ML20079H971

Reply to NRC & Applicant 831230 Pleadings Re Contention Ii.Ucla Ceased Using Reactor in Fashion for Which License Granted & Therefore,Should Not Be Permitted to Receive License.Declaration of Svc Encl

ML20079H971
Person / Time
Site:	05000142
Issue date:	01/16/1984
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8401240153
Download: ML20079H971 (9)

Text

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1 C0!G1ITTEE TO BRIDGE THE GAP January 16, 1984

) 1 1637 Butlec Avenue, Suite 203 00CKETED Los Angeles. California 90025 umc 2

(213) 478-0829 UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSION Q$.) f 0F S E Ui -

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BEFORE THE ATOMIC SAFETY AND LICENSING"B0k$b],Q '

B In the Matter of )

/ ) Docket No. 50-149 THE REGENTS OF THE UNIVERSITY )

8 0F CALIFORNIA )

) (Proposed Renewal 9 ) of Facility License)

(UCLA Research Reactor) 10 11 CBG'S REPLY TO STAFF AND APPLICANT DECEMBER 30 PLEADINGS AS TO CONTENTION II 13 I. Introduction 14 15 In its Memorandum and Order of November 30, 1983, 16 the Board directed the parties to address a narrow legal question 17 it raised as to the applicability of Section 31(a)(4) of the 18 Atomic Energy Act to Contention II in this proceeding.

1,9 By responses dated December 30 all parties responded.

20 The Board's November 30 Order provided the parties an opportunity to respond to the submissions of each other. CBG's reply 21 22 follows.

23 24 II. Discussion 25 The pleadings by Staff and Applicant are in many respects 26 almost identical, almost to repeating of phrases or sentences.

27 Both indicate briefly that they believe Dr. Kalil's business 28 operated out of the UCLA reactor facility to be (" arguably,"

as the Staff repeatedly conditioned its assertions) within ~U 8401240153 840116 d PDR ADOCK 05000142 <

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1 the confines of Section 31(a)(4), but both indicated that the 2 Contention should be dismissed "on other grounds," and then 3 proceeded to 13-argue those other grounds, previously 4 thoroughly argued in motions for summary disposition, which 5 were denied, and motions for reconsideratio'n, which remain 6 pending.

7 CBG objects to the failure of both Staff and UCLA to 8 comply with the Board's directive in briefing the narrow issue 9 raised and once again raising extraneous matters outside the 10 scope of the matters the Board asked to be explored. It is 11 unfair to constantly have to re-argue matters previously 12 decided by the Board and previously briefed. Tc require 13 old issues that have been resolved repeatedly to be 14 relitigated thwarts due process and unnecessarily elongates 15 and delays a proceeding too much delayed already. The Staff 16 and Applicant pleadings should have addressed the Board 17 question and refrained from attempting to relitigate 18 summary disposition. In p;rticular, UCLA's twelve page 19 pleading contains but a few paragraphs at best pertaining 20 to the Board's question.

21 As to the points raised by the parties on the matter 22 requested to be briefed by the Board, the following comments 23 are in order. Staff writes that Dr. Kalil's activities 24 are " arguably" within Section 31(a)(4) because his business 25 "provides information for a wide range of entities for 26 27 28

_3 I various purposes." Research is narrowly defined in Section 11 2 of the acts providing information is so broad as to be far 3 outside.the scope of the definition. A school nutritionist 4 provides infomation, as does a shoe saleman as does an 5 X-ray laboratory, yet none are research. Dr. Kalil, by his 6 own admission at hearing, does no research, except on the very 7 rare occasions when he takes out his thesis and works on it.

8 His 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br /> a week at the Nuclear Energy Lab are spent running 9 a business, providing assaying services. Perhaps R & D 10 was going on years ago when he was a graduate student and 11 developing his equipment and preparing his thesis, but no longer.

