ML20073B763

Objections to Certain Scheduling Matters Detailed in ASLB 830323 Memorandum & Order.Allowing NRC to Present Case First Creates Appearance of Improper Shift of Burden of Proof. Declaration of Svc Encl

ML20073B763
Person / Time
Site:	05000142
Issue date:	04/07/1983
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:
References
ISSUANCES-OL, NUDOCS 8304120538
Download: ML20073B763 (18)

Text

_ _ _ . . . . _ -. __

UOjKyTED COMMITTEE TO BRIDGE THE GAP April 7, 1983 1637 Butler Avenue, Suite 203 '83 [q jj g g ;5g' Los Angeles, CA 90025 (213)478-0829 UNITED SIATES OF AMERICA NUCLEAR REGUIATORY COMMISSION BEFORE THE A70MIC SAFErY AND LICENSING BCARD In the Matter of )

Docket No. 50-142 OL THE REGENTS OF THE UNIVERSITY OF CALIFORNIA- (Proposed Renewal of Facility License)

(UCLAResearchReactor)

CBG OBJECTIONS TO CERTAIN SCHEDULING MA1TERS DETAILED IN THE BOARD'S MEMORANDUM AND ORDER OF MARCH 23.1983 I. INTRODUCTION 2e Board has indicated in its Memoranium and Order of March 23,1983, (p. 22) that it has decided to hear first the case of the NRC Staff, then that of the Applicant, and thereafter that of CBG as to the inherent safety matter. The City of Santa Monica has stated that it would be ". < . quite concerned about any action that e,ven appears to shift the burden of proof from Applicant to Staff." The Board therefore provided CBG and the City the opportunity to object to this proposed presentation order and any adverse affect it might have on preserving the burden of proof I

with the Applicants t.he Board likewise provided the other parties with an l opportunity to responi to any such objections.

8304120538 830407 PDR ADDCK 05000p 4 0

3Eos

y _

y -

. .. , a.a :, s . : - .c__... . . ~ . :. . . - ,

[ i CBG herein makes known its objections to the above matter, as well as to certain other scheduling matters included in the March 23 Crder.

i II. HAVING THE STAFF 4 PRESENT ITS CASE FIRST l VOULD CREATE AT LEAST N APPEARANCE OF AN IMPROPER SHIFT

{

& THE BURDEN & PROOF I

! A. Background l At the February 23, 1983, prehearing conference, the presiding 1

, officer directed that the Applicant would go first at hearing, due to it bearing the burden of proofa ..

i j

l JUDGE FRYE: Mr. Cormier, you will go first since you are the .

Applicant and have the burden of proof.

1 i TR 91f j No objections were raised at that time, nor have any objections been j raised since that time, to that determination of order of presentation.

I r j At the March 9 and krch 11 conference calla 2/, brief discussion i

{ occurred about the problem posed by the fact that Applicant's witnesses, l as yet largely unidentified,. night wish to refer to and comment upont i

j the studies performed for the NRC Staff. Judge Frye asked if there i

would be any objection to pre-admitting those studies. CBG's representative j inquired whether pre-admission was for the purposes of authentication of l the studies or to admit them for the truth of the matters contained therein, l to which Judge Frye indibated he was referring to latter. CBG indicated i

j it would indeed object to such a procedure.

M Because of service difficulties due to Mr. Hirsch being out of town at the time of service of the Board Order, the Board extended CBG's response time by one working day.

2/ No transcript was apparently kept of those conference calls,-during which matters were discussed which were quite important and potentially very injurious to CBG's interests in this proceeding. CBG requests that, i in the future, conference calls where matters of such importance are considered, '

be transcribed, so that a record any be preserved. *- *'

.. . ~ ,

. ~ ..x= -.~ . . . - . . X w.

4 b l

! + i During the conference calls, Counsel for the Staff indicated f

it would be willing to put on its case second. It is CBC's' clear recollection f

l that there was no suggestion nor any discussion of. the prospect of Staff's case being put on first, prior even to that of the Applicant.

