ML20083H329

Motion for Curtailment of Reactor Operation Pending Final Determination of Safety Concern.Irreparable Injury Associated W/Any Further Delay of Proceeding.Declaration of Svc Encl

ML20083H329
Person / Time
Site:	05000142
Issue date:	01/09/1984
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8401130157
Download: ML20083H329 (66)

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4 00CKETED I

CCyJ:IMEE TO BRIDGE THE CAP U3(( nary 9,1984 1637 Butler Avenue, Suite 203 2

Los Angeles, California 90025 (213) 478-0829

.@' M. N M N

~3 UNITED STATES T APERICA 5

WCIEAR REGUumRY COMSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 6

7 In the Matter of Docket No. 50-142 8

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (Proposed Renewal of 9

Facility License)

(UCM Research Reactor) 10 11 MOTION FOR CURTAIDENT (III) 12 (Irreparable Injury Associated '41th Any Further Delay) 13 14 Introduction 15 7he day before the repeatedly delayed inherent safety hearings 16 were to conclude in this proceeding, the Applicant, over strong objections 17 by CBG, requested one more delay.

Because each additional delay extends 18 the time during which the reactor continues to operate while its safety 19 is in question, the Board expressed concern about the effect of any such 20 continuance, saying, '"de are concerned, obviously, because we feel serious 21 cafety matters have teen raised in the proceeding." The Board therefore

'22 granted only a limited continuance, setting a deadline of December 10 23 for final conclusion of the hearings. This last delay was to " finish" 24 the matter, the Board said--if not, the Board would entertain motions 25 to curtail operations at the reactor facility:

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[IJf for some reason we cannot adhere to that schedule 27 and close the record no later than Decenter 10, we would gg at that point be willing to entertain motions on a showing of' good cause that overations at UCLA should to curtailed.

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TR 3112-3, emphasis added 0

TSO3 i

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The Decenter 10 deadline has come and gone, and the hearings y

2 have yet to reconvene, let alone conclude. The safety of the UCIA reactor remains an unresolved question, ard goed cause exists for its 3

operation to be curtailed pending final determination of ~ whether it 3.s 4

safe to operate.

6 Irre; arable Earn 1

8 Irreparable injury on a large scale could result if an accident 9

were to occur because cne party's strategy of litigation by delay prevented 10 the Board from timely resolving unether the reactor is inherently safe 11 from such accidents. The people of Los Angeles quite frankly cannot

'12 comprehend why a nuclear reactor in its midst, ateut which an NRC atonic 13 safety board says very serious safety questiens exist, is able to continue

_]4 to operate without even the most fundamental of safety issues resolved--

15 how (or if) the reactor can shut itself down in an accident.

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'Ihe UCLA reactor sits, without containment structure or buffer jg zone, in one of the nost populated urban areas in the world. It is run gg by students, who learn by making mistakes. It has $3 of excess reactivity 20 and en ugh fission products to expose people out 75 kilometers to radiation 21 doses in excess of legal limits if even a fraction of the inventory were 22 released, with monstrous doses closer in.

Ihree plate-type reactors were 23 vi lently disassembled with reactivity insertions in the range of that

-24 p ssible for the UCLA reactor. It is located on the virtual intersection

_g of two massive earthquake faults. It is built of contustible materials like those that destroyed the Wirdscale reactor, releasing trenerdous 26 quantities of radicactivity, yet has no plan for fighting such a fire.

The potential for disaster is all a matter of record in this proceeding.

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. Sore of '.he above is disputed by Applicant, who says graphite y

is " onsi : d" a non-combustible caterial; that essentially no radio-2 activity could get out of the fuel no catter how violently it was snached:

3 that $3 of excess reae.tivity cannot cause damaget and so on.

The Eoard 4

has not yet been permitted to rule who is right.

The Board has ruled that there is a genuine dispute as to the 6

facts-- as to, essentially, whether this reactor can contaminate a significant i

portion of Los Angeles and the people who reside therein. It is an open question which affects the vital interests-- the health and safety, and irdeed the lives-- of hundreds of thousards of people.

Will this reactor shut down safely in an accident? The Ecard does not yet know, in large measure due to UCLA failing to have provided sufficient information in a timely fashion. The delays created by the Applicant-- which wcrk to its advantage as it gets to keep operating longer with each delay-- mean that the time when the Board will te able to decide 15 remains at least months off into the future, assuming no further delays 16 (wishful thinking in this proceeding to date). In the meantime, a 17 tragedy of major proportions might occur at any time, causing irreparable 18 harn. Operations must be curtailed while the Scard determines, tased on 10 t

the evidence, whether it can te safely operated.

20 2eyond the irreparable harm that might result to public health l

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and safety were something untoward to occur while the Soard was attempting l

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to determine whether something untoward could occur, irreversible damage L

23 results to C2G's interests in this proceeding if curtailment is not ordered.

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It is now nearly four years since UCIA applied for the requested license.

25 Virtually none of C3C's twenty contentions-- ranging from concern about the L

26 l-daily release of excessive Argon-41 directly into a main air inlet for the i

27 Fath building, to fear of theft of weapons-grade uranium by a group intent 28 i

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• 1 on caking a clardestine ficsion explosive ard taking advantage of UCLA's 2

grossly inadequate security, to concern about the herrendous record of 3

inadequate managerial controls and non-compliance with TRC regulations 4

at the facility, to concern about the potential for massive accident er radi 1 gical sab tage-- have been resolved. The vast cajority of the conten-5 tions have not yet seen even the beginning of the hearing process.

If UCLA continues its successful delaying tactics-- ard it is 7

rtainly not in its interest to stop as long as delays permit exterded 8

operation and postpone any possible adverse ruling-- a substantial portion of g

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• E" * *# * * " " '1**1 10 determination of the application. At the rate at which the case is proceeding,

UCIA could succeed in getting the desired result (many years of continued operation) solely by frustrating agency attempts to reach a final ruling on the ultimate safety of that requested right of continued operation. If permitted, this would violate the very purpose of the Atomic Energy Act's requirements for licensing of potentially dangerous activities.

