the light most favorable to the party responding to the motions and that the decision to be made is not which party is deemed the more correct in a dispute, but whether a material dispute exists to begin with. If so, the matter should go to hearing, where an adequate decisional record can be obtained and preserved.

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One further point should be made. Intervenors historically have been pemitted to make their cases defensively (e.g., through cross-examination of opposing parties' witnesses). This is particularly true under the Commission's mies because the burden of proof rests upon the Applicant in such cases. Summary disposition must not be

., permitted to become a clever way of shifting the burden of proof.

That burden remains on the Applicant, and it has a heavy burden in summary disposition to demonstrate, for example, that it should be, as it has requested, granted the applied-for license without its j vitnesses or evidence being subject to scrutiny or cross-examination as would happen at hearing.

Because of the nature of summary disposition,CBG, which had intended to present much of its case defensively at hearing, was forced, in a very short time, to put together what amounts to a comprehensive affimative case of the sort not normally required of Intervenors.

The decision to be made at this stage is not whether CBG's

,- position on these disputes should ultimately prevail--although we think we have made a very good showing on that score--but rather whether Staff and Applicant have demonstrated adequately the lack of existence of genuine disputes. We think the answer will be readily apparent from an examination of what follows and comparison with the showing made in the Staff and Applicant pleadings and affidavits. Most of their " facts" l

l rest on single-sentence unsupported conclusionary statements, insufficient to meet their burden of demonstrating lack of material dispute. But a detailed discussion of whether the moving parties have met their burden will avait a further stage.

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1 Because the Board's procedure directed the focus at this

stage be on the statements of material fact put forth by the parties, t

! CBG has not responded in this pleading to the arguments put forth by i

Staff and Applicant in the body of their legal argument. Silence at this stage should, of course, not be taken as assent.

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DISCUSSION i

The central issues in this proceeding cover a wide range of disputes.

l In what follows, CBG will put forth its showing that:

  • The use of weapons-grade uranium in kilogram or greater quantities poses a significant and unnecessary proliferation threat, one that runs counter to national and NRC policy to reduce wherever possible HEU available.
  • Low Enriched Uranium fuels are currently available. The ASLB l thus has the current option of carrying out the NRC policy of.

using its licensing power to reduce the availability of material

that, if stolen or diverted, could be used to make a nuclear weapon.

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  • Substantial safety benefits-particularly in protection against destructive power excursions--would result from such conversion as well as the non-proliferation benefit.
  • Very serious accidents are credible at this reactor facility, with consequences vastly higher than those predicted by UCLA or the Staff for the accidents they have deemed the maximum credible.

Because of major errors in analysis, these accident scenarios have been inadequately assessed.

  • The reactor--composed of graphite, uranium metal, and magnesium-can burn, as in the Windscale accider.t. This would provide a powerful driving force which could result in a very large fraction of the fission product inventory being released.
  • The reactor can suffer a severe power excursion--in which the power rises uncontrollably many orders of magnitude in milliseconds--

resulting in fuel melting and explosive disassembly of the core, j as in the SL-1 accident case and as demonstrated at BORAI and SFERT.

  • The storage of Wigner energy--stored energy in graphite induced by irradiation at relatively low temperatures--has been severely underassessed at the facility. The true energy storage level, given the calculational methodology employed by the Staff consulting group but using numerical inputs more accurate for the UCLA case, indicates that a tenperature rise of only 120 C could be sufficient to release enough Wigner energy to bring temperature to the melting or ignition temperature.
  • A number of other credible accidents of far larger consequences than those examined by Staff or Applicant to date exist. But even the Staff's mavimum credible accident--involving release of .189%

of the assumed core inventory of radioiodine and essentially nothing else--produce unacceptable doses to the public, in excess of 9000 rem to the thyroid.

  • A more realistic release fraction--25% of the radioiodines, the level indicated by the industry standard for site evaluation for reaearch reactors--produces doses in excess of permissible levels for tens of kilometers from the facility and doses as high as a million rem to the thyroid at the facility boundary.
  • The particular site characteristics at UCLA--lack of exclusion zone whatsoever, dense population immediately around the facility and out a great distance beyond, no containment structure or other engineered features to reduce quantit'ies of fission products that would be released in an accident--greatly exacerbates the consequences of a potential accident at the facility.
  • The history of regulatory noncompliance, inadequate managerial controls, insufficient attention to maintenance, the age and unreliability of the reactor and its supporting equipment, and a series of calibration errors greatly increase the probability of and consequences from an accident at the facility.