On krch 15, cBC submitted a action on scheduling matters Y T

j' which, requested, inter alia, that those portions of Contention I which l relate to inherent safety questions be heard during the inherent safety.

j hearings. Among the matters addressed in Contention I is the reliance i

j by the Applicant on a series of analyses (the original Hasards Analysis, l a general AEC statement of. environmental considerations for research reactors, j and the Staff studies) it did not perform and CBG's contention that the inability of the Applicant to perfora 4ssentially any of its own safety analyses demonstrates lack of the necessary technical competence to safely operate the facility, as well as being a major insufficiency in the Application.

The Board indicated in its March 23 Order that it would await the responses l by the other parties before ruling on the' CBG motion to include the Contention I issues in the summer evidentiary hearings rather than defer them to a later stage.

t In its March 23 Memorandum and Order, the Board stated as follows:

k' In the course of discussion of the ' scheduling of the evidentiary hearing on inherent safety, questions arose as to the order of the parties' presentations. - UCIA's representative raised the question whether UCIA's reliance on Staff documents might present j a procedural' problem because, at the time UCIA's witnesses testify, j those documents would not ordinarily have been introduced. In the l 1 ensuing discussion, CBC's representative noted that he would l object to UCIA's reliance on these documents. Staff counsel

offered to put Staff's witnesses on first. After reflection, in i view of the fact that CBG's witnesses criticise Staff's and UCIA's 4

assumptions and cenclusions, the Board decided to accept Staff

. counsel's offer. This would have the effect of taking all of the j J/ This difference in recollection between CBG and the Board as to what transpired during those conference calls underscores.the need for a transcript in such a situation.

j Y "CBG Memorandum and Motion Re6arding Hearing Scheduling Matters", 3/lh/83 i l

I~

--_ _ _ _ _ __ - _ . _ _ _ . . ._ _ _ . ._______._e_.,__-v-.,. . , . ...-.3 . , . _ . , ., ,.-,,._....,_,..,,,..,__m..,,,,,-,.,,_,,.._w- _ - , , , , . . , , _ ,

~ - . -a x ~ .. . . .  ::.~ . . - . _ . ~ - 2_ - . ,

i-

! evidence that justifies UCIA's and Staff?s positions (which CBG i

attacks) first and the criticism of those positions second, thus making for a more comprehensible record.

1. p. 22 i

t The Board ruled further that, " Consequently, should CBG or Santa Monica I desire to seek relief on this account, they are to file motions by April 6 l [laterextendedtoApril?[. UCIA and Staff any respond as provided in

' the rules." Order. p. 23 I B. Objections to the Decisional Procedure As noted above, the Board had determined at.the prehearing l

conference (TR 915) that the Applicant, because it carries the burden of 1

l proof, weald, as is the normal procedure, present its case first.

i

No request for recensideration has been made, yet the Boszd has, on its own i

. notion and without providing .the parties an opportunity to argue the matter

} Prior to the decision -

e (the City was.not even a party to the l conference call and CBG was not even put on notice that the Board was i

i considering hearing the Staff case first), reversed itself ani normal hearing 1

i procedure. The Board has provided parties injured by the decision the right l to submit motions for reconsideration, but it also provides the parties a

favored by the decision the right to reply. '(Monorandum and Order, p. 23).

I CBG?s concern about this decisional process is two-fold.

i 3

First of all, it appears to result in a shifting of burdens. If a party i were aggrieved by the Bona's determination at the prehearing conference f

that UCIA would go first (and no such objections were registered), that party should have the burden of requesting reconsideration, with an opportunity.

forreplybytheotherparties(e.g.CBG). However, the Board has reversed 4

that burden, requiring CBG to show why the original determination should stand and permitting those parties benefited by the Board's unilateral reversal

. - _ _ _ __ _ . _ . - ~ _ .

. .a-. .. w a . .- . - - -. - . - -

1 l the last word. More importantly .the Board made a determination that the l Staff would.go first without making clear to the parties (at least to CBG) t that it was considering such a ruling and thus without providing CBG an i opportunity to presents its views prior to the decisionrbeing' reached.