The requirements for sufficient application, safety review, ard public hearing i,t would thus te rerdered meaningless. If significant action is not taken now, the hearing process will cease to have any meaning, ard the Board's authority to regulate the proceedings nullified.

21 Why Couldn't the Decenter 10 Deadline 3e Met?

22 23 n e reas n me December 10 deadline set 4 ee zoard could a t 24 he met is pri=arily the untineliness ard insufficiency of the safety analyses 25 submitted by the Applicant on the key safety issues before the Board.

26 It is the same reason why, four years af ter the first application was sub-2.,

nitted, the safety of the facility re=ains an unanswered question.

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The Applicant requested that the hearing record not close as i

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ccheduled ard that it te granted-a continuance solely for the limited pur-

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2 pose of preparing rebuttal testimony en a few particular matteis identified 3

with specificity by UCLA's representative at TR 3035-9 ard 3112. -The Board granted the continuance for that limited purpose and indicated once'again 4

e x that rebuttal must follow the rules set down by the Board previously-- that 5

'it be restricted to new information not included in CBC's January declarationsi 6

which were essentially C3G's prefiled direct case.

Ary retuttal to that 7

material was to have teen filed last June.

g In filing its " rebuttal" on Noventer 8, however, Applicant went

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• 1" 10 ard far beyord the Board's repeated limitations as to scope of proper

.g rebuttal. Whereas the entire accident analysis (" Credible Accidents for Ar6cnaut Reactors") contained in the acerded application and being liti6ated in the inherent safety hearings was only thirteen pages long, ard the

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' Applicant's direct testimony thereon was 100 pages long, the Applicant filed 140 pages of so-called " rebuttal," the bulk of which was caterial that 16 could and should have been in its direct case last June.

C3G filed 17

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./TR3113 1

20 2/ Through a misuse of su==ary disposition procedures, CSC was forced to 21 prefile what amounted to its direct testimony on virtually every contention mary months before the other parties. C3G's inherent safety panel testimony 22 was merely combined testimony edited from the declarations of its witnesses.

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f AF"il 7' 19833 "ffi"**d I" of September 1 and letter fron Chairman Frye of Septeater 22,"f*"*" * **11 23 1963.

4 The supposed "retuttal" consisted in large acasure of the follouings

1) Dr. Peariran's Vigner ener6y calculations which formed the bois for, but c-were not included in, his direct testirony last Junes (2) It. Catrarder's (n w admitted to be erroneous) Ponte Carlo ard uncollided flux calculations, 26 which forced the hsis for Dr. pearlman's attempt in July to modify the Wi ner E

ener6y conclusions contained in his directs (3) rebuttal to the dispersion o.,

model used by C3C in its January declarations:

neutron flux neasurements whi h should have teen performed long ago; ard 4{ further attack on the jj 28 Eawley fission product release model fron smashei fuel, which UCLA had adopted in its SAR.

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1 objections on those grounds on Hoventer 16.

7 1he 3 card, in a conference call on rovember 21 (meneriali::e1 ty 2

Kenorandum and Crder of EcVenter 23) reported to the parties that, due to 3

the volume of UCLA's proposed retuttal, and the objections thereto of C3G, the November 29 hearing could not be held as scheduled. In addition, the Scard indicated its concern over the lateness of UCIA's " Shutdown Analysis,"

which it said should have been presented last sunmer, and said that it was, 1

in addition to being late, incomplete, providing only a partial answer to the key question concerning uhat the Board said it views as the principal issue in the case. UCLA was therefore directed to supplement the " Shutdown Analysis" with the nissing material, and Staff and C3G to make indeperdent in-depth technical analyses thereof, to be submitted in January.

Why, then, could the December 10 deadline set by the Board not te met? For two reasons: (1) After requesting the continuance for a very 14 limited purpose, UCLA went ahead ard served in the guise of "retuttal" 15 140 pages of material, the majority of which could and should have toen 16 presented last summer as direct testimony, in keeping with the Board's rulings 17 about proper scope of retuttal, and (2) the " Shutdown Analysis," in addition 18 to being late, was incomplete, failing, according to the Board, to sufficient-19 ly answer the central question of how this reactor is to shut itself down 20 in an excursion.

21 In two words, the December 10 deadline could not be cet because 22 UCLA's safety analyses were late and insufficient. Those are the same 23 reasons why four years after the initial application was filed there is no 24 resolution of the safety issues in question. The history of the Shutdown 25 Analysis episode exemplifies the many delays which have so bogged down the 26 proceeding, while the facility whose safety is unresolved continues to operate 27 28 f/ The history and concerns related there are relevant sni should be reviewed in the present context.

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UCM's ShutAcun Analysis: Inte anr1 Insufficient g

-2 In its November 23, 1983. Eemorandum and ceder, 3

4 "We Board indicated its cone'ern over the lateness t UCu's Rebuttal' concerning the ShutdWn 5

Fechanism in the UCu Argonaut,,' which in the Board's 6

view, concerns the principal issue in this case.

