ML20082D667

Motion to Strike Proposed Rebuttal Testimony by Util & Nrc. Only Small Portion of Proposed Testimony Qualifies as Genuine,Legitimate Rebuttal.Declaration of Svc Encl

ML20082D667
Person / Time
Site:	05000142
Issue date:	11/16/1983
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8311220499
Download: ML20082D667 (62)

Text

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i COMMITTEE TO BRIDGE THE GAP November 16, 1983

. 1637 Butler Avenue, _ Suite 203 Los Angeles, California 90025 00CKETED USNRC (213) 478-0829 5 iRN 21 Ei:24 UNITED STATES OF AMERICA 0FriCE OF SECETMtv NUCLEAR REGULATORY COMMISSION 00CMEf f Efr'ftt BEFORE TK ATOMIC SAFETY AND LICENSING BOARD ,

in the Matter of )

)

THE REGENTS OF THE UNIVERSITY ) Docket No. 50-142 0F CAllFORNIA )

) (Proposed Renewal of (UCLA Research Reactor) ) Faci 11ty License)

)

CBG'S OBJECT 10!1S TO PROPOSED " REBUTTAL" TESTIMONY BY APPLICANT AND STAFF

l. Introduction l

Near the conclusion of what was to have been the closing session

.of the inherent safety hearings in this proceeding, counsel for Applicant requested a continuance to prepare rebuttal to assertedly new information contained in CBG's rebuttal, certain narrow areas specified by Applicant as requi ring addi tional time for Applicant to analyze. Af ter consideration of CBG's objections to such a delay, the Board granted the continuance for preparation of rebuttal on the matters identified by Applicant and in keeping with the Board's previous rules set down for proper scope of rebut _tal.

(TR 3112-3.)

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Those rules regarding proper scope of rebuttal were set down first in the Board's April 7,1983, Memorandum and Order:

"CBG's second. request also concerns rebuttal testimony, 2

and apparently reflects CBG's fear that UCLA and Staff 4

. may reserve for rebuttal some portion of their responses to CBG's positions as set otit in its declarations.

Staff specifically disclaims any such intent. All parties should understand that such a practice is beyond the proper scope of rebuttal evidence."

(emphasisadded)

'On September 14, CBG wrote the Board requesting that if CBG was to file rebuttal outlines, the other parties also be required to do so. CBG indicated concern that the parties may " attempt to go beyond the restrictions

! the Board has set on the scope of rebuttal with regards to CBG's direct case."

Chairman Frye, in a letter dated September 22, 1983, reiterated the : Board's rules on the matter:

"As' pointed out in your letter, in the course of the conference call of September 1, the Board rei terated i ts di rection in i ts Aprli 7 Order 'that _ rebuttal testimony would tue limi ted to new material ~not filed by CBG In' January. We have not changed our position on this matter. The Board has no intention of allowing

' rebuttal that goes beyond the scope of the guidelines we have set forth."

(emphasis.added)

}

Furthermore, the Board, in reluctantly granting UCLA the continuance and not closing the hearing as intended in October, has indicated its displeasure at the delay occasioned and stated that if further delays make close of the hearing record by December _10 Impossible, it wou'Id entertain motions to curtail activitics at the facility.

TR 3113.

Applicant has, however, serve'd on November 8 one hundred and forty pages of so-called rebuttal, the vast majority of which goes far outside the scope it had indicated when it requested the a)ntinuance or the' rules set down by the Board. To put that mass of material in perspective, it is forty percent longer than the Applicant's enti re direct case.

'The Safety' Analysis Report in the Application that is being IItigated is itself only thirteen pages long. This is in contrast to the normal procedure in such proceedings, where the Application's Safety Analysis is very extensive, the direct testimony more limited, and rebuttal qui te narrow, " cleaning up" a few " loose ends."

Applicant has donc precisely what the Board has repeatedly said i t wouldn't allow.

-The vast bulk of the material is response ei ther to CBG's January declarations, expressly forbidden by the Board, or plain expansion or correction of Applicant's own previous testimony, in fact, much of the material is rebuttal not of CBG's evidence, but of testimony and evidence of the Applicant itself. Extremely little fits within the restrictions set by the Board.

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-4 Applicant's blatant disregard for the Board's directions creates major dilemmas, particularly given the time f rame of a hearing set to begin anew in less than two weeks. Remedies are difficult to t envision, given that time pressure, that do not , either way, reward Applicant's behavior in this regard.

CBG's objections to each piece of submitted testimony and exhibits are enclosed, as well as brief legal argument. In what follows below, the current situation is placed in context of the history of the case, in part because only one Member of the Board, Judge Luebke, has been on the Board throughout the case.

11. Backg round in August, 1979, CBG requested of the flRC Staff that it take certain corrective measures regcrding apparent safety deficiencies at the UCLA reactor. There was no satisfactoryresponse, so when UCLA applied for license renewal in late February,1980, CBG peti tioned for leave to intervene.

UCLA's application for license renewal submitted in 1980 contained as i ts enti re Safety Analysis two seven-page attachments copied f rom i ts 1960 Hazards Analysis, the fi rst one dealing with why the former .67, delta k/k limi t was supposedly safe, the second wi th what magni tude doses could result f rom an accident when the reactor was at i ts former 10 lu power limi t.

CBG's contentions pointed out that the calculations in the fi rst attachment Indicated fuel melting could occur at or below the current licensed excess reactivi ty limi t and that the second attachment indicated doses of 1800 Rem could result wi th an inventory only 1/10th the current one. Uith these and other contentions admi tted, discovery was opened, and the proceedings began

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to drag out. Because it was to the Applicant's advantage to delay as long as possible--it could continue to run so long as the Board never reached a decision on the central issues--two months scheduled for discovery took two years and half a dozen Orders compelling truthful answers by Applicant, release of information, and so on. Just as discovery was closing, Applicant threw out the Safety Analysis Report in its Application and replaced it with studies performed by Staff and paid for by the NRC. CBG had been connived into two years of discovery on an Application UCLA now tries to disavow; had it tried for discovery on the new Application, there would have been no chance of ever getting to hearing and getting the mat ters before the Board.

So discovery was closed and hearing was tentatively set--to begin a year ago.

However, despite strong statements by the Board that parties should not move for summary disposition on any but those few narrow matters where they clearly were no facts in dispute (warnings against " shotgun" approaches to summary disposition, as Judge Paris put i t), Staff and Applicant submi tted motions for summary disposition on cach and every contention and subpart, some twenty contentions and over a hundred subparts. CBG complained that these motions were filed for the purpose of delay, but was requi red nonetheless in a period of a couple of months to file a couple dozen declarations that amounted to profiling CBG's direct case on every contention months and months before the other parties filed thei rs. The hearing was then set for licy on the inherent safety matters, I

but Staff said Mr. Wohl and Ms. HItchell couldn't be available until July, so the hearing was postponed. Although the other parties had had CBG's di rect case since January, they insisted they could only prefile their testimony a few weeks prior to the hearing. The Board ruled, however, that any response to CBG's di rect case, which was contained in those declarations submi tted in January, had to be included in the direct testimony profiled by Applicant and Staff in ' June.

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1 It would be useful for the Board to go.back to those summary

. disposition declarations submitted by CBG, particularly those by Professor Kaku, Mr. = Norton, Professor Warf, Mr. duPont, Dr. Beyea, Mr. Af tergood, Dr. Taylor, and Mr.' Pulido. A quick review of those declarations and the di rect submi tted by CBG will remind the Board how the di rect testimnn'y was almost entirely put together f rom the declarations the experts had sub-mitted nearly a year ago.

Af ter the delay to July, the hearings were supposed to end then.

But Staff announced that its situation had changed and Mr. Vohl and Ms. Mitchell

- would not be available for at least two months thereaf ter due to thei r need to spend several staff weeks in preparation of thei r testimony. At the July hearings counsel for Staff announced that Ms. Mitchell would be unavailable and that Mr. Wohl's testimony would be largely an administrative stamp of approval for the lab studies previously submi tted. Nonetheless, we had to wait until October for the hearing to reconvene to accomodate Mr. Wohl's schedule and need for so much time to prepare his testimony.

At the end of the October session UCLA, claiming the need to consider "new" information about SPERT 11 and the deflector plate facing a blank wall -(which i ts own wi tness, not CBG, had revealed), sought and received a continuance. (I t is interesting :o note that there is only one reference to SPERT ll In the enti re " rebut tal" testimony.)

Ill. Discussion What has been submi tted by UCLA (and Staf f) has li ttle to do with any new material . . Instead, it is precisely the sort of testimony

-7 the Board has said repeatedly would not be allowed, since it goes far outside the Icgitimate scope of rebuttal. (Specific objections are detailed herewith, panel by panel.)

Ona of the dilemmas faced by CBG is that it can't begin to know what part of the 140 pages it will have to cross-examine on and respond to until right before the hearing begins, and will thus have little time, for exampic, to check references (most of which aren't even identified in the testimony) .

There is another particularly disturbing dilemma. Applicant failed to file in its direct testimony the foundational calculations for Dr. Peariman's Wigner energy conclusion. I t further failed to file any material regarding Mr. Ostrander's supposed Monte Carlo calculations of how much neutron activity gets out of the fuel box. Thus CBG had na way to review the material, prepare cross-examination or other response. But through persistent pushing, UCLA was able to get onto the record the conclusions without the foundational calculations. CBG couldn't challenge the conclusion, because there was no foundation of record due to UCLA having failed to file on time, it is the best of all worlds for the Applicant-- the conclusion in the record without scrutiny because the foundational calculations were not admitted even though the conclusion was. Should the Board now admit the calculations (which UCLA has resubmi tted in i ts " rebuttal"), UCLA's failure to file on time as required is rewarded. Should the Board not admit the calculations, CBG has no opportunity to demonstrate-- now that i t has seen the somewhat more detailed calculations-- the fundamental and

o extraordinary errors ' hey contain, in either case, disregard of Board di rection by Ap. is rewarded.

Likewise, if the hearing is delayed because of the massive submission and problems created, delay works to UCLA's advantage (unless there truly is a curtallment of reactor operations). If there is no delay, CBG has a humanly impossible task to prepare cross-examination and response on material it won't even know is not struck until the hearing is about to start.

if the Board permits in any more than a very small f raction of the submitted material, particularly material that is clearly not rebuttal but new direct, CBG may need the opportunity to demonstrate the errors therein.

(Even in the few days we have had so far to review the profferred material, our technical peopic have been able to identify,In each important particular, fundamental errors that negate the asserted conclusions.) The refusal by Applicant (and by Staff) to comply with the Board's restrictions creates large probicos of management of the proceedings as well as equity.