I CBG is therefore now faced with the additional burdens associated with

}~

, reversing a Board decision rather than the normal burdens associated with

! all pariiss equally arguing a matter prior to decision.

I

! Secondly, the Board in this matter and in certain other recent related matters has taken action the effect of which is to assist the Applicant f

without the Applicant even formally requesting such relief, or has provided l relief that goes substantially beyond tht which was requested. 1his seems to CBG to go beyond the Board's primary duty of resolving disputes put t

l before it. As the Board has often reminded the Applicant, it is the Applicant

, itself which must, as best it can, put on its own case. In this instance,'the l Applicant merely, in the course of a wide-ranging discussion of other i

j matters during the conference calls, asked as an aside the question of i

! how it was to resolve a particular evidentiary dilemma it faced: presentation 1

i j of its case when the bulk of its case rested on studies it could not sponsor i

j because it'had no witnesses who knew anything independently about the studies.

! Such a question is, of course, mare appropriately addressed to in-house legal I advisors than the presiding tribunal, as it is essentially a matter of how i

f best on party can put on its own case, given the legal quandry it finds itself i

j in due to heavy reliance on materials it cannat sponsor as evidence.

I However, without a formal request for relief, or specific suggestions for i

l relief from the Applicant, the Board proceeded to propose various solutions

. fog the Applicant (e.g., pre-ad:.tission of the Staff studies) and consider i those suggestions on its own motion. And, after close of the conference calls, I

l l

the Board has come up with another possible solution to the Applicant's dilemma (e.g., that of putting Staff's case on first), and putting that suggestion into effect on its own motion without a prior opportunity for the other parties to argue the matter, switching the burden regarding the action from Applicant, whom it would benefit, to CBG, whom it would injure.

To all this, CBG wishes to preserve its objections..

C. Objections to Decision on order of Presentation of Evidence: Motion for Reconsideration The substantive decision hy the Board that, rather than as initially determined and as is the normal order, Applicant would not present its case -first is objectionable for several reasons. It would tend to create at least the impression of an impermissible shifting of the burden of proof from the Applicant to the NRC Staff. It would make for a less comprehensible record, because the logical presentation would be the Application first (which is the matter to be ultimately ruled upon), followed by-i differing reviews of that Application by Staff and CBG witnesses. And it is objectionable because no good cause has been demonstrated for reversal,astheproblemsoughttobeavoided(difficultyinreferringto materialthatwillbeintroducedatalaterpointinthehearing)isa common situation readily resolvable through normal procedures and which would exist no matter which party goes first.

As to the first point, the Applicant has the burden of proof.

10 CFR 2.732. And as indicated by Judge Frye (TR 915),the party with the burden of proof presents its case first. As to whether Applicant's reliance upon the Staff's case is so all-encompassing as to affect a determination whether the Applicant has met its burden must await, obviously, presentation of- the Applicant's case, as well as resolution of Contention I. At this time,

i the Applicant refuses to identify its witnesses, let alone the areas of their testimony, so the degree and nature of Applicant's ultimate reliances

! on the Staff's case is an unknown to all but the Applicant. However', there i

l is absolutely no question that the burden of proof rests with the Applicant, i and putting on the Staff case would create a dangerous impression of shifting 1

l il of burden in a proceeding where that alleged attempt to shift ths burden of ,

i proof is a central issue.

t

, As to the seconi pointe . CBG agrees with the Board's assertion i

that a more comprehensible record would be created were "the evidence that j justifies UCIA's ani Staff's positions (which CBG attacks)"'taken~ first l and the criticism of those positions taken second. However, the sub-porti'on f of that proposal, that of the positions favoring the Application, the Applicant j be put in a secondary role in the hearing order would, CBG asserts, actually j make for a less comprehensible record. The Application is the document I

before the Board for decisions it is the Application that forms lthe basis -

for the differing Staff ani CBG reviews of the Applicant's proposalt ami it

! is the Application that contains the basic information about this particular reactor up for this particular licensing action. Both the Staff's case ani I i -

that of CBG's heavily reference the Application. 'Ihus, the precise problem l l- the Board attempts to avoid by putting the Staff on first--difficulties 1 -

l created by reference to ani comments upon documents not yet in evidence-i would be created as much or more by putting the Staff on first than keeping i

i the normal order _of Applicant firat. A quick look at the SER indicates that l that Staff document more heavily references (and is dependent upon) the Application than is the case with the Application's references to the Staff studies.