7 Regardlessofwhetherthistestir.ony.ispr'shr~~

rebuttal, the Board noted its view that it sh'ork g

have toen tresented last summer. Nonetheless, it, 9

rrovides oniv a vartial answer to the Board's 10 questions which were first posed last summer." (emphasis added) 12 Se Board thus directed UCu to supplement the analysis to provide infermation as to the fundamental questions: "how does expanding water get out and away from the reactor during a power excursion?" (Order at 2) Noting that UCu's witness Ostrander had previously testified that there was no place for the water to exit the reactor in the deflector plate . i,s, region, that the deflector faces a blank wall, the Board directed UCu to once ami for all explain its assertion that the reactor would shut itself down by tossing water out an aperture which faces a brick wall, 20 an avenue of escape which it had previously testified did not exist.y 21 How could the most central of issues-hbw the rdactor shuls itself 22 ~ down in an accident-be so flagrantly unaddressed by the proponent of the 23 license until this late stage of the proceeding? 2e 3oard aska'why this 24 analysis was not presented last sum.er. C3G asks why it was not presented 25 much earlier: 26 in the Safety Analysis Report, amended in 1982; or even more to the point, the SAR filed with the Application in 1980? 27 20 f/ UCu's re-re-revised analysis, despite an inventive attempt to identify open reservoirs in a solid core ti htly packed with lead and graphite, ends 6 up by admitting that there isn't rcon for the 35 liters needed to te removed. Around and around we 60

i .e. n-hr. Ostrander testified-- on the first full day of testimony in 3 the inherent safety hearings-- that he rer.oved from the 1?80 Application 2 a referen e to the deflector pistes, the purpose of which he said was to 3 deflect water up and out of the reacter in the event of an excursion. He 4 said he did not " fully understand" how the water could possibly exit the 5 reactor via the deflector plates. TR 1221. He explained the matter further 7 8 q What was it you did not understard about the deflector plates that led you to not include mention 9 of them in the application? A That large quantities of water could in fact 10 be ejected by virtue of the deflector plates. 11 q could you explain that? A The deflector plates are in essence facin6 a 12 blank wall of graphite. It isn't clear where the water would go. 13 TR 1257 14 This was a catter Pt. Ostrander testified he had teen aware of since 15 1974, when he arrived at the facility. (TR1260). And yet the Safety Analysis submitted with the application for relicensing dam February 28, 1980 for which Ib. Ostrarder said he was responsible, states as follows: 19 Successive Power Excursions 20 It is typical of the Borax ard SIERT reactors, unless the excess reactivity is removed by external means, that an 21 initial power excursion which terminates itself by expellin6 water from the reactor core will be followed by subsequent excursions as the water falls and flows tack into the core. 22 l An exception to this behavior occurs when the initial excursion 23 is vi lent enough tc cause a permanent loss of reactivity by throwing a large amount of water completely out of the reactor tank. In the UCTR the total quantity of the water in the core is 24 small, the submergence of the core is small, ard baffles above the core are so arranged that any unter selach is directed to the out-g side so that it cannot return to the core. Consequently, even a 26 relatively mild power excursion (e.6., one having an exponential period of from 20 to 30 millisec) in the UCTR should result in pernanent self-irduced shutdown of the reactor. 5y these same 97 design features, the possibility of largo successive power excursiona such as those studied in the SFERT project, resulting from the ramp ,y addition of excess reactivity is eliminated. UCLA Application, February 28, 1980,

p. III/A-6, emphasis added

} "hns, the Safety Analysis sutaitted by CCR in its application 2 for renewal shortly tefore expiration of its license in 1960 asserts that 3 safe, self-shutdown of the reactor in a power excursion occurs throcch 4 expulsion of the water via the deflector plate region. The person 5 nsp nsible f r inclusion in 1980 of that Safety..mlysis in tnat applica-6 ti n is Er. Cst W der who, in July of 1983, testifies at the commencement of the inherent safety hearings that he knew at the time of the 1920 7 application that the deflector plates face "a blank wall" and that therefore g large quantities of water could net in fact be ejected via the deflector g plate ngi n, as stated in the applicadon. Ms cmted quite a sur at 10 the hearing, because it was news to almost everyone there. Almost, but not g quite everyone-- Applicant had known for years. A significant portion of the retainin( sessions of hearing were devoted to analyzing what had previously not been analyzed by Applicant-- if the water wasn't going to be tossed out the top (tecause the top had been tricked up), how then was the reactor going to shut itself down, and would it be fast enough to prevent fuel melting? This matter should have l,e ten thoroughly analyzed before-- in the SAR and SER-- rather than on the spot at hearing, but that was the situation forced upon the proceeding by this late disclosure by Applicant. 21 Er. Cstrarder testified that there is no room for copious 22 amounts of water to go if expelled above the core, because of the deflector plate area' having teen tricked up. TR 1258. Because of this exit teing 24 essentially closed off, &. Cstrarder said shutdcun would occur through 25 "other modes of eliminating water from the system," (TR 1259), which he 26 described later (TR 1530) as the rupture disk at the end of a pipe 27 telow the fuel boxes. 28

} Or. Luetke questioned Er. Cstrarder en this matter: 2 3Y Jt.TCE LE2E: 3 a ...you say, near the bottom of page 1257, "The deflector plates are in essence facing a blank wall of graphite. It isn't clear 4 where the water would go." 5 And I guess the purpose of my question is, if there really is no place for the water to go, in the case of a 6 power excursion, you end up uith a potential of e. pressurized water reactor, which I guess we don't want. And so, on page 7 1258, you do say in s.n answer, there is some plate space. i 8 Ard the pertinent question then tecomes, if someone is to rake a realistic, I think, evaluation of the circumstan cs 9 that happen during a power excursion, they would need to know, sort of, you know, is it tuo cutic inches, five cutic 10 inches-- some idea of size of void space. 11 A Well. I think what should te said is that there is a rupture disc in the lower part of the system, and that is where 12 I will count on voidirg tne water, rather thp achievir; a copious flow up through that deflector disc area. TR 1530-31, emphasis added g 15 Thereaf ter, Judge Frye pursued the matter of how quickly the 16 rupture disk would act in the midst of a power excursion, yielding a 17 rather stunning revelation 18 3Y Jt:DGE FRYE: 19 Q How long does it take, if the rupture disc is ruptured. 20 f r the syst a to drain? 21 Well, let ne rephrase it. How long dees it take the fuel texes to drain? 22 A Ch, I wouldn't-- it's perhaps easier to drain by that route 23 than into the dump tank, but it's 20 secords to dump through the three-inch alternate line that goes to the dump tank, and it 24 is 20 secords, and I think that's a reasonable estimate for the time to go through ard empty through the rupture disc. 25 TR 1536 26 S.us, the voiding route (i.e., rupture disk) which Er. Cstrander "will count g on" for shutdoun took seconds to void, while the pcuer excursions urder discussion take place on the scale c ? (111cecords. l