IV. Conclusion The vast majority of the proposed rebuttal by Staff and Applicant is not rebuttal at all, it either responds to old material raised in CBG's January declarations, which was to have been responded to in the parties' direct case; or reb'uts Staff or Applicant's own case; or merely expands or repeats the direct case; or is mare appropriate as proposed findings of fact by counhel than rebuttal by experts. Very li ttle of the proposed testimony is genuine, legitimate rebuttal. CBG respectfully moves that the objected-to

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material be struck. (CBG notes that in the case of the Pearlman and Ostrander calculations, previously struck but the conclusions permitted in, striking the foundational calculations once again does not of itself repair CBG's

. injury ano 'urther relief, once th'e Board has ruled on the motions to strike,

.. may be necessary.)

As the hearing as currently scheduled is close approaching, CBG. respectfully requests expedited response and decision on this motion.

The effects of the mass of material submitted by Applicant and Staff are to be discussed, we understand, in a conference call schedeled for November 21 Resecfully,up ed,

. cc2 D[anlei Hirsch President Com:nittee to Bridge the Gap dated at Los Angeles, California this 16th day of November,1983 I

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_ REBUTTAL TESTIMONY THAT IS NOT DIRECTLY RESPONSIVE TO THE OPPOSING PARTY'S TESTIMONY OR THAT SHOULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF IS NOT ADMISSIBLE Federal case law is clear concerning the scope of rebuttal testimony: testimony that could have been introduced in the proponent party's case-in-chief or testimony that is not based on the opposing party's testimony is not admissible.

These are two independent grounds, either of which is suffi-cient to exclude profferred rebuttal testimony.

In the absence of NRC precedent, or guidance on matters of evidence and procedure, federal case law is to be looked to. Intervenor CBG found no published NRC precedent or guidance on the appropriate scope of rebuttal testimony.

Accordingly, set forth below is applicable federal case law on the subject of the propriety of using rebuttal testimony. ,

Rule 611(a) of the Federal Rules of Evidence directs trial courts to exercise control over the mode and order of i questioning witnesses and presenting evidence. Based on this f au2hority, trial courts exclude rebuttal testimony that is l l

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inappcopriate. l The seminal case regarding the propriety of rebuttal testinony is Skogen v. Dow Chemical Co. , 375 F.2d 692 (8th Cir. 1967), in which the appellate court concluded that the ,

trial court properly excluded on rebuttal the testimony of a witness that should have been offered in the plaintiff's case-in-chief. "Normally," said the court, " parties are expected to present all of their evidence in their case-in-chief." 375 F.2d at 705.

. _ , . , . , . _ , _ . . _ . . - . , . , _ . - . . _ , . - . . , _ , .____.,y.,____y,_,.. ,,m _ _ , c__,._ _ _ ,.,.

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To the same effect is Russo v. Peikes, 71 F.R.D.110 (1976), where the court prohibited a plaintiff's expert from testifying on rebuttal, despite the significance of the expert's testimony to the case. The court based its exclusion of the testimony on two independent grounds: (1) the proffered rebuttal raises new issues rather than being responsive to the opposing party's testimony; and (2) evidence sought to be introduced relates to issues that were known to the plaintiff at the time of his case-in-chief.

As to the first point, the court concluded that rebuttal testimony proffered cannot be introduced because it exceeded the scope of the opposing party's testimony:

"We do not quarrel with plaintif f's characterization of Dr. Aronson's testi-mony as non-cumulative and important to his position. However, in this case, the i

normal rule would only permit rebuttal testimony as to subordinate evidential facts offered by defendant or facts offered by defendant which discredited plaintiff's witnesses on any issue. 6 Wigmore, Evidence $ 1873 at 510, 511 (3d ed. 1940) [hereinaf ter cited as Wigmore]

Under the circumstances presented here, we do not believe that the substance of Dr. Aronson's proposed testimony can be classified as a matter properly not evidential until the rebuttal, so the plaintiff would have the right to put it in at that time." Wigmore, Section 1873, at 517."

71 F.R.D. at 112-113 (Footnote omitted. Emphasis in origi-nal. )

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e The rebuttal testimony is properly excluded, the court also concludes, because it could have been introduced in i the case-in-chief, and to admit it now would deprive the opposing party of an adequate opportunity to respond to the testimony.

"Whether the testimony is viewed as an offer of new facts which ought to have been put in during the case-in-chief, or a i

repetition by a new witness of former

! facts already once evidenced, the custom-ary rule equally forbids it. Wigmore, Section 1873, at 516.

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We believe tha* several factors

! weigh in favor of our decision. First, the tissue slides which form the basis for Dr. Aronson's proposed testimony have l

been in existence shortly after the death of Elizabeth Russo. . . They have been j available for inspection by plaintiff's experts since the time of the filing of the complaints, almost three years prior

! to the trial. The Court was not presented with an offer of new factual evidence discovered during the trial, but rather with a new interpretation of physical evidence which had always existed during the pendency of these lawsuits.

Second, the fact that the autopsy findings were in issue was clearly known to the plaintiff when he presented his case in chief. Even if a pathologist's testimony explaining the significance of what appears on the tissue slides was not 3

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a necessary element of plaintiff's prima facie case, it would have been evidence

' corroborative of plaintiff's theory and both relevant and properly presented as a part of the case in chief. . . In light of this knowledge, the Court believes that the testimony of a pathologist, if it were to be offered by plaintiff at all, should have been presented in the case-in-chief. See Skogen v. Dow Chemical Co. ,

375 F.2d 692, 705-706 (8th Cir. 1967).

Finally, the question of unfair surprise to defendant is a factor."

71 F.R.D. at 113 (emphasis in original, footnotes omitted) .

The Dow court suggests that there may be a circum-stance when rebuttal testimony will be permitted even though it should have been presented in the case-in-chief. It does

not, however, discuss the circumstances under which '.c will be potmitted. However, Dow does state that if it allowed the introduction of such rebuttal, the opposing party would have the right to introduce additional refuting evidence. 376 F.2d at 706. Other cases discuss when rebuttal testimony is l allowed that should aave been raised in the case-in-chief. In United States v. E. I. Dupont deNemours and Co., 126 F.Supp.

27 (N . D . Ill. 1954), the court concluded that rebuttal l

evidence that should have been raised in the case-in-chief was

- excludable if prejudice would result to the opposing party. A party attempted to introduce in rebuttal a letter drafted by a person testifying for the opposing party who was subsequently

, unavailable to explain the letter. The court determined that the attempt to proffer the letter on rebuttal deprived the opposing party of its right to respond because the letter's author is now unavailable. That opportunity to explain should have been allowed and to admit the letter into evidence with-I 4 L

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out such an opportunity ' would have been prejudicial to the defendant. 126 F.Supp. at 33.

'IHE LAW OF THE CASE ESTABLISHED THUS FAR IN THIS PROCEEDING IS CONSISTENT WITH FEDERAL PRACTICE: REBUTTAL TCSTIMONY THAT SHOULD HAVE BEEN PRESENTED IN THE APPLICANT'S CASE-IN-CHIEF OR THAT IS NOT DIRECTLY RESPONSIVE TO CBG'S TESTIMONY, IS NOT ADMISSIBLE 1

The Licensing Board has, consistent with federal civil practice, establish the proper scope of rebuttal testi-mony is this case. The Board has stated clearly that rebuttal testimony is inappropriate if it either (1) should have been  !

raised in the case-in-chief, or (2) exceeds the scope of CBG's testimony. In the Board's order of April 7,1983, in response to CBG's motion regarding scheduling, the Board stated:

"CBG's second request also concerns rebuttal testimony and apparently reflects CBG's fears that UCLA and Staff may reserve for rebuttal some portion of i their responses to CBG's positions as set out in its declaration. All parties should understand that such a practice is beyond the proper scope of rebuttal evidence. (Page 3) . "

o Subsequent to that in a September 1 conference call between the Board and all of the parties, the Board made clear that it would not permit new material in rebuttal testimony.

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Finally, in a September 22, 1983 letter in response to CBG's request that rebuttal outlines be filed, Chairman Frye stated that because of strict guidelines to be set forth for scope of rebuttal testimony, rebuttal outlines would be l unnecessary: l l

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,, i "As pointed out in your letter, in

, the course of the conference call of I

September 1, the Board reiterated its direction in its April 7 Order that rebuttal testimony would be limited to new material not filed by CBG in January.

We have not changed our position on this matter. The Board has no intention of allowing rebuttal that goes beyond the scope of the guidelines that we have set forth."

As set forth in below, extensive portions of the Applicant's rebuttal testimony and several paragraphs of the staff's testimony are inadmissible as grossly exceeding the legal standards for rebuttal testimony set forth both by federal case law and by the licensing board.

REBUTTAL TESTIMONY IS LIMITED TO THOSE AREAS IDENTIFIED BY THE APPLICANT AT THE CLOSE OF CBG'S TESTIMONY The Licensing Board, at the conclusion of CBG's testimony, limited the University's rebuttal testimony to those areas identified by the University at the hearing (Tr.

3035-3039] as those areas in which it would need additional rebuttal testimony:

Mr. Bay: Could you be more explicit as to the scope of the rebuttal testimony that will be presented on November 297 Is that any and all rebuttal testimony they may have, or limited to the issue areas and subject areas that Mr. Cormier has iden-

tified this morning.

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Judge Frye: I think largely limited to the subject matter Mr. Cormier has iden-tified. And in light of the rules we have set for presentation of rebuttal earlier, does that create a problem?

Mr. Bay: No.

Tr. 3113.

As will be detailed below, some of the University's testimony greatly exceeds the list of subjects set forth by the University that it would offer rebuttal testimony on.

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as . . : .. *

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, Uf!!TED STATES OF AMERICA f!UCLEAR REGULATORY COMMISSION ATOMIC S#cETY AND LICENSING BOARD Before Administrative Judges:

John H Frye, III, Chairman Dr. Emmeth A. Luebke

Dr. Oscar H. Paris ,

In the flatter of Docket No. 50-142 OL

) (Proposed Renewal of THE REGENTS OF THE. UNIVERSITY.-) Facility License) 0F CALIFORNIA, )

, )

- (UCLA Research Reactor) )

) April 7, 1983 i

MEMORANDUM AND ORDER, (Ruling on CBG's Motion Regarding Scf.eduling) 5 '

On March 15, 1983, CBG-filed a " Memorandum and Motion Regarding Hearing Scheduling Natters." In this pleading, CBG requests that the Board'take the following actions:

1. Uncertainty regarding the number of UCLA's witnesses (apparently more than two)' requires that the Bnard begin the hearing the week of either July 18 or 25 rather than August 1;

2. That Staff and UCLA ' file their prepared testinony at least .

60 days in advance of hearing and that that testimony include rStaff's and UCLA's rebuttal of CBG's case as set forth in CBG's declarations-filed in opposition to summary disposition;

3. Schedule hearings on Contentions XIII and II for May and hearings on Contentions VI and XV for the Fall; and l

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detail as possible be provided. At a minimum, the topics to be addressed by the witness must be indicated.