This leads to the third point, that the difficulty in referring l -

to or commenting upon information later to be introduced in evidence is a' common one for which normal procedures are available for resolution.

I 1

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

.. ..-.. -. . .- - . \

., i 4

i Parties cosmonly consent on or rely upon evidence in their testimony that, because of order of presentation of testimony, any not yet have been accepted l

into evidence. The comments remain hypothetical until such time as the material is accepted into evidence, at which point the foundation has been j established and the record is unde complete. Putting the Staff first would i simply switch to the Staff that same situation, as its SER and studies would not be fully admissible in so far as they rely upon the Application not then in evidence. In fact, far greater difficulties would be posed with Staff first, for every time a specific statistic is needed for the UCLA reactor hr Staff witnessesintheirtestimony(e.g.,UCLA'sneutronfluxforWignerconsideration),

I all conclusions dependent.upon the truth of the material taken from the Application would be only tentatively accepted until the Application, and that portion of the Application, were fully accepted in as evidence.

j CBG thus respectfully submits that putting the Staff's case on l first would create at least an injurious appearance of countenancing a shift 3

d of the burden of proof from Applicant to Staff that a more comprehensible record would be established with the Application offered? into evidence first, and the opposing analyses and reviews of the Application presented thereafterr and that the normal procedures for dealing with references to 1

documents later to be offered into evidence are more than sufficient in this case, no good'eause being shown to go beyond them, and that the problem to be solved i

f would in fact not be solved, but merely shifted to a problem with references 1 -

! to the Application before it was offered into evidence. For the reasons  !

i \

i identified above, CBG respectfully moves the Board to reconsider and reverse 1

l its decision putting the Staff's case on first, and return to its original e

1 plan of Applicant, as is the usual situation, first. CBG has no objection to Staff going second, but vigorously objects to the Applicant, with the burden i of Proof and being the proponent of the requested license not presenting i

its case first.

f

! . III. REQM ST FOR RECONSIDERATION OF D11FERRAL CF DISPERSION / DOSE CONSIDERATIONS FROM INHERENT SAFETY HEARINGS A. Introduct&on At page 11 of its March 23 Memorandum and Order, the 4 Board recounted portions of two conference calls in which CBG indicated that because of possible witness avs' i lability considerations, it might substitute witnesses on the dispersion / dose aspects of the inherent safety -

contentions. CBG had indicated that it had no problem making that substitution, and auch objected to the possibility, suggested by the Board, that in light of the witness availability consideration, these matters be deferred from

- the inherent safety hearings. Both UCIA and Staff said they had no difficulty in considering the dose / dispersion matter during the inherent safety hearings.

Nonetheless, though'no party requested deferral ani CBG strongly opposed it, the Board decided to defer consideration of the matter, i

ruling, in part, "...although CBG has offered to produce substitute dispersion witnesses this summer, it would be preferable to treat this issue at a 4

time when CBG's key witnesses are available. The Board has therefore determined to defer the issue of dispersion to phaseitwo."

Based in part on new developments regarding witness availability, I

CBG respectfully requests the Board reconsider its decision to defer the l dose assessment issue.

B. Discussion CBG's primary declarants on the dispersion matter were Steven Aftergood, Jan Boyea, and Miguel Pulido. Other witnesses who would likely contribute to consideration of that matter are Dr. Kaku, Dr. Plotkin, W. du Pont, l

k. Norton, and Dr. Warf, all of whom CBG hopes to have available at the (

inherent safety hearing (Dr. Warf being the prime unceriminty at this' time.)