12 He now simply runs a business, providing the same ore e.ssaying 13 service over and over again.

14 Mr. Cormier argues that the service he provides is

-15 unique. Were that true, it would still be irrelevant to the 16 question whether the service is research but the record at 17 hearing clearly indicates it is not tnze. Dr. Kalil indicated 18 he had several competitors and other evidence of record indicated 19 GA Technologies provides the same services commercially, at 20 a considerably higher price. The fact that Kalil's clients 21 may be considered to be involved in research--although most 22 are not--is irrelevant to the issue of whether he is doing 23 research, which he said he was not. He said all he is doing 24 is running a business, and the fact that his clients might use 25 his service for research, and others for commercial mining, 26 does not make his activity research. He is merely providing 27 a lab service, the way a film developing lab does. The fact 28

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-4 I that a film developing lab may do work for government agencies.

2 universities, or taco salespeople does not, as accountant Baefsky 3 testified, make the person who sells the film developing services 4 a university or a researcher but remains a commercial film lab.

5 UCLA argues that Dr. Kalil's activities are " socially 6 useful enterprise." But that, of course, has nothin'g to do 7 with whether it is research. Food growers are also engaged in 8 a socially useful enterprise, but they are not researchere.

9 The rest of UCLA's pleading raises extraneous matters.

10 Applicant once again asserts that university reactors are 11 explicitly exempted from having to have Class 103 licenses, 12 whereas the legislative history and the regulatory history both 13 clearly indicate the explicit intent of Congress and the Commission 14 that university reactoirs substantially used for the activities 15 to which the UCLA reactor is put (the examples given in the 16 history are university reactors used substantially for sale 17 of neutron radiography services or sale of radioisotopes on a 18 commercial basis, the former being a direct parallel to the 19 neutron activation services provided to and by Kalil) must 20 be licensed under class 103 UCLA further argues that 21 imposing conditions on its license or requiring licensing under 22 section 103 " serves no commission purpose and results in no 23 public benefit. " However, the issue is what the law and 24 regulations require, and wnether UCLA is using the license 25 for the public purposes for which it had requested the license.

26 The Contention squarely asserts that it is not--the licensed 27' purpose represents a very small fraction of actual use, 28 prohibited by the regulations and the Act.

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2 3 Staff, in its assertion that the contention should be 4 dismissed on grounds other than those the Board requested it 5 brief, makes an interesting argument. Staff claims that even 6 if Kalil's Uranium Wect Company were genuinely involved in 7 research, which is " arguable" at best, it would not be dispositive 8 of the contention, because it would be Uranium West, not 9 the licensce, who would be involved in the research activity.

10 This is surprisingly similar to the argument CBG has been 11 putting forward on this subject the fact that UCLA sells 12 irradiation services (for a fee five times larger than the 13 amount it claims it costs to provide the service) to Uranium 14 West, who might sell its services to a university which is I 15 doing research, makes neither Dr. Kalil, who is once removed 16 from the genuine research activity, nor UCLA, the licensee.

17 who is twice removed, as engaged in research.

18 There was undisputed testimony and documentary evidence

-19 produced at hearing that the UCLA reactor is no longer used 20 for research, that its sole purpose is classroom instruction.

21 and that those instructional uses constitute one to two 22 hours per week of reactor operations, a minor fraction of 23 the reactor use. Further, that the use of the reactor by 24 Uranium West represents many times the use for instruction.

25 The fact that customers of UCLA's customer may be involved 26 in research, or that their customers might be does not make 27 the licensee, as required, engaged primarily in research.

28 (e.g. UCLA selling irradiation services for a fee to Uranium West, who might sell its services to Phillips Petroleum, who might sell its services to the NURE program of DOE, in no way

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1 2 makes UCLA's use of the reactor primarily for sale of irradiation 3 services to the Uranium West Company research. In this we agree with Staff.

4 5 However, Staff then goes on to argue that the Contention 6

sh uld be dismissed on other grounds, those being what UCLA's 7

" purpose" is in having the reactor, even if its actual use is g different. The fact that the primary user of the reactor is g not the licensee but a private ore-assaying company does not 10 resolve the problem of whether UCLA is entitled to the license 11 or not, but makes the matter worse.10CFR 50.80 prohibits transfe: o:

12 a license, or any rights therqander, directly or indirectly.

13 to any person without direct Commission consent. To argue that 14 compliance with the prohibitions on substantial commercial use 15 of a 104 license is not required of UCLA because the person 16 who is doing the primary commercial activity is not the licensee 17 would be to impermissibly transfer, at least indirectly, 3g the license to a party to which the Commission has not granted 10 it and fcr purposes which the Commission has not authorized.