As indicated in our Prehearing Conference Memorandum and Order, these witness lists are to be final. We will look with disfavor on any request to add witnesses to a list after April 20.

CBG's second request also concerns rebuttal testimony, and apparently reflects CBG's fear that UCLA and Staff may reserve for rebuttal some portion'of their responses to CBG's positions as set out in its declarations. Staff specifically disclaims any such intent. All parties should understand that such a practice is beyond the proper scope of rebuttal evidence.

3. The third request asks that a hearing schedule be set now for the Fall to hear testitony on Contentions VI and XV. These Contentions deal with normal emissions. UCLA takes the position that.it is inappropriate to schedule hearings on these Contentions pricr to resolution of the pending motions for summary disposition. Staffhasi not responded. While the motions for summary disposition on Contention XV have been at least partially dealt with, the Board concurs in UCLA's position to the extent that it wishes to resnive the cutstanding motions for summary disposition prior to scheduling further hearings. This will permit the establishment of ferther hearing schedules on a more rational basis than setting issues down for hearing piecemeal.

CBG also requests that hearings on Contentiens II and XIII be scheduled for f<ay. Contention XIII is the subject of a separate CBG

m psUh g 4% UNITED STATES

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, NUCLEAR REGULATORY COMMISSION e ATOMIC SAFETY AND LICENstNG BOARD PANEL 00LKETEP

$, j8 WASHINGTON, D.C.'20555 M EU September 22, 1983

'83 SEP 22 Pl2:42 CFilLE 2 hi,:.; .

00CXEilNG & SEFv&

. BRANCH Mr. Daniel Hirsch Comittee to' Bridge' the Gap c/o Quaker Center P.O. Box 1186 SERVED SEP 291W Ben Lomand, CA 95005 Re: THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (UCLA Research Reactor) - Docket No. 50-142 OL (Proposed. Renewal of Facilit;y License)

Dear Mr. Hirsch:

This letter is in response to your request of September 14, 1983,.which requested that the' parties file rebuttal outlines.by September 26 if they plan to prese.nt rebuttal.on new material in CBG's direct case.

CBG's concern is that the parties may " attempt to go beyond the restrictions. the Board..has set on the scope bf rebuttal with regards

. to CBG's direct case."

' As pointed out in your letter, in tha course.of the. conference call of September 1, the Board reitefat&d its. direction in its April 7 Order that rebuttal testimony.would be limited to new material not filed by CBE in.JanuaryJ We hava.not changed our position on this matter. The Board has. no intention.of allowing rebuttal that goes beyond the' scope of the guidelines that we have set forth. For this reason, it is unnecessary to require rebuttal outlines.

Sincerely,

~

Joh Fr) e, III, Chairman ADMI ISTR/ TIVE JUDGE cc: Docketing and Service Branch (for Service)

i OBJECTIONS TO' STAFF TESTIMONY OF HAROLD BERNARD AND EARL MARKEE Abstract CBG's Panel IV rebuttal, which Staff claims i t is rebutting, dealt primarily wi th two narrow issues: effect of intermi ttent operation and of subsequent shutdown on CBG's previous dose and dispersion estimates.

Stoff, in the guise of responding to CBG's rebuttal, instead tries to challenge the original dose and dispersion estimates included in CBG's January declarations and subsequent di rect testinony.

Furthermore, Staff attempts to further rebut its own consultant's .

study on fission product behavior in plate fuel during fuel handling accidents, a matter outside both Panel IV (dispersion) and proper rebuttal. Lastly, Staff tries to argue about reducing dose estimates based on the Ilkelihood of extremely rapid evacuation, a matter not addressed in CBG's rebuttal and related to procedural responses (e.g. emergency plan) which are

! subject of other contentions deferred pending resolution of the inherent safety issues.

Discussion On the last day of the previous session of hearings, when the Board was discussing Applicant's request for a continuance so it could have more time to prepare rebuttal, Staff rei terated that i t was not going to be submitting aggy rebuttal. (TR 3040) .

On November 7,1983, Staff served copies of proposed testimony which it claimed was "in rebuttal to the CBG Panel IV rebuttal testimony." l l A review of that testimony reveals that the bulk of it is in no way genuine rebuttal but rather reiteration, expansion, and addition to Staff's previous direct, unrelated to new material in CBG's Panel IV rebuttal.

Mr. Bernard and Mr. Markee state in A.2. of thei r proposed testimony that the purpose of thei r testimony is to respond to "the dose calculations and dispersion models contained in CBG Panel IV rebuttal testimony." What they are really doing, however, is responding l

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OBJECTIONS TO STAFF TESTIMONY /2 to the dose calculations and dispersion models included in CBG's di rect testimony, which had come directly from CBG's January summary disposition declarations, matters the Board has repeatedly ruled are not proper

- matters for rebuttal testimony. see explicit pledge by Staff not to include in rebuttal . testimony response to matters raised in the January declarations, memortalized in April 7,1983, Memorandum and order, p. 3:

"CBG's second request also concerns rebuttal testimony, and apparently reflects CBG's fear that UCLA and Staff may reserve for rebuttal some portion of thei r responses to CBG's positions as set out in its declarations.

Staff specifically disclains any such intent. All parties should understand that such a practice is beyond the proper scope of rebuttal evidence.

(emphasis added)

Staff had its opportunity to criticize the dose calculations and dispersion models employed by CBG witnesses.

CBG's Panel IV rebuttal, which Staff claims it is responding to, contained no dispersion calculations whatsoever, it contained no new dose calculations at all, except in two narrow areas: (1) what is the effect of not assumina eaullibrium Inventory (365 days of full operation),

and (2) what is the effect of assumino a shutdown period orlor to the accident occu rring1 The calculations and tables included in the CBG rebuttal were extremely simple: repeating CBG's previous calculations for equilibrium, non-shutdown condi tions, and showing that even wi th assuming intermi ttent running and/or shutdown, unacceptable doses still result.

The bulk of the proposed Staff " rebuttal" testimony deals with neither narrow matter raised in CBG's Panel IV rebuttal, but instead respond's to CBG's initial dose and dispersion calculations contained in its di rect testimony and taken f rom the January declarations.

OBJECTIONS TO STAFF TESTIMONY /3 o

In particular, Staff attempts, in the guise ~ of rebuttal, to respond once again to CBG's estimates for a fuel handling accident with an equilibrium inventory, estimates which they have had in hand since January.

- Furthermore, Staff tries to sneak into i ts testimony, which l

supposedly represents rebuttal on dispersion calculations, material i

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once again attacking their own consultant's analysis of fuel behavior in l l

a crushing situation. This is both outside the scope of Penei IV direct and rebuttal; in fact, all it is is rebuttal to Staff's own study, certainly outside the scope of genuine rebuttal at this stage.

Specific Objections

o. 3. beginning with last sentence in first new paragraph and including the full next paragraph. This material is non-responsive to the question asked, and outside the scope of the equilibrium issue addressed by CBG Panel IV rebuttal. The question asks for a response to CBG's assertion that assumption of equilibrium inventory is not overly conservative, given the half-lives involved, in the midst of dealing with that issue, extraneous material, unrelated to the equilibrium inver. tory issue, is added. There is nothing new in the CBG Panel IV rebuttal on this issue; it amounts essentially to rebuttal of Staff's own study's assumptions about the nature of the fuel in a crushing accident, not dispersion; and is non-responsive to the question asked. Furthermore, CBG objects to the assertion in the second-to-last sentence en the page for other reasons. Once again the opposing parties are attempting to get in a conclusion, without supporting basis, so that CBG has no opportunity to check the references and see whether

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they indeed support the asserted conn'usion. Statements like " Recent experiments indicate..." should not be tolerated unless those experiments are Identified. In sum, none of this material relates to Panel IV rebuttal,

- _ , m . - _ . .

OBJECTIONS TO STAFF TESTIMONY /4' nor to the question posed, and none of it could not have been included In the di rect, if it is rebuttal at all, it is rebuttal to old material sponsored by Staff itself, far outside the legitimate scope of rebuttal testimony.

g&A42 The answer is non-responsive to the question, goes far beyond the issue of_ the propriety of assuming the accident occurs af ter a long shutdown, and is cumulative of Staff's di rect. Mr. Hawley's testimony is in the record, and need not be repeated by other witnesses; the passage is

, perhaps appropriate for findings of fact by Staff counsel but does not represent legitimate rebuttal testimony. Once again the Sts.ff is attempting to rebut' thei r own study, which assumed a certain release f raction in a fuel-handling accident. All CBG's di rect- did was calculate the correct dose fran the release assumed by Staff; and all CBG's rebuttal did was calculate what reduction in dose intermittent operation and shutdown would have on that dose. To attempt to re-argue whether thei r own study's rele se

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- f raction was right is not legitimate rebuttal.

AS. fi rst four sentences. Here Staff challenges both CBG's equilibrium l dose estimate for a fuel handling accident and Sat of its own Battelle report, neither of which are new items. The 43 Rem estimate comes f rom the Battelle study (p. 48), which the testimony attempts to rebut by claiming E the Staff study made erroneous assumptions as' to fissJcn product behavior in the eutectic, neither new nor In the scope of dispersion matters.

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

-0BJECTIONS TO STAFF TESTIMONY /5 .

Staff's dispute is not with CBG's Panel IV rebuttal as to effect of shutdown and non-equilibrium conditions, as asked in the question, but with the Staff's own study's release fraction estimate and CBG's January calculations as to the subsequent dose. All CBG's rebuttal did was show the effect on its initial calculations of shutdown and intermittent running; Staff's response here is disagreement with the original calculations f rom January and its own study, neither proper grounds for rebuttal.

p. 6. line 6, sentence beginning,"However..." through the end of the paragraph, plus last line of last paragraph. CBG had asserted that Mr. Bernard had miscalculated the doses as to iodine decay and room volume. Mr. Bernard's

" rebuttal" is to admit he miscalculated these matters. He then adds extraneous material, unresponsive to the question (which deals solely with the decay and volume issues), arguing once again about what he thinks is wrong with other, unrelated aspects of the Battelle study about fuel plate response (a matter not even addressed in the CBG Panel IV rebuttal).