C _a . _ _ . _ . . . . _ , . ._ . . _ .

l1 i ,

i, i

1 l Of the primary declarants (Aftergood, Boyea and Pulido), l l CBG indicated at the prehearing conference and again in the early March conference calls that there was a possibility Mr. Aftergood would be' out of the country for a year h-inning in June and that Dr. Beyea's availability i i i for the hearings was uncertain, irrespecti.e of their date, but that suitable i substitutes were available.

! Since that time, we have learned that Mr. Aftergood will not

{ be leaving the country, at least not through the summer, and we have

ascertained the availability in early August of suitable substitute (s) for i

Dr. Beyea. Mr. Aftergoed and the substitute (s) for Dr.~ Beyes have. considerable scheduling uncertainties after early August, and we thus cannot guarantee their availability for a later hearing. Thua, if the Board wishes to hear this matter, as indicated in its Order, "at a time when CBG's key witnesses are available," this issue should be heard during the inherent safety hearings.

Furthermore, contributing to the testimony of the key witnesses will be, as indicated above, several of tn. witnesses who are already

scheduled to be present for the sunner evidentiary hearing. It is very i

unlikely that we would be able to bring several of the key ones back a second time to contribute to consideration at a later date of the consequences -

of the accident sequences already analysed.

Additionally, separating the matter of accident consequences

} from accident initiating eventis would greatly cosplicate the Board's decision i to be reached after Phase One, whether UCIA has shown "that the reactor is j not only safe, but safe by a wide margin." (Memorandum, P. 8). ht =* win '

l i of safety is a function of,the degree to' which the consequences of the maximum credible hasard event are acceptably low. 'Ihere really is no other i

I measure of safety than a determination of maximum credible consequences.

j. e i

a

/

s

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

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

_ - ,_ .m  ; .. .~ ._. . . .

%3 s 'Q :

L ,

. Staff repeatedly has argued that the standard for safety for research reactors in nteras of accident is Part 20, contending that the doses resulting from .

even the maximum credible earthquake, fuel bandling accident, sabotage incident, or plane crash would be below that shndard. CBG, of course, contends ,

i that even the maximum credible event hypothesized by Staff results in doses far in excess of that standard, and that far larger release fractions fison more serious accidents are possible.

All parties agree that the matter of dose' sad dispersion estimates are simple. matters of simple anthematics, not likely to require auch time at hearing. It appears that those estimates are central to the Board's I findings on inherent safety, because the measure of safety is the acceptability of the consequences of the hasard scenario producing the greatest release fraction (that fraction alone tells nothing without translating it into dose via

-+

accepteddispersionanddosefactors). And, furthermore, CBG's witnesses on .this matter will be available in early August, while their availability is far more limited later.

CBG therefore respectfully requests that the Board reconsider its determination to defer the dese/ dispersion portions of the inherent safety contentions. As no other party had. objections to consideration of r

l this matter at the inherent safety hearings, we request the Board expedite a decision on this request. .

)

4

)

l w

4 .

13-I-

. IV. RESPONSE TO BOARD'S COMMENTS l AS TO AUTHORITY TO SET DATES FOR PREFILING OF TESTIMCNY j

l l A. Introduction l

! l 1

On March 15, 1983, CBG requested that the Board establish

{

i

{ adateforprofilingoftestimonyatleastsixty(60)dayspriorto -

I

the start of the evidentiary hearings on inherent safety. The City of

} Santa Monica made a similar request.

i l CBG made its request because the Staff and UCIA, through f misusing summary disposition procedures as a form of discovery, had essentially i

l forced CBG to profile its written testimony over six months before hearing,

}

~

whereas- Staff and UCIA, admitting thd.they were using the intervening l

1 time to prepare resp 6nse to the C1C testimony, refused to submit their i

j testimony earlier than a few weeks before hearing. CBG pointed out that f Staff and Applicant had both previously agreed to pre-filing their testimony 1

in My when hearings were being considered for June, and therefore a May l date for profiling of testimony, no matter when the hearing actually occurred, i

i would pose no difficulty. CEG further pointed out that it had performed I

j a significant service for the Board to date by being able to point out major errors in the original Application and the Staff studies, ande possible j only by sufficient time to check. calculations and references,-and that -

j the evidentiary record would be sorely deficient if through this procedural effort by Staff and UCIA, revised analyses or new calculations were presented  !