These late disclosures tecame the focus for consideratic 1 2 discussion as the hearings proceeded. If the def1cetor plate region uss 3 essentially ci sed ff, as t. cstraider testified, and if the route he deperded on for voiding.tcok secords.to act, it appeared that chutdown 4 Would be delayed Eany e-folding periods, considerably increasing the energy release ard resultant temperatures. Likewise, if the deflector g plates could not perform their interded function of tossing uater out 7 cf the core region to prevent " chugging," uhat irdeed would prevent g chugging, ard thus additional energy release and potential for damage? g 10 C3G had raised many of these issues in its January declarations ard direct testinony taken therefrom, including the rotential for chugging and the delay in shutdown that micht te occasioned due to water having to be exrelled via the rurture dish area. (See e.g., Kaku declaration, 7 78-9,1:orton declaration I 60). Yet there was no analysis of these matters in UCLA's direct testinony, let alone its cafety analysis report. Eased on the new information supplied by UCIA at the hearir4-- It verbally, not in the prefiled direct-- that the deflector plates faced a " blank wall of graphite", CIC's witnesses (primarily Professor Kaku) sketched out the methodoleEy that should te used to calculate the course 20 of the excursion ard the information that was needed in order to perforn the full calculation. 22 i Prior to ard irdependently of Professor Kaku's testimony on 23 this natter, UCLA had requested a continuance to provide a shutdown e.nalysis. Evidently, that analysis could have been performed any%ine. It should have 2a, teen in the original arplication. It should certainly have teen in the 26 amerded application. And most certainly, as the Icard said in its I:ove:ter 27 23 Kemorardum and Order, it should have been in the sum er testinony. Yet 28 UC1A produced no accident analysis whatsoever of its own when it originally i

applied in 1980, merely adopted the Staff's analyses uhe.n it amended its 3 2 application in 1982 to remove the now estarrassing 1980 naterial, and ignored these issun in its direct. 3 On rebuttal (!) it attects to come forward with an analysis of 4 the me hanisms of reactor self-shutdown in the event of an accident following 5 1* "" "It"***

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6 despite UCIA's own assertions for years prior to the hearing that inherent I self-liniting features provide safe self-shutdown. Thece assertions were g nade without any analysis of what those features are. UCIA requested the g opportunity on rebuttal to provide its first real description of the shutdown mechanism it had so long trumpeted in general but never analyzcl in specific. The hearing designed to determine the effectiveness and rapidity of the shutdown mechanism is asked to keep its record open, and to provide additional time for UCIA to figure out, not how effective the shatdown mechanism is, but what the shutdown mechanism is. And that is why the December 10 deadline could not te met, and why this safety proceeding was not resolved many years ago. UCIA never got around to perforning a safety analysis of the central l,e safety issues regarding its own reactor-- a reactor it has been operating for 23 years without answering or even asking these questions (until the Intervenor and the Eoard began asking then). 21 And what of the analysis finally put forward-- uhich the Board 22 says in its :Tovember 23 Memorandum and Crder is late and provides only a 23 partial answer? 24 Whereas Fr. Ostrander had testified that there was no place 25 for the water to go above the fuel box, his new analysis concedes that 26 the rupture disk below the fuel box is not a reasonable avenue for voiding 27 on the time scales of concern, and that instead water expulsion will occur 28 through the deflector plate region. There is even an elaterate calculation i

m - l i I of rolesse rate through newly-discovered eighth-of-an-inch gsps. 2 The Board noted the inconsistency in the analysis saying, "In an earlier hearing it was testified (Tr.1257 el sec.) tSat the deflector 3 4 plate was really not needed because there was no place for the water to go. - (Eemorandum and order at 2). The Board therefore directed UCIA to clarify 5 6 the text so as to explain fully how water gets out and away, in particular, "Where water exits (between the tight-fitting graphite or concrete blocks 7 orwhere)." (Crderat2). UCLA's analysis had created an eighth of an g inch gap between the deflector region and the lead bricks, but it was an g eighth of an inch gap to nowhere. There may te such a clearance, but the 39 deflector region still faced a blank wall.' Where, the Eoard asked, were 73 35 liters of water to go in a solid core of graphite and lead tricks? 12 UCLA responded in essence, "between the tight-fittin6 blocks." g This despite Mr. Cstrander's previous testimony that "it just isn't within g my feeling of what could be acconplished" that a substantial portion of the core water could te expelled into the small void spaces which are due to the natural clearances in stacking the graphite in "close adjacent i,t proximity" to the fuel. TR 1258. It should te noted that, despite heroic efforts to find (or create) void spaces in a core UCLA asserts to be tightly packed, its analysis ends up by admitting (p. 38) that the void spaces "do not sun to 35 liters and the question of where the water goes is unanswered." UCIA further asserts that "no detailed information" of the kind necessary to answer the question exists. (id.) 24 Why is the cuestion of where the water goes (i.e. how the reactor 25 is to safely shutdcun in an excarsion) still urancuered-- after two safety analyses in Applications, direct testimony by Applicant, and a continuance granted to finally answer the question, with opportunity for supplenent-tion 28 provided when the " rebuttal" fails to answer the question? 'lhy is jhe neu

} nalysis a dirtet refutation of UCI.A's trevicus direct testimony-- that 2 water couldn't exit in significant quantities in the deflector region c.nd 3 would have to exit via the rupture disk? Why is it 1CEd ard we still don't 4 know how-- or if-- this reactor cin safely r,hutdown to trevent a devastatint