And then- he adds a new matter, asserting that a procedural safety feature, an emergency plan the subject of contentions deferred, would reduce doses because evacuation would occur within five minutes. This hearing is to determine inherent safety, without taking credit for engineered features or following proper procedures; those procedures are the subject of contentions deferred; to deal with them now would requi re addressing the adequacy of those procedures and the likelihood of their being followed properly and the speed with which they might be followed; and they are far outside the scope of rebuttal . The issue of evacuation was not mentioned by C8G Panel IV, and is unresponsive to the issue of whether Mr. Bernard erred in his 1-131 decay and room volume estimates in his calculations.

4

4 OBJECTIONS TO S TAFF TESTiHON"/6 Q&A7 . Legal argument. The question misstates CBG's assertion, which

challenged Mr._ Bernard's assertions that his dose estimates are below 10 CFR 20 limits for unrestricted areas, poir.t!ng out that he was comparing doses in unrestricted areas with limits for workers in restricted areas. Second to last sentence in addition again raises the evacuation issue, objected to above.

A9. all but fi rst sentence. The chart in question takes CBG's previous estimates for doses due to a 43 curie release (the amount assumed at page 48 of the Battelle study) of approximately 10,000 Rem thyroid and shows the effect on CBG's previous estimates if one assumed non-equilibrium operating conditions or shutdown. The only new material not included in the di rect or January declarations is the calculation of these intermitten t running / shutdown effects. The answer does not challenge those calculatlans, but rather takes issue with CBG's estimates of approximately 10,000 Rem to the thyroid f rom the 43 curie release, which Staff clains to be 250 times too high; hov ever, that estimate is f rom the di rect, not the rebuttal, and is essentially that of the January declarations . Once again, Staff, In the guise of responding to CBG's tables in the rebuttal, responds not to the narrow, new meterial included in them but to the old naterial which they should have responded to be' ore.

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• The January declarations estimated thyroid doses of 9020 Rem 1 meter from the reactor room wall, Indicating doses would be even higher at the wall i tself.

The direct testimony flied in June merely repeated that calculation, and

- indicated the wall dose would be about 10,825. Staff does not take issue with the calculation of the effect of moving that one meter, but argues with the order of magnitude of the initial calculation.

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OBJECTIONS TO STAFF TESTIMONY /7 A10. Same Objection. The testimony doesn' t take issue with the dose reduction factor f rom equilibrium inventory to a single 20 hou r run--

the subject of the CBG rebuttal and the table--but rather with the initial calculations from the direct of the dose at equilibrium, matters included in the January declarations. In particular, the testimony takes issue with CBG's placement of the 43 Rem dose at 100-200 meters downwind, a matter addressed in the di rect and January declarations (Af tergood declaration, f 4,8-12) . Answer is not responding to CBG's rebuttal but to old mater.al in the declarations.

All. Same objection. CBG's direct and the declarations f rom which it cane estimated doses of approximately 10,000 rem to the thyroid per fuel bundle damaged, and indicated core crushing incidents or earthquakes would produce a multiple of that dose, depending upon the number of bundles damaged. This same point is made in the Staff's Battelle study (p. 26) .

Staff takes issue, not with the factors used in estimating the number l

of bundles damaged and thus the size of the multiple factor, but rather once again the initial dose estimate per damaged bundle, a matter in i

the record since January. (see Af tergood declaration; Kaku declaration P66) .

. Al2-14 Cumulative and/or hearsay. The Sagendorf study has been subject of much dispute in this hearing. We have already had testimony, over CBG objection, of what someone told Mr. Wohl that he thought Sagendorf

)

meant as to how his study could be appropriately used. We have also had l

testimony that Sagendorf himself said such uses would not be appropriate.

I Now we have Mr. Markee telling us what he thinks Sagendorf means by his study. Dr. Sagendorf is an NRC contractor; if Staff wishes to rely upon

OBJECTION TO STAFF TESTIMONY /8 that study, the proper and intended use of which is subject to dispute, t it Is not probative evidence to put in Mr. Mark'ee's interpreta' tion of what Dr. -Sagendorf meant rather than Dr. Sagendorf himself. The record is far too filled with such hearsay already, and CBG is prejudiced because i t is obviously impossible to cross-examine Mr. Markee on what Dr. Sagendorf Intends.

qsA15. Not rebuttal. The January declarations made clear CBG was using Reg Guide 1.145 (see Af tergood and Beyea declarations), and that the Reg Guide stops at 100 meters.because power reactors do not have exclusion zones. The rebuttal makes clear that building wake and meander are considered in Reg Guide 1.145, and the January declarations (Af tergood, Table I) indicate essentially the same 4/q at 100 meters from Reg. Guide 1.145 as Mr. Markee says he has calculated. The questionand answer

arc neither rebuttal nor response to new material, q&A16 Cumulative, overbroad, outside scope of rebuttal. As indicated l above, the majority of the staff testimony responds not to dose calculations and dispersion assumptions in CBG's rebuttal, but in its January declarations and di rect. Such " summary" statements of sweeping scope go far beyond

proper rebuttal; the specific objections to CBG's rebuttal, if not struck, speak for themselves.

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OBJECTIONS TO STAFF TESTIMONY /9 The Exhibits Sagendorf study -- Because of the dispute as to how Sagendorf intended his study to be used, admission of the study without Sagendorf to sponsor it and provide CBG an opportunity to cross-examine on it would be p rejudicial . Although hearsay can be permi tted in some settings, in this situation with such dispute as to Sagendorf's intent and meaning it would result in admission of material the reliability and relevance of which to the UCLA reactor has not been demonstrated. The only person who can do so is Dr. Sagendorf, and he is the only person who can testify thereon.

Hosker article-- Similar hearsay objection, but more importantly, it is a long article with no indication of what part of it the witnesses rely upon. , except as support for the fi rst sentence in A13. If that is the sole part of the article relied upon, the footnote to the article is sufficient, if other parts of the article are to be relied upon, then those should be identified; otherwise CBG is not on notice of what is relied upon in the article and very long cross-examination and potential response may be necessary to deal with various assertions in the article.

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OBJECTIONS TO APPLICANT'S " REBUTTAL TO CBG'S TESTIMONY ON OlSPERSION" The entire proposed testimony-is response to CBG's dispersion material in its original January declarations. None of the testimony is legitimate rebuttal. CBG objects to the enti re testimony on that basis, 9 Additional objections, beyond that it violates the Board's orders on scope of rebuttal as to the January declarations, are as follows:

A_22 The reference to Professor Wurtele CBG once again objects to; he is a UCI.A professor and could testify; this is Impermissible hearsay.

,qgA J , The statement attributed to CBG's rebuttal is a repeat f rom the January declarations and di rect testimony (see Af tergood 99-10) . The only new issue is whether Staff can extrapolate d q to the source itself (rather than to near the source) . However, none of the answer deals with that aspect, instead responding to CBG's original arguments about 7/q, and adding non-responsive material.. The first sentence in the i answer is also argumentative and unseemly. All of tne material in the answer is simply new response to CBG's di rect, which is unchanged f rom the

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l January declarations, asA 4&5. This material is particularly prejudicial. Issues of aerosol L

behavior ara currently the subject of a major research project by the NRC as part of I ts source term review. Dr. Morewitz has presented the same arguments to the NRC teams working on this source term review, and it is far too early for the final results to be .in. Just as Dr. Morewitz is trying to raise at this late date his pet Csl theory, which he has been pushing on the same source term revied teams, it would be likewise premature for a licensing board to base a ruling before the final results of the NRC l research are in. Furthermore, to permit this material in, particularly

4 Dispersion /2 at this late date, would mean that the licensing board would have to spend days attenpting to litigate a matter that the Commission has assigned to a huge .research project and which the Commission has repeatedly said are issues too preliminarily studied to be used in licensing actions yet.

(see October 8,1983, address by Chai rman Palladino; testimony of NRC's Bob Bernero six months ago at Indian Point). Most importantly, had Applicant wished to raise this issue, it should have done so in its direct; nothing new raised by CBG raises this issue.

- pages 7-10 on plutonium hazards. This material is amazing. Applicant now wishes to litigate whether plutonium is dangerous, in particular, it asks that we litigate whether the various fi res at Rocky Flats and the nuclear weapons accidents, particularly at Palomares, Spain and Thule, Greenland, posed any hazard (arguing in the former case that there was no harm because all that had to happen was 1200 acres of ground had to have topsoll removed or other decontamination measures taken).

CBG's assertions that a plutonium fire would be hazardous, particularly if transported within the building, are not new. They are included in the direct and in the January declarations (see Warf declarationt 13,

' Pulido P 14, Taylor P 24-29 and excerpts of Taylor's book t 24-27) . The basic assertions in the direct come from the Warf declaration, which asserts tha t the Pu in the PuBe source can burn, releasing minute particles into the air, and "the pubile health implications would be awful." The calculations of how dangerous come f rom the Taylor declaration. This Applicant response responds to those assertions in CBG's di rect and January declarations that such a fi re would create Uwful public health consequences," particularly if transported within the building. The arguments about the bomb accidents

Dispersion /3 and the like are not legitimate rebuttal, and not even relevant, because CBG's assertions are about dispersion within a building primarily.

Note also that there is no reference to the PuSe source issue in CBG's dispersion rebuttal. Applicant is merely trying now to respond to matters it should have responded to initially, and doing so because it was disproven on its previous assertion that the stuff couldn't burn.

Hearings are not baseball games, wi th a party striking out and trying to keep coming back-to bat to hit again. Furthermore, li tigating the various nuclear weapons accidents and Rocky Flats fires goes far outside the scope of this hearing and will take very large amounts of time.

Conclusion Nothing in the enti re testimony is legitimate rebuttal; all l_

responds to CBG's original positivns in its direct and taken f rom its decla ra tions . The entire testimony should be struck, it is interesting to note that the Applicant has entitled the testimony response to CBG's testimony--not i ts rebuttal--on dispersion. Response to our testimony,

, which comes f rom the January declarations, should have been included, in keeping with the Board's orders, in Applicant's direct.

I To litigate the-toxicity of plutonium and the consequences of past plutonium accidents involving nuclear weapons and weapons factories f goes far outside the scope and would massively elongate the hearing.