j to the Board and parties for the first time with virtually no time for review, 2

checking, or preparation of cross-====ination or rebuttal.' CBG's interests

]

j would be sorely damaged, we argued, as would be the public's by presentation l' of an essentially unscrutinised case.. -

I

^

Se Board, in its March 23 Memorandum and order, offered the following comments with regard the scheduling matter discussed above 1

First, we are in general agreement wii.h CBG and Santa Monica that they should have ample time to evaluate Staff's and UCIA's testimony in advance of hearing. However, insofar as the filing of Staff's testimony is concerned,we have only ,

a limited ability to set deadlines. See Offshore Power Systems l (Floating Nuclear Plants) ALAB-489, 8 NRC 194 (ly?9).

P. 23 ', t CBG, upon reviewing the cited case, does not see it as in any fashion limiting the Board's ability to set deadlines for profiling of testimony, by Staff or any other party. 'Ihis matter is discussed below, i B. Discussion Offshore Power, supra, dealt not with a Licensing Board's authority to set a deadline for profiling of testimony by Staff, but the authority of ASLB's to set deadlines for filing of the basic Staff documents in a case, the environmental statement and safety evaluation report. Testimony profiling for upcoming hearings is clearly a matter more within a Board's discretion than the matter of due dates for SER's and ER's.

However, the Offshore Power case found that Licensing Board's

, do have the authority to order the Staff to sulait its) environmentel statement by a set day if found necessary to avoid unjustifiable delay, and established certain guidelines and review procedures in such cases.

So, even were the issue that of an environmental statement, the Board has the authority to order its submission by a set date. But the matter before the Board in this situation is one far more clearly-within the Board's powers 1torregulate the~ proceeding, simply scheduling of profiled testimony far after the SIR and EIA have been filed in the proceeding. Sere is no question the Board has the authority to meet CEG's and the City's request for sufficient review time for new material from

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

. . . u- .. . - . w: .

i i

l Staff and Applicant.  !

Furthermore, there is newly-received information that the purpose of the delay is merely to provide longer opportunity for Staff's l 8

witnesses to prepare rebuttal to CBG's already pre-filed testimony and  :,

to shield the Staff's testimony as long as possible from CBG and City scrutiny.

Attached hereto is a letter to Sean Hawley, Staff's witness as to the Battelle study, fan Counsel for Staff, dated February 16, 1983. h letter was ebtained only recently by a visit to the PDRiin Washingtons it had not [

t been provided to the parties or received yet by the LPDR (this problem with l t

theLPDRhavingbeendiscussedpreviously). [

The letter outlines a series of weak points identified in the Battelle study by the declarations of CBG witnesses Kaku, Norton, DuPont i

and Warf, and asks the Staff witness to begin preparing his response to f

their testimony. t t

Certainly, if Staff is to be permitted six.aonths before the hearing to prepare its case based on CBG's testimony, CBG has atright to at least two months to review the Staff and UCIA's testimony. ,

[

. Finally, another new development underscores this need.  ;

r Mr. Norton, one of CBG's key witnesses and central to any rebuttal testimony,  !

5 will be completely unavailable to review UCIA and Staff testimony or prepare rebuttal for the month preceding the hearing._ Two other key witnesses wiil

_ be similarly unavailable for review and rebuttal preparation during the [

I same period. Earlier pre-filing is essential to preserve fairness and, more ~i importantly, to give the Board the benefit of an adequate record.  ;

r

-r i

i i _- - - - . , .s . ..

l w . .: . . . . ~ - . . - . . - . . - .

? '.

1.