20 In fact that is precisely what the Contention is about.

21 The Commission gave a Class 104 license to UCLA for the requested 22 purposes of research and instruction. Research is now non-existent and instruction a couple of hours a week. The rights to the 23 24 licensee have largely been transferred, without Commission approval, to Uranium West Company. UCLA and Staff argue that 25 26 UCLA's purpose in having the reactor hasn't become commercial, 27 despite the profit from the irradiation sales when measured 28 against what UCLA claims it costs to provide, because it is

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Uranium West that is using the license for commercial purposes, 2

n t UCLA. It is, of course, not purpose but activity that 3

matters, and it is precisely because the primary utilization 4

f the facility has transferred to a private company not the 5

li ensee that the entire subject is an issue.

6 7

III. Conclusion 8

g The requested license is by the Regents of the University f California for instructional and research purposes (the latter 10 jy at the MS and PhD levels). The actual use of the license 12 has largely been discontinued by the Regents and transferred 13 to a private company not the licensee, Uranium West Company.

74 That company, by admission of its owner, is a private firm 15 engaged primarily in assaying ore samples and not in any research, 16 The firm provides a lab service for a fee, a service available 77 elsewhere.

3g The law and regulation make senses failing to enforce them does not make sense. A university that requests a research 79 and education licensee to operate a reactor should use the 20 21 rights bestowed by grant of that class of license primarily for tho se purposes. UCLA has long since ceased using the 22 23 reactor in the fashion for which the license was granted, and 24 has transferred most of its rights under that license to a private company engaged in a commercial enterprise. As Staff 25 26 describes it, the licensee " rents" its reactor to this firm 27 f r use in its business. That firm uses the reactor more than 28 the licensee does, something prohibited by regulation and statute .

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2 The regulation and statute should be enforced. If UCLA no 3 longer needs or uses the reactor for the purposes mandated 4 by the conditions of the kind of license it requests and the 5 primary such utilization is activity of the sort expressly 6 required to not be substantial for university reactors to retain 7 a 104 license (as in the example given in the legislative history 8 of neutron radiography for a fee), then it is not permitted 9 to receive the class cf license to which it is no longer 10 entitled. If the primary utilization of the facility is by 11 a private firm other than the licensee, then an impermissible 12 transfer of rights under the license has taken place.

13 14 Resphetfully submitted, 15 ,

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16 Daniel Hirsch 17 dated January 16, 1984, 18 at Ben Lomond, CA 19 20 21 22 23 24 25 2G 27 28

UNITED STATE 3 0F AMERICA NUCI2AR REGUIATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICDISING BCARD In the Matter of Docket No. 50-142 THE RECENTS OF THE UNIVEIBITY GP CALIFORNIA (Proposed Renewal of Facility License)

(UCIA Research Reactor)

DECIARATION OF SERVICE CBG'S REPLY TO STAFF AND I here g ef g that copies of the attached:

DECD4BER 30 PLEADINGS AS TO CONTENTION II in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, nostage prepaid, addressed as indicated, on this date: January 16,19% .

,( John H. Frye, III, Chairman Christine Helwick Atomic Safety &

• consing Board Glenn R. Woods U.S. Nuclear Reg,~ 4 tory Commission Office of General Counsel 390 University Hall j Dr. Emmoth A. Imebke 2200 University Aventie Admin $atrative 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

1. Glenn O. Bright Administrative Judge Atomic Safety and Licensing Board W Naliboff Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall V==M = tan, 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 Mington, D.C. 20555 6300 Wilshire Blvd., #1200 las Angeles, California 90048 U.S. Nuclear Re6ulatory Commission g, 1, gag ,q Washiwton, D.C. 20555 Ato t JicNing Board Panel attention: Ms. Colleen Woodhead Uhn 'Mulatoiy Commission WaIshingtenfD.C.20555

@ William H. Cormier /

Office of Administ2ative Vice Chancellor [ .-

/

University of California / /

405 NMgard Avenue Los Angeles California 90024 g' O

,1 ,1 31, ,

President COMMITTEE TO BRIDGE THE GAP p vig opms mail

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