I And most importantly, to star t trying to resolve the aerosol behavior issues--particularly on the basis of sodium fi re data f rom breeder research--

e-e i

~ Dispersion /4 in this licensing hearing when the Commission has already detenained that .it would be premature to change regulations or licensing actions until the massive research projects it has commissioned on these source term issues' complete their work would be to usurp an area assigned by the Commission elsewhere and duplicate work that is extraordinarily complex that is being conducted by others in the agency. It would be premature to base ~ licensing decisions on this work in process, the Commission has already said, and to attempt to litigate the assertions of Dr. Morewitz--

many of which have already been tentatively rejected by the Commission in the ongoing research projects and source term review--here as well as in the source term review ongoing would vastly elongate the hearing and prejudice CBG's interests. Most importantly, all of these issues respond to CBG's initial analysis and are totally unresponsive to any new material that would be legitimate rebuttal.

Applicant had its opportunity to raise these issues; the Board's orders on scope of rebuttal make clear that the entire dispersion testimony is outside that scope and must be struck.

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V OBJECTIONS TO " CALCULATION OF WIGNER ENERGY RELEASE FOR THE UCLA REACTOR BY OR. H. .PEARUiAN WITH SUPPORTING CALCUl.ATION BY N. OSTRANDER" The Peartman Material At the first session of tha inherent safety hearings, Applicant attempted to submit four pages of detailed calculations which formed the basis for the conclusory remarks contained in Dr.

Pear 1 man's profiled testimony. CBG vigorously objected, indicating the material should have been submitted with the testimony and making clear the prejudice to it done by concealing the basis of Dr. Peariman's l conclusory statements until the start of hearing so that CBG could not prepare cross-examination on the conclusions.

The Board ruled that it would not accept into evidence the l l

late-provided calculations. Over CBG's objections, however, It did admit l

' Into the record Dr. Pearlman's written testimony, which contained the conclusions based upon the non-admitted calculations. (TR 1762) . CBG

- objected to the foundation for the testimony being late-filed, which the Board sustained, but the Board let in the conclusory testimony over i.

CBG's objections that it thus had no foundation. CBG thus was placed in the very prejudicial position of having to cross-examine on conclusions the foundation for which had not been previously provided.

At the close of two days of examination, on re-re-di rect, when no such matter had been raised on re-cross and in response to a question asking for a " qualitative answer," Dr. Pearlman reversed two days of testimony and his prefiled material and asserted that the true j figure for Wigner ene gystored at UCLA was not the 100 C oT stated in his l written and about which he had been queried for two days, but rather 1500, CBG objected vigorously once again, that in addition to providing conclusions

, . I without foundation in its prefiled testimony in order to prevent preparation o

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..~ . . . . . . - - - .

'9

, Pearlman/Ostrander Calculations-2 for effective cross-examination and then trying to sneak the calculations in at the start of hearing, Applicant was now at the end of two days of testimony attempting to change the very calculations and conclusions that were being considered. Two days of examination of Dr. Peariman's assertion that a 100 C temperature rise was indicated, at the end of which Dr. Pearlman and Applicant's counsel attempt to sneak in a totally new figure, that the rise will be 15 instead. A motion to strike this remains pending.

The Board requested Applicant to respond to the motion; Applicant at the October hearings said Dr. Pearlman had written some new testimony which related to the matter and would provide it the next day and asked that ~

the discussion of the motion to strike be postponed till then. However, Dr. Peariman's written testimony was not provided then, and apparently is now.

The material makes no pretense of being rebuttal to CBG, but is rather an expansion and modification of the previously rejected calculations late-filed in the first set of hearings. The very first question tells it all--please explain the procedure you used to calculate the effects of a Wigner release. The testimony is solely explanation, expansion, and modification of the testimony given months ago, where the foundation i

for that conclusory testimony was purposely withheld untt i the last moment.

Applicant attempts to get into the record now the material previously j struck, plus some. The four pages of calculations have been expanded into l

j many pages of testimony. None of it is rebuttal, with the possible exception l

of the last four sentences on page 3 and the revised conclusion based thereon of a 175 C temperature rise found on page 7 l

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4 Pearlman/Ostrander Calculations-3 Furthermore, Dr. Pearlman tries once again to get in the 15 value, this time modified further to 260C, and add to his discussion

, of that value.

NONE OF THIS MATERIAL, WITH THE POSSIBLE EXCEPTION OF THE NEWLY-ACQUIRED STORAGE RATE INFORMATION ON PAGE 3, COULD NOT HAVE BEEN INCLUDED IN THE PRE-FILED WRITTEN DIRECT 1.AST JUNE. NONE OF THE MATERI AL IS REBUTTAL.

Several additional objections are in order. On pages 8 and 9 Dr. Pearlman makes certain assertions about CBG's Panel ll Testimony prior to correction of certain editorial and typographical mistakes submitted in errata on September 26 While Dr. Pearlman has event right to respond to the new material, he does not do so; but instead responds to the uncorrected version, which is not of record. The comments are therefore irrelevant; even were they not, they should have been responded to before, because they appear in the January declarations.

On page 3 Dr. Pearlman attempts to testify as to what Dr. Nightingale means by a certain passage in his book. CBG objects on hearsay grounds.

The Ostrander Calculation From the very first day of the inherent safety hearings, counsel for Applicant has tried to sneak into the record a certain " Monte Carlo" calculation performed by Neil Ostrander but not included in his prefiled testimony. This attempt began in voi r di re by Mr. Cormier, and continued throughout the hearing, with the Board repeatedly denying the admission of the calculation, although the Board did permit in the conclusion of the calculation (e.g., TR 1152) over CBGis objections. CBG was once again

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6 Pearlman/Ostrander Calculations-4 in the situation of a conclusion being admittad into the record without

-foundation, and UCLA trying to get the underlying calculations in long af ter it should have prefiled them. in this case, CBG had not even been l

on notice about theconclusion, as there was no mention of it whatsoever in the profiled testimony.

UCLA now tries, once again, to introduce the calculations so many times ruled inadmissible by the Board. (TR 1154, 1153, 1834-6,1838-9).

Further concerns are that Figure 1, referenced in the Ostrander calculation summary, is not -Included, and that the statement is indeed merely a summary of .the calculation, rather than the calculation Itself. Even were the calculations admissible at this late stage af ter so many times being struck, and even were the calculations true rebuttal related to new material not included in the January declarations (which is not the case), submission of the calculation summary rather than the calculation with its inputs makes cross-examination and response most difficult. No sources are referenced, that CBG can then check; not enough information is provided to make possible the reproduction of the calculation and full exposition of errors contained therein.

Summa ry The Applicant shleided two lengthy calculations f rom CBG by failing to prefile them in June. Had they been prefiled, as requi red, CBG would have been far more able to cross-examine and respond to the l

conclusions upon which they were based. The calculations, because of Applicant's failure to timely file them, were repeatedly denied admission, despite repeated creative attempts by Applicant to get them in (through cross-examination of Staff's Mr. Cort, through voi r di re of Mr. Ostrander, w  %- t- g Tet--- eye = -e---et, ,---Mw g- e-w--+ 9 ~v ~,r--r 4+-m- -

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4 Peariman/Ostrander Calculations-5 and so' on) . Applicant, over CBG's objections, got into the record the conclusions based on the foundational calculations even though the foundational calculations were repeatedly ruled inadmissible. UC LA tries- one more time to get admitted those calculations. They were outside the rules set forth for direct; they are clearly outside the scope of rebuttal. CBG particularly renews its objection to Dr. Pearlman's revision of his temperature estimate af ter Wigner release f rom about a o o 100 change to 15 on re-re-di rect, outside the scope of recross and non-responsive to the question asked, and to those parts of this proferred testimony that reiterate and expand upon that new figure not included in the prefiled di rect.

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s OBJECTIONS TO APPLICANT'S " REBUTTAL. TO CGG'S WIGNER ENERGY TESTIMONY" Some of the material included is legitinate rebuttal.

Much is response to matters raised originally by CBG, and thus outside the scope of rebuttal. Other material is merely repeti tion of previous direct, and thus not proper rebuttal, or argument more appropriate for findings of fact. Other material relates to the calculations ruled inadmissible previously by the Board. And still other material is purely conclusory, wi thout foundation or basis, assertions wi thout factual support. We have had far too much of all such material already in this case.

Specific Objections Q and A 1. General conclusory statements of this sort are objectionable.

The scope of rebuttal is narrow, and the specific, legitimate responses to specific new material speak for themselves. Furthermore, rebuttal is to show how the errors claimed by CBG to occur in Dr. Pearlman's calculations do not in fact occur; the answer instead suggests, yes he made the errors, but don' t worry about it.

p. 2, bottom paragraph, and p. 3 , top paragraph. Unresponsive to the question, which deals with the volume of the affected area. Both paragraphs attempt to summarize what Pearlman supposedly testified about--the best evidence of that is the transcript. This material might be appropriate for proposed findings , wi th transcript ci tations, but does not cons ti tute rebuttal nor a response to the question dealing with volume. Further, there is discussion of the calculations which have been ruled inadmissible. The discussion of

p- .c

.Wigner " Rebuttal"/2 L

temperature is not responsive to the question or CBG's criticism of the f'ux peaking error. The paragraph on page 3, beginning " incidentally..."

is indeed an incidental parenthetical paragraph unrelated to the question.

The rest of the paragraph attempts to argue about what Dr. _ Pearlman said in the previous hearing, which is of course a matter of transcript.

The material sounds like something written by an attorney for proposed findings, but is inappropriate for testimony, particularly rebuttal.

p. 3 bottom paragraph Again, this is not rebuttal. Pearlman testified that he assumed a 65 Irradiation temperature and that a lower temperature would produce higher energy.- His calculations were not admitted. Mr. Cormier attempts to tell us what those non-admitted calculations do, incontradiction to Dr. Peariman's testimony, where the latter is a matter of record and the former are not. The calculations of record are those that resulted in a temperature rise of 100 , which Pearlman said were based on 65 .

The fact that the non-admitted calculations provide means for correcting for this error by showing the effect of a range of different assumptions in no way responds to CBG's assertion that the 100 estimate errs in assuming a too high temperature. ' The fact that the non-admi tted material makes-possible the correction of the error is not rebu t ta l .

p. 4 The last two sentences are an improper rebuttal of Mr. Ostrander (rRivlO who fi rst ci ted the Taylor values on the record. The rest of the paragraph is all supposed response to the use of the Bradshaw thesis in duPont's declaration to get a value of 3.3 x 10 , .12That declaration was fi led in January; any response is now, according to the Board's rule, outside

'the scope of proper rebuttal. Furthermore,. that value and the Bradshaw

m.