4 V. DIVERSION OF RESOURCES SHORTLY  :

BEFORE HEARING i

l De regulatiens provide that summary disposition notions not be considered shortly before hearings if they would divert substantial l resources from preparation for hearing. As we get closer to hearing, CBG requests that the Board take notice of th workload required W Crders demanding that legal issues attendant to summary disposition motions, or other le6al matters, be briefed on very short notice..

j Just three days ago, CBG had to submit a forty-five page brief on a number of matters which, as indicated in that brief, CBG believes no justification existed to require briefing, were the Board's l procedures as to bifurcated consideration of summary disposition followed.

Judge Frye said at the February 23 prehearing confer 6nce about 1

that procedure ro6arding the sunsary disposition actions still not. decided:

! At this point we've got two options on these notions that l have not yet been ruled one we can treat them in the same j way that we have treated the ones that we have ruled on and deny them because we find that they are factual disputes.

If we find that there are no factual disputes, then we sto into the second phase and we get responses on the legal points from the opponents to the motion and then we reach a decision on the motion, summarily disposing of the issue.

l To which Mr. Cernier responded i

l Judge, Frye, could I suggest that, in the interest of saving  ;

j time on those nonsafety issues, perhaps we ought to have then I j fully briefed as soon as possible.

i j And Judge Frye responded l Well, I don't want to get into that because if there are factual 1 disputes underlying them. then there is no point in having further briefing on them at this stage.

l

. Se disputes as to facts.which require a hearing to resolve them, we're going to have to have a hearing, and your briefing then

! will come in the form of proposed findings and conclusions.

i .

2 i

..~.__m - . . . . . . - - -

g

, - . . ... .w - ...- . .. - . - -

l .,

i6- .

It's only if there are no disputes as to any material fact that require a hearing for resolution -- l MR. CORMIER: I understand. j r

JUDGE FRYE: -that we get to the next step of the briefing, and  !

that, in essence, takes the place of the proposed findings and i conclusions and goes to the legal consequences of these facts. j (emphasis added) [

TR 974-5  !

i Thus, the procedure imposed by 'the Board in its initial Orders and i reiterated at the prehearing conference was that the Board would first rule as to whether disputes existed as to material facts (i.e., facts f assertedtobematerialbythenovant),and"onlyiftherearenodisputes {

as to any material fact" would we get to the next step of the briefing.  !

o CBG' is concerned that the Applicant is continuing to use '

i the summary disposition, procedures as a form of discovery rather than for their intended purpose, and new attempts to- discover CBG's legal  ;

i strategy and arguments intended for its proposed findings of fact and l conclusions of law. This is most inappropriate. j Furthermore, continued requiring of CBG, especially on short i

notice, to brief extensive le8a1 matters will significantly divert needed j I

resources away from preparation for..the upcoming evidentiary hearing.  !

t Since, as the Board has already noted, the fundamental conclusions, i 4

i assumptions and premises underlying the Staff and Applicant's case (s) are subject to genuine dispute, CBG suggests that the requirement to brief  !

l legal consequences of facts that are clearly in dispute goes beyond the Board's bifurcated procedure and unduly 1$urdens CBG, an Intervenor of f

extremely limited resources, particularly at a time when .that burden '!

significantly takes away from its ability to prepare for hearing. f i

k i

~ . .. :. w. , .e _ . , . . _. _

0 VI. STARTING DATE FOR EVIDENTIARY HEARING _

'Ihe Board has indicated in its Order that the evidentiary hearing will begin either July 18 or July 25 CBG wishes to infora the Board that, as of the current availability V its witnesses, a July 25 starting date would appear necessary if the Board continues

~

to intend to hear the Applicant and Staff's cases first, with the assumption that the CBG case would begin approximately the beginning of the third week of hearing. CBG respectfully requests,that the Board,

.before final determination of t e h start ng i date, notify CBG and provide an opportunity for update regarding witness availability.

R c ully tied,

/

Daniel Hirsch President COMMITTEE TO BRIDGE THE GAP dated at Ben Iemond, CA this 7th day of April,1983 l

l l

L -

s _ _ _ _ ,_.