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D e an wer is simple: the Ap:11 cant failed to tinely perfor: 6 and file a sufficient Safety Analysis Report, as required. Had the i Application that was filed when the license expired in 1930 been sufficient-- g 9 instead of including xeroxed pages frem an analysis UCIA itself claims was j g r incorrect or inadequate ard which it has disavowed-- or even had the ~ g amended Application in 1982 been sufficient-- instead of merely includira g by reference the Staff studies-- then perhaps in 1984 these issues would g have lon6 since been resolved. g 14 Be Many Applications: !!one Timely. !!one Sufficient 16 me principal reason for the delay in the Beard boirs able to 17 reach a decision as to whether this reactor is safe is the lateness ard 18 insufficiency of the Applicant's safety analyses. It is important to 19 remember that we are no longer litigatirq the Application submitted by 20 UcIA when its license expired. That Application was for $3 54 of excess 21 reactivity, 9.4 kg U-235, with a different set of Technical Specifications 22 ard Emergency Plan. The proposed Emergency Plan, for example, was withdrawn 23 after beira rejected for a score of deficiencies by the ::ac Staff. Ard it 24 must te recalled that the original Application-- whether sufficient or not-- 25 was not even timely filed, with the Security Plan sections filed ten days 26 af ter the deadline for timely renewal applications. 27 "he Application subnitted pricr to expiration of the license 28 contained as its cole acci:icnt ar.alysis two seven-page sections, one dealire

with the cafety of a 0.$ delta k/k excess reactivity limitation ard the 3 2 other demonstratirs doses in the thousands of Rem to the thyroid from cn accident involving an inventory 1/10th that which would be associated with 3 the ten-fold larger power currently requested. There was no smlycia 4 whatsoever of the rotential effects of an earthetake, fuel-handling accident, 5 fire. Winner relea e, r any f the other accidents analy::ed by the other 6

arties in thir. Vroceeding.

-t That first accident analysis in fact demonstrated that the amount g of excess reactivity (2 35 delta k/k) and power level (100 ku) then requested g pr duced fuel nel ng an una ce; y c rad a n ses. en C2C used 10 UCLA's own safety analysis as insis for its contentions, UCLA characteristicall;r withdrew that analysis. Ironically, it had to be introduced as evidence by CEG-- over the objections of the Applicant, which had sworn to its accurscy three years earlier, and of the Staff, which had approved it when submitted for original licensing. When CBG contended that the Application was insufficient in that UCLA had not performed an t.nalysis of the Faximum Credible Accident for its i,t facility, UCLA's representative said the Applicant was 6oing to rely on whatever safety analysis the Staff came up with, adding that, "The 19 Applicant can't go out and do a maximum credible accident [analysisJ for itsuniquefacility."(prehearingconferenceTR337). l 'Ihe day before the final prehearing conference, to close discovery l 22 I and schedule hearing, UCIA threw out its Application filed when its license 24 j This is a matter of some controversy in this proceeding, with C3G 2a,, contending it improperly shifted responsibilities from Applicant, which is supposed to include such an analysis in its application, to Staff, whose i 26 proper role is independent review of Applicant's analysis. In this case, UCLA performed no analysis, and Staff therefore no independent review. In 27 reality, Staff paid for and wrote UCLA'1 accident analysis to replace the one submitted by UCLA itself at the time of license application, and since 28 repudiated. l l s

1 expired _ and adopted the Staff's studies in place of the now-disavowed 2 accident analysis. 'Ihis we might call Application or SAh II. 3 CBG, in its January declarations, pointed out that the Staff 4 studies demonstrated that the reactor could catch fire, release tremendov amounts of radioactivity in & Core-crushing or fuel handling accident, 6 had stored dangerous amounts of Wigner energy, and, correcting for certain 7 erroneous assumptions'in the analysis, could undergo a destructive power excursion. Under instructions from the Board to include any rebuttal to g CBG's declarations in its June testimony, UCLA prepared one hundred pages-- 9 far a re than its SAR I or II-of direct testimony that must be considered 10 Safety Analysis Report III. _g After responding to CBG's h terrogatories over and over again g by saying they did not know, had no such information, had performed no g analyses, etc., UCIA in its direct testimony finally put forth a little bit of the safety analysis that should have been in its original Application. "8 * *

• 16 would prevent a sample worth $3 50 from being inserted or withdrawn through l,e,,

the pneumatic " rabbit" system, he now testified that a sample 1/10th that value could not be so inserted. Whereas UCIA had said it had no information as to similarities and differences between SPERT, BORAX, and the Argonaut and how those might affect power excursion modelling (they had even requested a protective order-denied-- to prevent having to answer because they had performed no such analysis or review), UCLA now put forward, for the first time, an analysis of those reactors and a novel theory to explain their behavior. Whereas UCIA in interrogatory answers said it had no calculations or measurements as to how much Wigner energy its reactor had absorbed, it now presented testimony based on such calculations, though it refused to 27 provide the calculations until the commencement of the hearings themselves, I-

~ + Sus, UCIA filed in June what amounted to SAR III-in numerous respects .} 2 at right anEles with and even directly attacking SAR I and II. Ecuever. it held back much of the material even then. 3 UCIA held back Dr. Pearlman's calculations and only profiled 4 his conclusions: at the last moment of his testimony, Applicant tried 5 to sneak in a totally new conclusion on the Wigner energy Matter (now 6 admitted to be in error). Likewise, it tried to sneak in Nr. Ostrander's 7 Monte Carlo calculations without profiling even a mention of them (they g are also now admitted to have been in error). Equally damaging to thorough g review f Applicant's newest safety analyses and to CBG's due process rights 10 was the witholding of the central element of Dr. Olander's testimony. CEG g thus had no ability to check the references or to prepare cross examinction on a matter that has boccme extremely important in this case. 13 14 So this was the pattern far before the request for continuance: 15 A Safety Analysis submitted and used for two years of delays when its 16 4 contents proved omk rrassing, disavowed. Safety Analysir. II introduced 37 at the last possible minute, again without the work being done by Applicant, yg who merely adopts Staff's studies. Whereas the first SAR had embarrassing 39 e n lusi ns about power excursions and accident consequences, it had no 20 analysis whatsoever of fire, earthquake, Wigner energy, and so on. And g when SAR II is shown to support CBG's positions on several of these matters, UCIA submits, in the guise of direct ' testimony, what amounts to SAR III, .j8 he assertion which was withheld-- that tased on a study of TRIGA 24 fuel, the Hawley release fraction should be reduced by an additional factor of 20-- turned out to be incorrect and irrelevant to the UCLA D. case, as demonstrated by Professor Anderson's rebuttal. But CBG's ability to cross-examine, and the Board's right to an adequate record, 20 were compromised by this improper procedure. 27 28 L 4 r,... -ec,, ...,a -_.m.-__,.m__