-o Wigner." Rebuttal"/3 reference were corrected in errata dated September 26, explained at the hearing to be result of editorial error due to confusion between George B. Bradshaw, who did not measure neutron flux, and George B. Taylor, who did. Thus, any response regarding duPont's reference to Bradshaw in the January declaration is both late and irrelevant; the Bradshaw thesis is not even a matter of record in this hearing.

p. 5 top paragraph. Pearlman claimed the Battelle and CBG use of 50 was in error. CBG in i ts rebuttal demonstrated that, in fact, an even lower temperature should be assumed, rather than the higher figure argued for by Pearlman, in the guise of responding to this narrow matter, Applicant argues that Pearlman's error can be corrected for in the calculation that was ruicd inadmissible, because the correction factors can be found in i t. Other matters unrelated to the narrow issue of what is the operating temperature are included. The only relevant rebuttal material can be found in the last three sentences, which do address the CBG rebuttal method for estimating operating temperature.

p. 5, bottom paragraph CBG's assertions about the .6 to 1.0 ca l/g estimate in Nightingale were contained in the January declarations, and Dr. Pearlman has already availed himself to respond in previous sessions to that netter, We do not object to the last sentence.

e Wigne r '"Rebu t tal"/4

p. 6, top paragraph. Here again Applicant attempts tc respond to matters included in the January declarations (explicitly so stated in second sentence).

O And once again, Applicant attempts to mspond to matters not even of record.

CBG's original statement was that 208 cal /g would produce a temperature rise of 600 0, to 1000 0K as ending temperature. A typographical error made that aL rise of 6000 to 10000 C; that error was corrected in errata of September 26, clarifying that the temperature rise would be 600 ,

with an ending temperature of 10000K. Applicant acknowledges in the last sentence of the paragraph that the matter to which it claims to be responding is not even in the . testimony anymore, yet i t attempts to respond anyway,

p. 6 bot tom paragraph. Perhaps suitabic for comments by an attorney in proposed findings, but not legitimate rebuttal. The paragraph merely claims to tell us what Pearlman, CBG, and the Battelle study have said.

Obviously, the study and the transcript of the prior testimony are the best evidence of that, and thus there is no need to repeat assertions about what they say. One should also note that, as the second sentence admi ts, Pearlman explici tly stated that he assumed that a 1 Mwd a t UC LA was equal to a itwd/At at lianford, and i t is precisely that assumption that CBG had challenged as wrong and non-conservative. To repeat that it is conservative, wi th no support, is not rebuttal; saying it is so doesn't make it so,

p. 7 top paragraph Nonresponsive to the issue raised. CBG had criticized pearlman's assunption that I ltad equals I liwd/At. Applicant responds by saying thvd/At, a uni t which i t has just admitted using, is not applicable,

W-Wigner " Rebuttal"/5 The criticism was of his assumption of equivalence; now he is criticizing the use of the unit, which he admits he used. Not responsive to the issue raised by CBG; not genuine rebuttal,

p. 7, 2nd paragraph. Again, sounds like something Mr. Cormier should write for proposed findings, but not an appropriate piece of rebuttal. No foundation whatsoever is provided for the statement; it is merely a conclusory assertion.

Are we to be stuck again with Ms. Woodhead asking the wi tness for the foundation for the statement during cross-examination, or Mr. Cormier on re-di rect, and the basis, if any, for the conclusory assertion sneaking in the- wi thout prior scrutiny. If this continued use of conclusory assertions without foundation is not stopped, the enti re premise of thorough scrutiny of complicated scientific issues goes out the window,

p. 7, 3rd paragraph. The matter asserted to be responded to here was raised di rectly in the January declarations--the uncertainties in calculating stored energy and the need for real measurements. Sec Warf declaration, 726, for example. Outside the scope of rebuttal set by the Board.

p. 7, bottom paragraph, continuing onto p. 8, and fi rst new paragraph p.8 This material is not rebuttal but a misstatement of CBG's assertions.

The record contains the true assertions; rebuttal should consti tute the response. Second paragraph in addi tion, is cumulative and non-responsive towhether f ast flux does peak in center; asked and answered anyway,

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Nigne r ." Rebuttal"/6 i

p. 8, paragraph marked (1).; Unresponsive .to the issue allegod to be the topic of rebuttal--Influence of water moderation . The answer-repeats vague assertions about Pearlman's calculational procedure--

matters which are either in the direct and examination contained in the record already, or were contained in the calculation denied admission by the Board. In either-. case, attempts to characterize the calculational procedure either already in the record or struck f rom the record are not genuine rebu'ttal . Again,- this might be appropriate as statements by

.Mr. Cormier in proposed findings, but not as rebuttal testimony given the narrow scope established by the Board.

p. 9, ' top - pa rag raph. Not' responsive to the issue supposedly addressed--

Influence of water moderation. Furthermore, we once again get assertions without foundation. For example, simply claiming that the 300 cal /9 estimate is " grossly; overestimated"_ provides no basis whatsoever, merely a conclusory statement. ' Are we to find once again counsel for Staff and Applicant findings ways together to pre-file merely conclusions and sneak

- basis in orally at hearing, so CBG has no chance to check the math or references?

The same objection goes to the assertion about "these data" related to unnamed reactors cited somewhere unidentified in Nightingale's book.

p. 9, bottom paragraph. Some objection as to conclusory statements wi thout

- f ounda tion p rovided. Applicant makes a claim about the " correct value for the 'waterlayer," but provides no reference or source. Particular objection

'to last sentence, which is not rebuttal to CBG but rebuttal to Dr. Peartman 's own testimony previously (TR1862); furthermore, no basis is provided again, just an assertion.--

,S

-Wi gne r' " Rebut ta l"/7 P

1 m

. p.' f l0, top paragraph. Again, an assertion without foundation. established;

~

. perhaps appropriate for Mr. Cormier in proposed findings, but the simple -

- conclusory assertion . Is not. appropriate for . rebuttal tesamony. z

-p.10, second paragraph; Those calculations were denied admission tto tho

. record. Thus the conclusion is without foundation; and not responsive I

to new-assertions by CBG.

12 Q&A3. .CBG's assertions that-flux could be as high as 3 x 10 -

-: were included in the January declarations. . Applicant's own Mr. Ostrander

' testified in fact that.f' lux measurements (thermal) as high as 3 x 1012 had 'bcen made, citing the Taylor thesis. (TRIG 1G).- The testimony indicates

- that? the measurements cited in the A3 answer were made "In response to claims-

made be CBG that the thermal flux could be as high as 3.0 x- 10 12 n/cm -sec,

~2 or even higher, UCLA performed a detailed neasurement..." Such measurements-

~

i should have been in UCLA's di rect, under. the Board's rules, and are thus

._ outside the scope of rebuttal. Further,'.CBG again is concerned about hearsay, with conclusions of an individual f rom the institute of Geophysics

+

and Planetary Physics reported without that individual available for examination.

[ _'Likewise, the assertion that the. procedure is "known" to overstate tae actual flux is one of thos) hearsay, conclusory statements without foundation.

. Known by whom? How? Wi th' what support?

The objections to the attached measurements and calculations follow.

The objections to Pearlman's and Ostrander's attached calculations are included separately, and thus relate as well to Q&A4, L, N

. - . . ,- . . . , - . - . . , . , _ , _ - - n _- . ~ . - . _ - 1,.... . - , , , . - --.--..----e - - - - - - . - . . . - - .

rv o

Wigner " Rebuttal"/8 -- The Flux Heasurement Attachments

" Thermal Neutron Flux Determination" by Dr. G.W. Kallemeyn and

" Calibration of the UCLA Nuclear Reactor' by Emil Kalil.

Same objections as expressed on previous page. These measurements were admittedly made in response to CBG's allegations that thermal 2

flux could be higher than 1.5 x 10 and nr. Ostranderis admission that fluxes twice that level had been measured at UCLA. I t is not rebuttal to attempt to retut your own witness, and it is not rebuttal given the law of this case to respond in ' rebuttal to material that was in CBG's direct and the January declarations.

Additionally, CBG has a hearsay and foundational objection to the Kallemeyn material, as he is not noticed as a witness and thus the material has no sponsor. CBG would be prejudiced if unable to cross-examine on the materials due to the lack of the author.

Y l'

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_0BJECTIONS TO " REBUTTAL ON CRE0lBILITY OF CBG'S FIS$10N PRODUCT RELEASE MODEL" Introduction Much of the proferred testimony is really a rebuttal to the Battelle study offerred by Staff and adopted by UCLA. It is not rebuttal to CBG, and since the assumption being challenged newly by Applicant (that lodine would be released in gaseous form if surface area were exposed )

is precisely the key assumption of Applicant's own Safety Analysis Report, it is way outside the scope of rebuttal. Furthermore, Dr. Morewi tz, in ettenpting to have this licensing board resolve the issue of the chemical form in which lodine is found in reactor fuels and how this affects release f ractions, is trying to have this Board determine now a matter that the Commission has assigned a massive research team to decide, and which the Commission has repeatedly stated it would be premature to base licensing or regulation decisions until that research project is finished. Whether iodine appears in the form of Csi, or some other form, and whether that affects source terms for various accident condi tions, and if so, how, is a matter of extensive review by the Commission and a decision is quite some time off yet.

D r. Morewitz has submitted his views to the Commission on this natter already, and those views are being taken into acoaunt wi th many other contradictory opinions and will be considered in reaching a final decision, still quite some time off. To attenpt to bypass the procedure the Commission has established on this issue and have the licensing board repeat that consideration, create a full evidentiary record on the hotly disputed issues of Csl and effect if any on accident consequences would be premature, bypass the authorized route, and greatly elongate this procedure. Hoaever, one need not even consider doing that, because had UCLA wished to contest the release of iodine in elemental form, it should (1) not have adopted the Battelle study, which assumes

+

FUEL. CRUSHING M00Eij2 such release if fuel meat is exposed in a fuel smashing incident, and (2) submitted its ' rebuttal to those assumptions, duplicated f rom Battelle by Staff and CBG, in addition to UCLA Itself in its Safety Analysis Report, in its direct testimony submitted in June. To start raising this' issue now when the Board ordered that such responses must be includelin direct would clearly be far outside the scope of rebuttal. Furthermore, the hearing would go on almost forever, because the issues Dr. Morewitz is so untimely- trying to raise now are generic in nature, hotly contested within the scientific communi ty, and immense in technical scope.