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

'L., -

s Exhibit A U. . N',:0!.E Ae *

• T M 9:.Y h1 )

l . February 16, 1983 '

583 FE0 24 PM 6 37 Mr. Sean Hawley Pacific Northwest p. ,: : C000 MENT i M (Battelle) Laboratory hu.LESTE0/RECEl'.LO P.O. Box 999 i Richland, WA 99352  !

i

!i Re: Testimony for UCLA Proceeding

Dear Mr. Hawley:

I am enclosing several documents for background information to assist I vour understanding of the issues raised concerning NUREG/CR-2079

. '(Analysis of Credible Accidents for Argonaut Reactors 1. The Licensing l* Board has decided that the following questions, raised primarily by Dr. Kaku and B. Norton, but also by Ducont and Warf, should be answered regarding the "Battelle Report:"

1. The validity of using data from Soert and Borax tests given the differences in design between the test reactors and' .,

Argonaut UTRs. -

2. The assertion by Norton that a destructive power excursion occurred at Spe'rt at $3.54 excess reactivity.'

1

3. The assertions that the "Battelle Report" calculations are inaccurate for:

! a. Wigner energy stored in graphite .

'~ b. Graphite combustibility

c. Fuel melt in Soert & Borax - -

• h d.

e.

Increase in reactivity from partial loss of coolant Excursion period 4

f. Amount of possible energy release during excursion period (supercriticality)

g. Metal-water reactions

h. Extrapolation of Spert reactivity coefficient 4

i. ' Fission product release calculations for fuel  ;

handling accident (2.70 . -

f

' ~

1. S07 y 4,,;; aha4, f NO R ADOCK 050001+ar PDR

' ~ ~ ' ..

M s

e, Essentially, what is necessary is .iustification of the conclusions reached in the Battelle Report by explanation, and/or references, at an elementary level. .

I I am also sendino you cooles of the analyses done by Brookhaven and Los Alamos in 1981. l1 Thanks for your assistance. .

Sincerelv, Colleen P. Woodhead Counsel for NRC Staff

Enclosures:

As stated 8

I l

l l -

l

% \

.1

0 ELD :0 ELD  :  :

\0(y...__:.___ ' ___.:.__......___:.______.___:_______.____:.____.....__:__

l :CWood 2ad:ml:SGold rg  :  :

2/

/83 :2/ LS /83 :

'** -m _

.. . . = ._ - - _ - - - - _

. _ . . . . . . . . .w,.... ., a 4

UNITED STATIS OF APERICA NUCI2AR REGUIATORY COPJGSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-142 THE REGENTS OF THE UNIVERSITY

& CALIFORNIA (Proposed Renewal of Facility License) i (UCLA Research Reactor)

I Lf j i DECIARATION OF SERVICE I hereby declare that copies of the attached: CBG OBJECTIONS TO CERTAIN SCHEDLING MATTERS DETAIIRD IN THE BOARD'S MEMWANDUM AND ORva;R OF MARCH Z3, 1963 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage propald, addressed as indicated, on this dates April 7, 1983 .

John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Glenn R. Woods U.S. Nuclear Regulatory Commission Office of General Counsel 390 University Hall Dr. Eamoth 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. Oscar H. Paris Administrative Judge Atomic Safety and Licensing Board t t ttorney U.S. Nuclear Regulatory Commission Gty Hall Washington, D.C. 20555 1685 Main Street .

Chief,' Docketing and Service Section Office of the Secretary Dorothy Thompson U.S. Nuclear Regulatory Commission 6300 Vilshire #1200 Vashington, D.C. 20555 Ies Angeles, CA Counsel for NRC Staff U.S. Nuclear Regulatory Commission

'Vashington, D.C. 20555 attention: Ms. Colleen Woodhead Villiam H. Cormier Office of Administaative Vice Qiancellor University of California ,

405 Hilgard Avenue c4[,

Los Angeles, California 90024 g President COMMITTEE TO BRIDGE THE GAP

.s _ .- , - _ - _ - - - . . . - - . - - _ . . . - ,