1 once again disavowing both SAR I and II, but still holding tack the 2 supposed tasis for the analysis to prevent scrutiny. 3 SAR III-- the June testimony and the additional material 4 (Ostrander's Yonte Carlo, Pearlman's 15 C substitution, Olander's factor of 20, etc.) held tack from profiling-- did not constitute support for 3 6 the analyses UCLA had previously adopted, but rather retuttal to the 7 assumptions used in the analyses, particularly the Battelle study. UCLA's SAR II (Battelle) says 2 7% radioiodine release from smashed fuel- - g UCLA's direct testimony doesn't defend this value tut attacks it as excessive-g ly high. SAR II says graphite is combustible and a graphite reactor fire 10 cannot be ruled out. SAR III (the direct testimony) argues that SAR II is g wrong and graphite is " considered" non-combustible. SARII(Battelle)says g

• h"* *18"*" *"**87 ** **8* **
• "*#8#

13 1 rom Hanford after CBG showed that method.to indicate very high stored energy, UCIA's SAR III direct testimony argues that you can't really use the method of calculation found in SAR II (Battelle). And on and on. 17 Unfortunately, three SARs were not enoV6h for UCLA. The November 8 " rebuttal" material was yet another attack by the Applicant on its earlier 19 positions, and can be considered SAR IV. So when Mr. Ostrander tells us in July not to expect substantial water expulsion out the top of the fuel i boxes because of the surrounding brick walls and to have faith in the rupture disk below, SAR IV tells us to forget the rupture disk because it's too slow and to have faith that the water will exit through the brick walls on top. The Pearlman Wigner calculations and Ostrander Yonte Carlo calculations-- not admitted in July because of failure to timely file them-- reappear in November in the guise of rebuttal. Dr. Forewitz launches a new attack on 27 theBattelle(SARII)releasefractionassumptionsbytryingtolitigateCsI L -.

_19_ I and containment leak plugging issues relevant to power reactors. 2 SAR I (February 1980) was fourteen pages, xeroxed from the original hazards analysis. 3 SAR II (June 1982) was thirteen pages, including by reference 4 the Staff studies. SAR III (June 1983)wasonehundredpages,plusadditional 5 material not timely filed. SAR IV (November 1983) was one hundred forty pages, plus 6 additional material (the Ostrander calculations) not 7 timely filed. 0 And the Board found SAR IV insufficient, failing to provide O more than partial answer to the principal issue in the case. SAR IVa 10 or SAR V can be considered the new shutdown analysis. (Although done II under Board direction to answer apecific questions, the revised analysis I2 'made numerous unrelated changes, deleting calculations, changing assertions, 13 and otherwise md ifying the analysis beyond the Board's questions, a matter 14 towhichCBGobjects.) 15 IO What are the Safety and Legal Implications 17 of these Untimely and Repudiated SARs? '18 A. fundamental purpose of the requirements of the Atomic 19 Energy Act and the NRC regulations is to assure that proposed licensed 20 activities undergo careful review prior to being permitted. To this end, 21 applications are required to provide in sufficient detail the information 22 and safety analyses necessary to assure safe operation if the license is 23 granted. 'Ihe Staff is required to conduct detailed independent analyses 24 of the safety analyses performed by Applicant and forming the basis of its 25 Application. 'Ihe public is permitted to intervene, engage in discovery to 26 obtain information useful in assessing the Applicant's safety analysis, to 27 present witnesses who can critique that analysis, and to cross examine the 28 sponsors of the analysis. For this reason, the Applicant's safety analysis i

I must be timely and sufficient otherwise the Staff is not able to conduct 2 its review, nor the Intervenor its. In the final analysis, the Board is 3 prevented from performing its duty of ruling on the proposed application 4 if the safety analysis is not timely and sufficient. 5 When UCLA forced CBG to go through two years of discovery on a 6 safety analysis it intended to disavow, the performance of the scrutiny 7 mandated by the Atomic Energy Act was obstructed. When UCLA adopted Staff's g safety analyses, the requirements for independent review ly Staff of g Applicant's safety analysis went out the window. When UCLA, in its direct 10 testimony, disavows major portions of its previous safety analyses, attacking yy the Battelle assumptions it had adopted, there is no longer the opportunity 12 f r discovery or independent review by Staff, or by the Intervenor. And when'UCLA, in its supposed rebuttal, puts forward MO pages of new material, 13 y not genuine rebuttal to anything but its own previous sworn analyses and assertions, the entire premise of careful, reasoned scrutiny of Applicant's safety analysis is made a mockery. g What is the injury involved with this behavior? Besides the i. t obvious risks involved with continued operation-- the possibility of catastrophe-- the Board's record is made much, much poorer. When CEG was on notice of what documents Dr. Wegst, for example, was relying on for his assertion that forced air flow was required for graphite fire, C3G could be of assistance to the Board in demonstrating that the documents in question did not say what the witness claimed they did. But when Dr. Olander makes an assertion about a calculation not provided, and a reference not timely included in his profiled direct testimony, there is no way an adequate 2a, record can be made on the accuracy or relevance of that assertion. Shielded material, material not tir.ely made available for scrutiny 2,1 and review, can result in *mportant safety determinations being made on erroneous tases. It is precisely because of these dangers tha t behavior