Specific Objections Q&AI. Not rebuttal, but a lawyer's argument in proposed findings, i t constitutes one person's description of matters already in the record--

Professor Anderson's testimony, the Battelle study, and Professor Olander's di rect testimony.

qcA2. fi rs t two paragraphs. Same objectico as above. A lawyer's version

-of what opposing witnesses said, which is aircady in the record and its own best evidence;.no specific facts put forward in rebuttal. It is not rebuttal.

p. 5, second full sentence through bottom of fi rst new paragraph. This is rebuttal to UCLA's own Safety Analysis Report, relying on the Battelle study, which concludes lodine will be released in a fuel-handling accident. Now they attempt to argue it can only be released by melting of the fuel.

Battelle, which UCLA adopted, concluded that iodine would be released if fuel meat were- exposed due to smashing. Reid and inderson merely propose a

i FUEL CRUSHING MODEL/3 model or series of models to estimate the extent of surface area that would-be exposed due to microcracking in a smasni'ng incident. The assumption that if meat is exposed iodine would be released is neither new nor the assumption introduced by Reid and Anderson; it is the assumption of Battelle, adopted by both Staff and UCLA. This challenge to their own assumption of release in fuel-smashing conditions is rebuttal to themselves; it is thei r own assumption they are challenging; and i t is not appropriate , rebuttal, in the guise of responding to witnesses who accept your own assumptions, to bring in new assertions challenging-them. Applicant has sworn under oath its apolication, which includes as its basic SAR the Battelle stud/ , is true and correct.

The hearing process becomes totally unravelled if Applicant can continue to

~

. jettison its own analyses every time it turns out they contain embarrassing admissions. And certainly rebuttal is not the method by which such application amendments should be madd.

p. 7, top paragraph. Once again we get conclusory statements wi thout foundation established, or with foundation concealed. Applicant asserts that unnamed "empi rical evidence" suggests various things about fission tracks, that certain unidentified experiments demor. strate certain asserted facts.

CBG is unabic to review those supposed experiments or evidence to determine whether they indeed support the facts attributed to them. Will Applicant or Staff try to get the foundation in orally, so CBG is once again caught in a situation where i t cannot review the materials and demonstrate, as i t has so many times in this proceeding, that they do not support the proposition for which they are said to stand. To permit assertions such as these without specific foundation, as requested explicitly in CBG's letter of October 25, would result in the proceeding degenerating to trial by assertion rather than

FUEL CRUSHil1G M00EU4 hearing and scrutiny of scientific evidence,

p. 8, last two sentences of paragraph continuing f rom previous page.

Same objection as ta the p. 5 material. This new assertion that nothing can get out of the fuel, no matter whether it is cut, sliced, squeezed or crushed--in addition to its absurdity--is rebuttal not to CBG's rebuttal but to UCLA's own adopted Battelle study and SAR.

Q&A4 This asserted response is in fact rebuttal to CBG s response to Mr. liawicy's (Staff's wi tness) misuse of the Parker and Crcck study.

Mr. Hawicy testified that, relying upon this study, only 5% of the radiciodines were reported empirically as getting out of the fuel. CBG responded that the 5% figure was for trace' irradiated fuel at relatively lav melting temperatures; fuels wi th slightly higher burnups had releases of 50% to 90%. UCLA now attacks the use of the study at all--broaght up by Hawley, not CBG. The second and thi rd sentences in the answer may be wi thin the scope, but the rest is not. All CBG had said was that the Parker and Creek study didn't say what Mr. Hawley said i t said, which UCLA does not dispute.

In addition, CBG strongly objects to the hearsay regarding Mr. Parker, if UCLA wishes to rely upon assertions by Parker, he should be present as a wi tness so that he can be subject to examination.

QcA5. This material doesn't even pretend to be rebuttal. Furthermore, aside f rom the fi rst sentence of the answer (which is objected to because once again we get a conclusory statement wi thout foundation), none of the material is responsive to the question--what is the empi rical evidence concerning the releases of iodine gas f rom MTR plate-type fuel. We get i nf ormati on

v ,

t FUEL CRUSHING N00EL/5 asserted about power reactor fuel pins, about IIquid metal fast breeder reactor fuels, about plutonium fuels, about EBR-il fuels, and so on, but not a single piece of assorted evidence about the issue addressed in the question--enpirical' evidence for HTR plate-type fuels. Furthermore, Dr. Morewi t: raises here the theme ha has carried for EPRI for years in an effort to get NRC to reduce its long-standing assumptions about source term--

that the form of iodine in reactors is Csi. This is a matter of intense review within the agency, a matter involving many ongoing research projects, and the Commission has repeatedly said it is far too early for the issue to affect licensing and regulatory decisions, it would be highly improper to try to litigate those issues in this proceeding, particularly prior to completion of the ongoing NRC research, and particularly in light of it being for outside the scope of rebuttal, being an issue that should have been raised at least in di rect, and more appropriately, in the Application i tself, which does not assume Csi, it is not rebuttal, i t is premature for licensing boards to even consider it, and it would vastly elongate the proceedings if it were considered at this stage.

qcA6 Same objections as -above. This does not respond to new matters raised by CDG, but trics instead to rebut Applicant's own adopted Battello study with information the subject of continuing research by NRC far too early to consider in licensing hearings. (Note that the NUREG ci ted by Horewi tz, in addi tion to discussing the contradictory evidence, concludes that appearing as Csl does not matter much in terms of accident consequences for many accident sequences.) This is not rebuttal, the Commission is engaged in ongoing work in the area,- and the hearing would essentially never end if we had to li t : gate this generic issue.

l a

? .

f'

[ FUEL CRUSHING H0DEtJ6 Q&A7. Same objections. This too is part of the source term review rescarch underway by the Commission; no matters on the subject of reactor and building structure removal mechamisms were raised by CBG new submissions; the material cited is all of liquid metal reactors and high temperature gas reactors, and the like. Dr. Morewitz has made his views on these source term matters known to the Commission departments assigned to review the source term issue under pressure f rom EPRl; his views are hotly contested within the scientific community; these are generic issues

~

under rcview by the Commission withclear direction f rom the Commission that they are to be resolved generically and that i t is too early to begin applying any conclusions, not yet reached, to licensing decisions.

R&A8 licarsay objections, Again, if UCLA feels Mr. itofmcr.'s work is of importance to the record, he should be available to sponsor it as evidence and answer questions about it. Uc get merely someone's assertions about t

llofman's work, wi thout even a rcierence or a study provided. We get illegibic photocopies of micrographs, withsomeone's (whose?) handwri tten ti tics , and someone's assertions that Hofman s tates. . ." If UCLA wishes to rely on statements by Hofman they must be under oath and on the record wi th an opportuni ty provided for CBG to conf ront the evidence and the witness.

Same objections to the photocopics of the micrographs or SEM photos-tilegible, without sponsor. If Hofman has indeed done research in this area, the very least that can be expected is that his full articles be referenced or included that are alleged to contain the relevant information. This is hearsay that nakes examination and scrutiny of the truth impossible.

'e OBJECTIONS TO " REBUTTAL ON CREDIBILITY OF A GRAPHITE FIRE AT THE UCLA REACTOR" Introduction Huch of the material is response to matters raised by CBG in its January declarations, or repetition of matters raised by UCLA in its July direct testimony, or what amounts to argument by counsel about what the record already is deemed to show, more appropriate for proposed findings.

Specific Objections Q&A3 ano page 3 comparison chart. CBG raised the Windscale fire as significant to t,he UCLA case in its January declarations. DuPont declaration P 10, Varf e6,15,31; Kaku t 62-3; Pulido, f 19. This is not rebuttal,

' ut o a continuation of di rect, which should have been in the di rect and cosid have been.

A4 Nonresponsive to the supposed assertions by CBG said to being rebutted. Wegst had initially testified that graphite is non-combustible because " solids don't burn." CBG's chemists said that is nonsense.

This response raises new matters--not that solids don't burn, but that oxidation is diffusion- controlled.

A6, sentence midway down beginning "Moreover. . ." This 15% issue, which pops up repeatedly, is nei ther rebuttal nor otherwise appropriate--the calculation on which it is based has been repeatedly ruled inadmissibic.

v

+

Graphite Fi re/2 A7. Counsel for Applicant, in identifying the matters it requested rebuttal e for, explicitly said it wanted to show that the studies which CBG rolled upon for its assertion of decrease in thermal conductivity with i rradiation do not say what CBS says they say. A big show was made by Applicant of deamnding the names of several of these studies, llowever, Applicant does not rebut those named studies (Tk 3070) but " rebuts" a study by Woods not identified by CBG at all. There is no mention of the studies CBG used, yet 'JCLA accets that CBG " omit 5_7 .nany important facts" in this regard, going on to rebut the Woods study not used by CBG. CBG further objects to the last sentence on page 7, continuing over to page 8, dealing once again wi th the 17/, calculation, objected to previously. The last paragraph on page 8 is cumulative.

AG. Without foundation. Despite CBG's raising of this issue in its October 25 letter to the Board, UctA continue s to make grandiose assertions abant "many studies", ' soma of the experiments ," and so on, wi thout identifying a single one by name and publication. These are assertions without foundation, making scrutiny impossible. Last sentence, in addition to being vastly cumulative, again deals with the Ostrander lionte Carlo calculation that has been ruled inadmissible, i

A10, second paragraph. Not rebuttal. CBG raised the issue of the i rrelevance of UCLA's normal ai rflow to fi re condi tions in i ts January

- dec la ra t i ons . The quotations f rom the Battelle study, already in record, 3

again are the kind of argument for findings of fact, not genuine rebuttal.

And the reporting of an alleged conversation with Professor RcDkin who, despi te being the author of part of the Battelle report, did not testify,

. Graphite Fire /3 is the grossest form of hearsay, lie is not present to be interrogated.

Fi rst new paragraph on page 12. Last half of paragraph, beginning af ter "They are correct..." at "...but they..." CBG's comments about Dahl were restricted to responding to Vegst's assertions about adiabacy. Wegst now tries to raise a new issue--not that the graphite is inherently protected against combustion by its chemistry, cIcarly disproven, but now that "no one has identified" any ' methods Dr. Vegst finds credible for providing the initial igni tion tenperature. The Board has repeatedly ruled that it didn't want to get into how the accident sequences occurred, but whether the reactor was inherently protected against the accident, no matter how ini tiated.

UCLA has tried to argue it was so inherently protected, due to the supposed non-combustibility of tha graphi te and the supposed need for forced airflow; now that CDG has demonstrated those assertions are totally erroneous, rpplicant, rather than defend its previous assertions , raises new ones about credibili ty of the accident being ini tiated. This is also totally outside the scope of the question it supposedly addresses, to respond to our assertion that the reactor structure permits substantial ai r flow in a fi re.