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  • During normal operation, however, doses far in excess of safe levels are indicated in several areas containing large numbers of people.

Argon kl concentrations many times the 10 CFR 20 Appendix B limits are indicated in unrestricted areas, even when operating time is factored in. And because of inadequate shielding, gamma and neutron

" shine" above the reactor may be exposing members of the public to very substantial doses, given the available data fran radiation surveys. Because the reactor and reactor facility were built for a 10 kw rea-tor with no construction above, the current 100 kw reactor poses a serious potential for hazard to those people now above it.

  • The reactor is not used for the purposes for which it was licensed or the purposes which it claims. By far the majority of reactor use now is commercial activity, in violation of the license. The facility has almost no instructicnal and research utility; whatever such uses may have existed have long since ceased.
  • The true environmental impacts of the proposed action, and serious alternatives thereto, have not been examined adequately.

The impacts are potentially very severe, and the alternatives very attractive.

  • The University has not been forthcoming with the Board about its current financial situation. The University, and the State, its primary funding source, face the gravest fiscal crisis since the Great Depression. The University system faces cuts the equivalent, says the University President, of closing 2 of the 9 campuses in the system, or shutting all 24 professional schools in engineering, business, agriculture, lau, public health, nursing and education.

Furthermore, the Applicant has not been forthcoming in alerting the Board to the identification of the reactor program as a low-enrollment, low-cost-effective item that is recommended for consolidation with one of the several other reactor programs within the UC system.

  • Lastly, the Applicant has failed to be forthcoming in its application.

That application contains numerous misleading and materially false statements; furthemore, the University has copied, without independent verification, and often without so identifying it, material from other sourcea irrelevant or of unproven validity for the UCLA case.

This failure, after 22 years, to conduct a safety review of its own for the facility, or a confimatory review of the analyses it has relied upon, has led to reproduction of major errors in these analyses which have pemitted operating conditions that pose substantial risks to the public. The failure to conduct an adequate independent analysis of its own facility and its purported inability to do so raise serious questions about the ability of the Applicant to understand the reactor for which the license is requested and to propprly assess the safety implications of proposed facility changes, new experiments, instrumentation alterations, relaxing of previous safety limits, and the like.

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To demonstrate the existence of these disputes with the quite different view of the facts held by Applicant and Staff, CBG has relied upon the following experts whose declarations are attached:

Dr. Herbert Scoville President of the Ams Control Association; former Assistant Director, U.S. Arms Control and Disarmament Association; fomer Deputy Director (scientific) Central Intelligence Agency; former Technical Director, D0D Special Weapons Project Dr. Theodore Taylor internationally recognized expert in the nuclear safeguards field; former nuclear weapons designer at Los Alamos; one of the designers (with Teller and Dyson) of the TRIGA reactor; member of the Kemeny Commission on the Tl!I accident Boyd Norton Group Leader of the Nuclear Test Section of SPERT; in charge of operation of both the SPERT I and III reactors; the man who " blew up" SPERT I in the final destruct test Professor James Varf Professor of Chemistry at USC; former Group Leader of the Analytic Section and the Inorganic Section of the Manhattan Project Professor Jackson Davis Professor of Biology and Environmental Studies at the University of California at Santa Cmz Professor Michio Kaku nuclear physicist, City University of New York (CCNY campus)

Dr. Ira Monosson formerly the Chief }(edical Officer of CAL-OSEA; now in private practice in occupational and environmental l health l

Dr. Jan Beyea a leading expert on dispersion modelling and accident consequence assessment for nuclear facility accidents Louis Foster formerly with the Nuclear Environmental Services Division of SAI, implementing radiation monitoring systems at numerota nuclear power plants around the country Dr. Ed Cooperman Professor of Physicc and Chairman of the Radiation Safety l Coraittee at California State University at Fullerton l

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Additionally, declarations by the following members of the Southern California Federation of Scientists are included: Dr. Sheldon Plotkin, a safety and systems engineer; Miguel Pulido, a mechanical engineer; David Dupont, a chemist; Dr. Irving Lyon, an environmental consultant; Steven Aftergood, an environmental researcher on the CBG staff; and Daniel Hirsch, CBG President. In addition, declarations are provided by Neal Donovan-Gantz, an environmental intern formerly with CBG, and Leo Baefsky, s certified public accountant.