I such as that exhibited by UCLA is prohibited. 2 3 'Ih* D'l*Y8 4 It should not be necessary to describe in detail the major delays 5 in the proceeding occasioned by Applicant. Continued operation by delay has 6 proved to be a powerful incentive. 7 Two months of discovery was extended into two years by Applicant 8 refusin6 to meet its discovery obligations and requiring repeated Board Orders 9 compelling such compliance. The day before the final prehearing conference 10 was scheduled to close discovery, UCLA withdrew the SAR about which all the 11 discovery had been conducted and substituted a new one. 12 At that prehearing conference, the Board in strong lan6ua6e tells 13 the parties not to move for summary disposition on any but narrow areas 14 about which there clearly is no dispute-- estimating that to do otherwise 15 would result in a delay of at least four months. UCLA and Staff ignore the 16 Board's statements and move for summary disposition on all contentions 17 possibles CBG objects on the basis that the motions were filed for purposes 13 of delay. But the delay becomes a reality. 19 At every opportunity, there has been a withholding of key 20 information and manipulation for delay. In April of this year the Board 21 requested that it be provided by June 1 with visual materials about the I l 22 core internals, saying: l 23 "'Ihe Board has determined that the information that it has received on the physical description of the Argonaut reactor 24 at UCIA is inadequate for consideration of the inherent safety of the system." 26 The Board therefore requested 6raphics showin6 the spacial relationship 37 of the systems which would be under consideration in the hearings, particular-ly the coolin6 system, core structure, shutdown system, and so on.

However, 28 UCLA only provided one or two drawin6s, withholding a series of photo 6raphs 1

1 and numerous drawings, which CBG has only recently obtained access to 2 (af ter a delay of many weeks following request). Se Board still hasn't 3 seen this mterial. The unanswered questions about reactor shutdown 4 mechanisms would have long ago been answered if'UCLA had provided in a timely fashion sufficient information about the core and its components. 5 The brick wall facing the deflector plate region vould not have been a 6 surprise, ani various matters such as available void space would no 7 longer be unknowns. g Rose delays only reward Applicant. Unless delays and untimely g 1"*"##1 **"* ""**"I'1 *** " 1 "8'" *****d*# D# "*1""*d P *** ** ^ ' 10 delays and untimely insufficient material will remain the story of this proceeding, and a decisien on the safety of what may be a thoroughly unsafe facility will never be reached. The Board's mission-ascertainment of the safety of permitting continued operation of this facility-will never be fulfilled unless the incentive for frustrating that mission is removed. 16 17 Legal Discussion 18 }g The Board, in granting UCLA's request for a limited continuance 20 and in setting the December 10 deadline for close of the hearing record, 21 made it very clear that it would tolerate no further delays ani would 22 therefore entertain motions upon a showing of good cause that operations 23 at the facility be curtailed if the deadline were not met. (TR3112-3). 24 In the preceding sections, we have attempted to demonstrate g that good cause does indeed exist for curtailment. The December 10 deadline 26 has n t been met because of UCLA's untimely and insufficient safety analyses. 27 'Ihe history of the Shutdown Analysis, which should have been presented long ago and yet in the Board's judgement remained insufficient, is just a single 28 i , _. _,, +

1 illustration concerning a single issue. But it helps explain why, four 2 years af ter the license expired, none of the major contested issues have 3 been resolved. 4 We have indicated that substantial harm to the public could 5 result if the facility were permitted to continue to operate while serious 6 safety questions remain unresolved. We have further indicated the injury 7 to CBG's due process rights to a speedy resolution of the matters it has g brought before this tribunals as well as the injury to the Board's authority g to regulate the proceedings and effectively carry out its n:andate to decide 10 the safety of the reactor. Good cause exists for curtailment. Without curtailment, the yy incentive for delay may yield many, many more years of operation without a final decision. Without curtailment, we may discover " empirically" g whether serious accidents can occur at this facility before close of the g ' record permits a judicial finding. g As for the Board's authority to order curtailment of operations, g it is a question which scarcely needs to be asked. We will argue below l,e that the Board is 'not only permitted, it is obligated to order curtailment. In any case, it is a question which has already been decided. When the Board set the December 10 deadline, it explicitly solicited motions for curtailment if the deadline could not "for some reason" be met. It did so carefully and with considerable prior deliberation, and no party objected. Certainly the Board was not making an empty. gesture, offering consideration of relief it could not give. The Board had already determined what actions were within its authority to regulate the proceeding and to prevent further delay. The key question as indicated below is not whether the Board has the authority to order the curtailment it had itself proposed, but whether 28 it will have nuch of its authority left if it does not do so.

- 2 14 - + } Connission Poliev: Public Interest Pecuires Exreditious Proceedirps 2 It is long starding Commission policy that t.he public interest 3 requires expeditious proceedings ard decisions, and that Licensing Boards are given broad powers to carry out their mandate of avoiding unnecessary 5 delays. 10 CFR 2 Appendix A, the Commission's statement of General 6 Folicy and Procedure on the conduct of licensing proceedings, states in 7 pertinent part 8 The Statement reflects the Commission's intent that such 0 proceedings te conducted expeditiously ard its concern that its procedures maintain sufficient flexibility to accommodate 10 that objective. This position is founded upon the recognition that fairness to all the parties in such cases ard the obligation 11 of administrative agencies to corduct their functions with efficiency ard economy, require that Commission adjudications I2 be conducted withou; unnecessary delays. 13 The paramount consideration is to be the public interest, and it has long 14 been recognized that the public interest is usually-served by as rapid a 15 decision as is possible consistent with,everyone's opportunity to te 16 heard. Fotomac Electric Power Co., (Dougle's Point Nuclear Generating 17 Station, Units 1&2),ALA3-277,1NRC539(1975). 18 The mandate for adjudicatory bodies to take the measures 19 necessary to expeditiously rule on applications before them is not 90 merely a recommendation-- it is a legal duty imposed upon them by the 21 Administrative Procedure Act 5 U.S.C. 558(c), which requires the 29 ~ agency to set and complete proceedirds within a reasonable time. Indeed, 23 agency failure to timely rule has long been viewed by the courts as a 4 matter subject to judicial review. Section 10(e) of the Adninistrative 5 Frocedure Act, 5 U.S.C. 706(1), regarding scope of judicial review, 9 4" directs the courts to " compel agency action unlawfully withheld or 27 unreasonably delayed." In order to fulfill their legal obligation to manage 98 proceedings so as to reach timely final decisions, Licensing Boards are given i