All. This simply repeats Dr. Wegst's previous assertions, which were challenged by CBG. Repitition of position is not rebuttal of new information. The last paragraph, quoting f rom the Battelle study, perhaps is appropriate for findings of fact, bot not rebuttal.

o Graphi te Fi re/4 q and A 12. This is not rebuttal of CBG new material, but attempts to rebut the Battelle study which UClA has adopted. it is neither rebuttal of new material, nor rebuttal at all, because i t challenges UCIA's own Safety Analysis Report which adopted the Battelle study. Furthermore, the motorial is largely repcti tion of di rect.

n==== ' 'a . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _

r 9.

.'08 JECT 10NS TO " REBUTTAL CONCERNING THE SHUTDOWN HECHANISH -IN THE UCl.A ARGO!!AUT" 4

I n t roducti o_n_

Most of this material is not rebuttal at all to any new material put ' forth 'by CBG, but rather expansion and correction of previous testimony

~

by Mr. Ostrander. Half of It is an _ expansion of his mass of the core theory 5

and an attempt to deal with CBG's criticism in January of not considering 4

, other. differences between reactors such as void coefficients. It attempts

- to correct previous statements of Mr. Ostrander, making it not rebuttal to

.CBG new material,' but rebuttal of Applicant's old material. The first half doesn't deal at all with the issue addressed by Judge Luebke--where

. does the water 907 in the guise of dealing with that issue, Mr. -Ostrander attempts to correct previous errors in not. consid( ring void coefficients in computing energy release.

The last half or third of the material purports to show calcula tions

. dealing wi th where the water goes. However, none of this is truly rebuttal.

The issue of the rupture ' disk was raised by CBG in its January declarations (sco Kaku' declaration, P 79, dealing both with the rupture disk and the issue of this' being a closed system as opposed to the sport and- Borax reactors.)

The only new Information that could perhaps provide justification for including a new analysis in rebuttal Instead of di rect was the revelation that the deflector plates face a blank wall. However, this revelation was not made by CBG, but by. Applicant, in fact by Mr. Ostrander who is now attempting rebuttal.

It-came as a surprise to the other parties and the Board, but surely was no

.surprisc' to the man who revealed it. There thus is no excuse for any analysis

'considering .the effect of the rupture disk ~ (made an issue b CBG in January) or the deflector plate facing a blank wall (known to Applicant all along) not bcIng' included In the direct testimony at Icast; in fact, the analysis should have- been in .the Application's Safety Analysis Report, where Staf f could have-

( ...

V Shutdown " Rebuttal"/2 reviewed it in preparing its SER and CBG would have been able to have discovery regarding i t. After 23 years to finally attempt an analysis of

.how a power excursion would be terminated in your own reacb r is a little stunning. The only explanation appears te i that Applicant did not know how to' perform such an analysis until Dr. Kaku explained to them how the calcula tions should be done. (Unfortunately, they did the calculations all wrong, but that is another story.)

CBG thus objects to all portions of this material which violate the Board's rule regarding scope of rebuttal. All of this could have and should have been in the Application, or at least the direct. It is not rebuttal to rebut your own. testimony. The failure to consider void coefficient differences has been of record since the January declarations, as has the rupture disk issue;-and the deflector plates facing a blank wall has been known to Applicant apparently all along. Ilone of this is legitimate rebuttal.

Specific objections pages I and 2.- Those are repeats of tir. Ostrander's previous testimony.

with an attempt to include a revised Figure on page 2 that was I ste-offered at the July hearings and thus not.put into evidence. Like much else in the fpplicant's so-called " rebuttal," this is merely ar. attempt to get into the record material not placed into the record in the direct case because of UCI.A's failure to file on time.

_ _____ ____ _____ _ -- J

G,.

Shutdown " Rebuttal"/3 Eve rythi ng f rom O3 throuch A31. - None of this -deals wi th the issue of where the ' water goes in an excurs' ion.- The first many pages are attempts to include some consideration of UCLA's smaller void coefficient in his previous calculations. CBG's criticism of failure to correct for the smaller void

. coefficient has been on'the record since January. Much of the rest of the discussion -rests on trying to correct previous values Ostrander gave for void coefficients, repeating one more time his assertions about his disallowed i

Monte Carlo calculation of neutron escape from-the fuel boxes', etc.

All of the k ~ 73 discussion, the power density assertions, the Forbes et al '

modifications Ostrander proposes are ' attempts to correct errors Ostrander made on the stand and exposed on cross. They are expansion of previous testimony, l wrapped .in a fancier package, with new calculations that should have been in the direct.

Robuttal is not a second time at bat, but an opportuni ty merely to respond- to new matters raised that couldn't have been dealt with previously.

UCLA performed no reactivity' analysis whatsoever of its own in its Safety Analysis Report (the whole thing being 13 pages) . The meagre. calculations performed by Mr. Ostrander in his direct:were severely damaged on cross.

Rebuttal is not a chance to start over again and do what should have been done in the Safety Analysis Report in the first place. All the . material supporting his " mass of the core" or power densi ty theory should have been in his direct

'when he introduced it; he should have corrected for void coefficient differences-

- when CBG raised the issue in January. None of the material relates to where the water- goes, q' 32 to A51. All of this should have been in the Application or direct.

- The rupture disk problem was identified by CBG in January, and fpplicant has known all along about the deflector plate facing a blank wall.

.o b

' Shutdown' Rebuttal /4 It should be noted that UCLA raade a big issue at the last hearing that I t needed the continuance in order;to respond to the "new" Information regarding SPERT ll . There is only one paragraph even mentioning SPERT 11, and it doesn't even address the issues raised by Mr. !!orton, merely trying to explain why Mr. Ostrander f ailed to include SPERT 11 in his power densi ty chart.

Additional objections to A26 and A29, once more rupeating the assertions about the Monte Carlo neutron calculation; not of record.

Conclusion I

The enti re testimony is objectionable, lionc of it is rebuttal; none of it could not have been included in the Application or direct testimony. It uses the excuse of dealing with the issue of where the water goes to expand an analysis unrelated dealing with enre mass, void coefficients, etc.

Much of the testimony is correction of previous testimony. flone is genuine rebuttal.

rw e - - + wg y

f.

OBJECTIONS TO " REBUTTAL TO CBG'S PANEL 1 REBUTTAL" Introduction

• Much of this material is not rebuttal to the matters raised

.in CBG's rebuttal, or repetition of previous di rect, or non-responsive to the questions raised. . Some consists of conclusory assertions without foundation established.

Al P 1 and 2. Neither paragraph is responsive to the question or the matter raised in CBG's rebuttal. Mr. Ostrander had earlier testified that the maximum reactivity worth of the core, fully loaded with clean, f resh fuel, was about '$3.50. - CBG rebutted that by calculating a considerably higher figure.

Mr. Ostrander does not rebut the specific CBG assertion, but Instead repeats his previous testimony about procedures employed, ist new paragraph on page 3. . CBG had raised the issue of plate spacing reactivi ty. effects in the January declarations. Norton t 59, Kaku f 41.

-Paragraph beginning bottom of page 3,continutng on page 4 CBG raised the issue of hot graphi te, cold water effects in the January declarations.

Norton #62-8 through fi rst paragraph on page 6 paragraph beginning bottom of page 41 CBG's assertions about the graphi te

l. coefficient were in the January declarations. Much of this is cumulative of what UCLA has already argued; the rest should have been argued initially, i

l Additionally, paragraph at bottom of page 5 refers to unidentified "recent experiments"; assertions about such experiments wi thout the actual reports or records lack the necessary foundation. ,

i

~f Panel I/2 Paragraph, bottom page 7. Totally conclusory staterr.ent without foundation- .

no positive volds assertedly existing. Continuing objection to " credible,"

issue raised in January declarations. Kaku P41 Q&A 2 t,3. Not rebuttal. Reiteration of previous arguments.

Q&A4 This assertion was made in the January declarations and the direct testimony tak'en-from them. Norton and Kaku declarations generally (much discussion throughout); rapid insertion possibilities (e.g. Norton P 50, 53-5).

Again, largely reiteration of previous arguments; the rest should have been

. In the direct.

qsA7. Issue raised in the January declarations. Norton f 57, Kaku 2 52 Not rebuttal, qsA8 Issue raised in January declarations. - Kaku 42-3.

Plus the- 85% neutron Monte Carlo calculation not in evidence, qsA9. This is argument perhaps appropriate by counsel for proposed findings; the record of Mr. Ostrander's previous testimony stands on i ts own. Rebuttal is not saying what you think you said before.

' ' = - ( '%'d 3 , . _g 'gp g' [ [j g_g 7 f- - ' . , , we

UNITED STATES OF ANRICA NUCIEAR REGUIATORY COMMISSION BEFORE TU ATOMIC SAFEFY AND LICENSING BOARD In the Matter of

, Docket No. 50-142 TR REGB1rFS OF THE UNIVERSITY (F CALIFORNIA (Proposed Renewal of Facility License)

(UCIA Research Remotor)

DECIARATION OF SERVICE I hereby declare that copies of the attached: CBG Objections to Proposed

-" Rebuttal" Testimony by Applicant and Staff in the above-captioned proceeding have been served on the following by deposit in the United States anil, first clase, pustage prepaid, addressed as indicated, on this dates November 17. 1983 .

• John H. Frye, III, Chairman Christine Heluick Atomic Safety & Licensing. Board Glenn R. Woods U.S. Nuclear Regulatary Commission Office of General Counsel 590 University Hall

'* Dr. Emmoth A. Imobke 2200 University Avenue Adminiatrative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commisalon Mr. John Bay Washington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123

• Glenn 0. Bright Administrative audge Atomic Safety and Licensing Boarti L N h ff U.S. Nuclear Regulatory Commission Deputy City Attorney City Hall Washington, D.C. 20555 1685 Main street Chief, Docketing and Service Section Office of the Secretary Wasfti ton D 5 6300 dilshi lyd., Suite 1200 Los Angeles, CA 90048 cCounsel for NRC Staff U.S. Nuclear Regulatory Commission *Carole Kagon Washington, D.C. 20555 Atomic Safety and Licensing Board Panel attention: Ms. Colleen Woodhead U.S. fluclear Regulatory Commission Washington, D.C. 20555

• • William H. Cormier Office of Adminiattative Vice Qiancellor '

/

University of. California /

405. Hilgard Avenue

[#'"/ - g Los Angeles, (hlifornia 90024 '

Daniel Hirsch b Exp ss President COMMITTEE TO BRIDGE THiil GAP

,