ML20083A660

Position on Contention Xx.Aslb Should Clarify Specific Factual Matters in NRC Motion for Summary Disposition. Whether Univ Must Provide Protection Against Sabotage Is Only Issue.Certificate of Svc Encl

ML20083A660
Person / Time
Site:	05000142
Issue date:	12/13/1983
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:
References
NUDOCS 8312200361
Download: ML20083A660 (9)

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'83 DEC 19 N0:26 UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COP 911SSION [ . [_ ;G -E n l ,\ T.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility 0F CALIFORNIA ) License Number R-71)

)

(UCLA Research Reactor) ) December 13, 1933

)

UNIVERSITY'S POSITION CONCERNING CONTENTION XX DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK l

590 University Hall 2200 University Avenue

! Berkeley, California 94720 Telephone: (415) 642-2822 Attorneys for Applicant THE REGENTS OF THE UNIVERSITY l OF CALIFORNIA l

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8312200361 831213 PDR ADOCK 05000142 QD G PDR

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I. INTRODUCTION In its October 24,1983 Order 1/ the Board stated that it wished to hear "the positions of the parties with regard to what portions of Contention XX, in addition to those pertaining to sabotage, remain in controversy." Order at

12. The Board had denied Staff's motion for summary disposition of Contention XX based in part on its ruling that UCLA must comply with Sec. 73.60 as well as Sec. 73.67. However, the Board reversed its ruling that Sec. 73.60 is applicable to UCLA and stated that it was inclined to agree with Staff's characterization of Contention XX as arguing for higher standards of protection than those set out in Sec. 73.67. Id_. Subsequently, in its November 23, 1983 Order 1/ the Board directed the parties to file their positions by December 13, 1983.

University submits that the only matter raised by Contention XX that remains in controversy concerns the question whether University must provide protection against radiological sabotage and theft or diversion of special nuclear material (SNM) beyond the measures required by Sec. 73.67 This dispute is not a factual one, but a legal one which now centers on the Board's interpretation of Sec. 73.40(a). Although the Board has not had occasion to fully explain the practical effect of its recent ruling on the need to protect 1/" Memorandum and Order (Ruling on Staff's. Motion for Reconsideration - Contention XX)" (" Order").

E/" Memorandum and Order (Memorializing Conference Call of November21, 1983)."

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1 against sabotage, the Board's interpretation of Sec. 73.40(a), as applied to the UCLA facility, is clearly inconsistent with the practice of those within the Commission who are responsible for interpreting and applying the Commission's safeguards regulations. As a consequence, this matter raises a substantial legal question which should be resolved before proceeding further l with this contentior.

Because Contention XX concerns basically a legal question and not a factual dispute the Board should rule on the specific factual matters discussed in Staff's motion for summary disposition of Contention XX to determine whether any material factual disputes remain in controversy aside from those that may be related to the Board's interpretation of Sec. 73.40(a). The Board has already ruled, in effect, that Sec. 73.60 is not applicable to UCLA. Order, at 8.

Staff's motion for summary disposition with supporting affidavits demonstrate that the applicable provisions Sec. 73.67 are satisfied at the UCLA facility.

The only remaining dispute concerns whether additional measures must be taken at the UCLA facility to protect against sabotage. In its ruling on the specific matters raised in Staff's motion the Board can clarify the issue by explaining what practical effect is to be given to its ruling that UCLA must protect against sabotage.

II. DISCUSSION

1. CBG's Contention XX As the license applicant in these proceedings and the party that bears the ultimate burden of proof, University is entitled to know the precise factual claims that are being made by the intervenor CBG and the basis for such claims. In addition, where specific claims are dependent on a particular interpretation of the regulations, Universit.y is entitled to know what that interpretation is. If the interpretation is at variance with the consistent practice of the Commission, University is entitled to a ruling and early review.of that ruling by the Commission.

In this regard, University notes that at the time Contention XX was admitted, University and Staff sought clarification of the precise regulatory basis for CBG's contention. During the February 4-5, 1981 Prehearing Conference, CBG explained its contention in terms of the applicability of Secs. 73.60 and 73.67. Tr. 360-398. As a result of the discussion that occurred at the prehearing conference and to clarify the contention the Board inserted the phrase " pursuant to 10 CFR 73.60 and 73.76 (intending "73.67")" in the first sentence of the contention. Order Subsequent to Second Prehearing Conference, March 20,1981, at 12. At that time CBG made no claims concerning the applicability of Sec. 73.40(a). It was not until its part response to Staff's motion of September 7,1983E that CBG made its claim that the NRC Staff had

' 3_/"Intervenor Bridge the Gap's Response to NRC Staff's Motion For Summary Disposition as to the Issue of the Applicability of 10 CFR 73.60 and the Need to Porect Against Sabotage" ("CBG Response").

4 "overl'ooked the sabotage protection requirements of 10 CFR Sec. 73.40." CBG Response, at 4 CBG argued that it was not necessary to reach the question of the requirements of 10 CFR Sec. 73.67 in order to resolve the sabotage protection issue. Id_.

It now appears that CBG is asserting that although UCLA may well satisfy the requirements of 73.67 it does not satisfy the additional sabotage protection requirements of Sec. 73.40(a). (The contention should be amended to reflect CBG's new reliance of Sec. 73.40(a).) Leaving aside the question of what additional requirements remain to be satisfied, the Board should decide the specific factual matters addressed in Staff's Motion as they relate to whether the requirements of Sec. 73.67 are satisfied.