CONCLUSION CBG respectfully submits that its responses to the Staff and j Applicant motions thoroughly demonstrate the existence of genuine disputes as to materiaJ. facto put forth and that a full evidentiary hearing on %ese matters should be expeditiously undertaken.

Respectfully sybmitted, e '

lQ /

Daniel Hirsch C'

President COMMITTEE TO BRIDGE THE GAP Dated at Los Angeles, CA this 12th day of January,1983

UNITED STATES OF AVERICA NUCLEAR REGULATCRY COMMISSICN BEFORE THE ATOMIC SAFETY AND LICENSING BCARD In the Matter of Docket No. 50-142 THE RECE!rFS OF THE UNIVERSITY .

OF CALIFORNIA (Proposed Renewal of (UCIA Research Reactor)

DECIARATION OF SERVICE I hereby declare that copies of the attached: CEG R2SPCNSE TO

' TAFF S AND APPLICANT sIOTIONS FOR SUICIAR1 ulos voluvo in the above-captioned proceeding have been served on the followir4 by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: January 12. 19o, 3 .

John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Clenn R. Woods U.S. Nuclear Regulatory Commission Office of Ceneral Counsel 590 University Hall Dr. Emmoth' A. Imebke 2200 University Avenue Adminis trative 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. Oscar H. Paria Administrative Judge Sarah Shirley Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washington, D.C. 20555 1685 Pain Street Chief, Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 e attention Ms. Colleen Woodhead William H. Cormier Office of Administ2a tive Vice Chancellor /

University of California / \ O 405 Hilgard Ave ue Los Angeles, California 90024 jO

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President CCMMITTEE TO 3 RIDGE THE GAP

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, .- r CONTENTION I S [.g g RESPONSE TO STAFF'S ASSERTED MATERIAL F4 Jg I 7 I C 1983, T o.v.

1. NOT DISPUTED y ,f/'gg. p
2. NOT DISPUTED g ,,

ra 3 DISPUTED (Davis declaration, 120,22-23; " Simulation of Earthquake-Induced Vibrations in a UCLA Reactor Fuel Bundle," unpublished ms. by Richard Lee Rudman, 1968, excerpt attached; Norton declaration for V, 259; Kaku declaration for III, I.69)

4. DISPUTED (same citations as in 3 above; plus 1968 inspection report;
plus Davis declaration at 121) 5 DISPUTED. (i.e., the accident analysis in the amended application was performed, not by UCLA staff, but by the NRC staff consultants; see Cort and Hawley studies, amended application which includes them by reference, and Davis declaration at E16-17)
6. DISPUTED (Davis I 18,35; Aftergood and Beyea declarations for III;)
7. LEGAL CONCLUSION
8. LEGAL CONCLUSION
9. DISPUTED ( Aftergood declaration for I, entire doc. plus attachments, key passages I 10-14)

! 10. DISPUTED (Davis, E19-20,23; Plotkin for I,E 6;Norton for V,E59; 1976 Annual Report, internal, quoted in Davis E19; primary coolant leak

! reported to AEC as reportable occurrence shortly after earthquake)

11. DISPUTED (Plotkin for I, 17-8)

, 12. DISPUTED (Kaku for III, E 85) i

13. DISPUTED (Kaku E85; Davis E10-13 l 14. DISPUTED (Aftergood and Beyea dec1( ~itions entire, for III; Kaku for III l

at 183-4,86;Norton, E76)

15. DISPUTED (Davis 129-33; Cooperman E6-9;Baersky for IVIII,E9-10; l Report of the Universitywide Program Review Committee on Engineering, section attached to Baefsky XVIII declaration)
16. DISPUTED (Norton for V, E12-14,15-16; Melted fuel from Spert ?3.50 excursion, photo attached to Norton declaration; Kaku for III, E44-54)
17. LEGAL CONCLUSION.

I-l RESP 03SE TO UCLA'S ASSERTED MATERIAL FACTS

1. DISPUTED. (The two sets of questions submitted by Staff requesting additional information; for example, to break the "research' category of reactor use into categories cuch as commercial),
2. DISPUTED. (Davis I4,9-14,19-23; Ashbaugh memorandum on wells, following Davis declaration; Donovan-Gantz I2-5; Aftergood for I, I2 and following; Plotkin for I, I 5-9)
3. DISPUTED. (Plotkin for I, I7,9;Pulido 133; Monosson for IV, I21)

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