As Staff has pointed out in its petition for reconsideration the Board has not reached these specific factual issues which are raised in the contention.

2. Board's Interpretation of Sec. 73.40(a)

The Board's ruling that Sec. 73.40(a) is clearly applicable to all

, licensees is not dispositive of the basic legal question raised by CBG's contention. Subpart 1 of CBG's Contention XX contains the assertion that the UCLA facility should be protected "against possible acts of radiological sabotage or attempts at theft or diversion of SNM." That assertion is equivalent to the claim that UCLA should be able to prevent all possible acts of sabotage.

In response to that specific claim University has asserted that the Commission's I

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5 regulations do not require that it be able to " protect against sabotage" in the sense of any requirement that University employ measures at its facility that will be effective in thwarting aor preventing specific acts of sabotage or theft.

However, the protection against sabotage and theft required by Sec. 73.40(a) can be interpreted in a more general sense. Certainly, the security measures employed by UCLA in satisfaction of the requirements of Sec. 73.67 provide some measure of protection against sabotage and theft, even though the design objective of that regulation is only to detect theft or diversion of SNM. University's security precautions provide " protection against sabotage" although, University concedes, the level of protection that is provided would not satisfy the objective of preventing certain specific acts of sabotage such as the design basic threats defined in Part 73 of the regulations. In this connection, University notes that it is the " Safeguards Contingency Plan" and not the " Physical Security Plan" that is concerned with plans for dealing with threats of radiological sabotage or theft of SNM and University is clearly exempt from the requirement that it have a " Safeguards Contingency Plan." 10 CFR Secs. 50.34(c) and (d), 73.40(b) and Appendix C to Part 73. The Board's interpretation of Sec. 73.40(a) does not specifically respond to the claims made in the contention. Moreover, the Board's ruling is not necessarily inconsistent with Ur .versity's position concerning what actual security measures are required to be in place at the UCLA facility.

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In deciding the specific factual matters raised by Contention XX and addressed in Staff's motion for summary disposition University requests that the Board clarify its ruling with respect to the applicability of Sec. 73.40(a) to the UCLA facility. In particular, the Board should clarify whether in its interpretation the requirement to provide physical protection against sabotage or theft of SNM necessarily means the adoption of measures beyond those required by Sec. 73.67; if so, whether such measures are to be effective in preventing all possible sabotage or some specific design basis sabotage threats; what are the specific design basis sabotage threats; and whether such specific design basis sabotage threats are to be addressed in University's " Physical Security Plan." Such a ruling will clarify the practical effect in these proceedings of the Board's interpretation of Sec. 73.40(a). In University's view, the practical effect which the Board gives to its ruling concerning the applicability of Sec. 73.40(a) may raise a substantial legal question warranting interlocutory review. It is essential that this legal question be resolved before proceeding further with this contention to avoid unnecessary proceedings and delay. In addition, University is entitled to the Board's determination of what material factual matters remain in di'spute under this contention.

University submits that these matters can be resolved on the basis of Staff's pleading without requiring discovery or further in_ camera proceedings in accordance with the procedures that apply to motions for summary disposition.

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III. CONCLUSION As expla*aed above, University's position respecting Contention XX is that the only matter clearly in controversy under the contention concerns whether University must provide protection against radiological sabotage and theft or diversion of special nuclear material (SNM) beyond that required by Sec. 73.67. This raises a legal question that should be resolved before proceeding further with the contention. University respectfully requests that the Board decide the specific factual matters addressed in Staff's motion for summary disposition and clarify the practical effect of its ruling concerning Sec. 73.40(a).

Dated: December 13, 1983.

DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK

{

By  !

WILLIAM H. CORMIER Representing UCLA I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility OF CALIFORNIA ) License Number R-71)

)

(UCLA Research Reactor) )

CERTIFICATE OF SERVICE I hereby certify that copies of the attached:

UNIVERSITY'S POSITION CONCERNING CONTENTION XX in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: Decuber 13. 1983 .

John H. Frye, III, Chairman Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, CA 90025 Washington, D.C. 20555 Mr. John Bay, Esq.

Dr. Emmeth A. Luebke 3755 Divisadero (203 Administrative Judge San Francisco, CA 94123 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Commission Mr. Daniel Hirsch Washington, D.C. 20555 Box 1186 Ben Lomond, CA 95005 Mr. Glenn O. Bright Administrative Judge Nuclear Law Center ATOMIC SAFETY AND LICENSING BOARD c/o Dorothy Thompson U.S. Nuclear Regulatory Commission 6300 Wilshire Blvd., #1200 Washington, D.C. 20555 Los Angeles, CA 90048 Ms. ole F. Kagan, Ms. Lynn G. Naliboff ATOMIC S CENSING BOARD Deputy City Attorney U.S. r Re ry Commission Cit */ Hall ington, D.C. 2055 1685 Main Street Santa Monica, CA 90401 Counsel for the NRC Staff OFFICE OF THE EXECUTIVE LEGAL DIRECTOR Chief, Docketing and Service Section U.S. Nuclear Regulatory Commission OFFICE OF THE SECRETARY Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

/7/sh WILLIAM'H. CORMIER UCLA Representative THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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