_1 all powers necessary, as indicated below. 2 3 Broad Powers Given to Prevent Delay 4 10 CFR 2 718 reads in pertinent part 5 A presidirs officer has the duty to conduct a fair ard 6 impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. He has 7 ail powers necessary to those ends, including the power to: 8 9 (e) Regulate the course of the hearing ard the corduct of the participants. 10 11 (m) Take any other action consistent with the Act, this chapter 12 and sections 551-558 of the United States Code. 13 (emphasis added) 14 As the Appeal Board explained in Offshore Power Systems 15 (Floating Nuclear Power Plants), ATA3-489, 8 NRC 194, 204 (1978), the 16 2.718 powers are very troad: "The Commission ard its adjudicatory 17 boards have liberally interpreted the language of 2 718, emphasizing 18 in a number of rulings a licensing board's extensive discretioray 19 authority over the management of licensing proceedings." This is 20 particularly true in terms of the Board's extensive powers in carrying 91 ~ out its duty to avoid delay. In ALAB-321, the Appeal Board emphasized 22 the word "all" in the language of 2 718 granting "all powers necessary" 23 to avoid delay 24 For this purpose, our examination of the Commission's 25 regulations begins and erds with 10 CFR 2 718. In terms, that regulation gives the boards "all powers 26 necessary" to accomplish their " duty... to take appropriate action to avoid delay." Then, as if to L emphasize that "all" powers are conferred, it enumerates certain powers but concludes by giving the teards the 28 authority to "take any other action consistent with" i t

1 the Atomic Energy Act, the Connission's other regulations ard the Administrative Procedure Act. 10 CFR '2 718(1). 2 Kansas Cas and Electric Comany and Kansas City Power aM Light Conany 3 (Wolf Creek Station, Unit No.1), AIAB-321, 3 NRC 293, 302 (1976), 4 emphasis in original, footnote omitted. 5 Rus, Boards have a duty to take strorg action to prevent 6 delay, and are granted all necessary powers under the law to carry out that duty. 8 0 A ratter Within the Board's Authority 10 Staff's special role in licensing proceedings is rather limited: 11 to conduct an independent review of the Application, and to prepare 12 a Safety Evaluation Report and Environmental Impact Report on the proposed 13 action. Determination of whether the Application should be granted, 14 however, is a matter for the Board, which is free to accept or reject 15 the position of Staff as it would any other party. In a proposed 16 licensing action where a Licensing Board has been established, it is 17 the Board which has the authority over the proposed action and matters 18 related thereto. 19 10 CFR 2 717(b) permits the Staff to take certain administrative 20 actions with respect to a licensee who is a party to a pending proceeding, 21 but grants to the Licensing Board authority to modify adn such action 22 related to the subject matter of the pendir4 proceeding as appropriate 23 for the purpose of the proceeding. 24 his regulation has been interpreted to give Licensir4 Boards authority to modify existing licenses granted by Staff, even if the 0 existing license is a Part 70 materials license ard the Board is convened 97 to rule on an application for an openting license. Cincinnati Cas and 20 Electric Co. (William H. Zimmer Nuclear Station), LBP-79-24,10 NRC 226,

228-230 As stated in the Zi=er casa, "[TJhere are matters with 7 2 respe t to which irdependent Staff action is entirely appropriate but 3 which bear enough relationship to the subject matter of a pending 4 proceeding that review by the Licensing 3 card in that proceeding is appr priate. 'Ihe materials license here in question is of that type." 5 An existing materials license issued by Staff is thus an " order" as contemplated by 10 CFa 2 717(b) and is therefore subject to modification 7 4 even by an OL Board. g Whereas there are certain functions over which Boards have g limited jurisdiction-primarily those leading up to the preparation of safety and environmental reports by the Staff-once Staff action has been taken, it is properly a matter for Board review if it bears sufficient relationship to the subject matter of a pending proceeding (M.) In particular, the Zimmer Board drew a distinction between its deter-mination that it had authority to modify an existing materials license and the Board's rulings in the New Ensland Power Company case (FEP, Units 1 and 2), LBP-78-9, 7 NRC 271 (1978) that the Board did not have authority to order suspension of Staff review activities related to an application. As stated in the Zimmer case, in rejecting arguments that 19 New England Power prohibited an OL Board from modifying an existing 20 materials license: 21 g In New England Power Company (FEP, Units 1 and 2), L3P-78-9, 7 NRC 271 (1978), the Licensing Board held that it did g not have the power to exercise supervisory authority over the Staff in the performance of its independent responsibility 24 f preparing an environmental impact statement. That question is not before us here. What we are teing asked b. is to review an action treviously taken by the Staff-a function which the NEP Licensing Board extressly acknowledred that it possessed. Jd,. at 279 d g (emphasis added) 28 Just as the Zimmer Board found that it had the power to actify an

m 1 . existing license, this Licensing Board clearly has the authority to 2 modify the existing licenses under which UCLA operates. -3 Further, the "show cause" procedure of 10 CFR 2.206 is not 4 the appropriate course of action in this case. It has long teen established 5 that this procedure is not necessary when there is a pending case, but 6 instead is to be used when no case is pending and Staff therefore must 7 deal with the request. he determination in an on-going proceeding as to whether to suspend or modify a license does not, however, rest with g Staff, as is indicated in the Union Electric Company case: g 10 A. The Applicability of Show Cause Procedures 11 Applicant's motion papers appear to suggest that intervenor's reauest for suspension of the construrtion 12 Permit should have been nede under the "show cause" procedure .of 10 CFR 2.206. This regulation requires a de

• sion by a 13 high-ranking non-judicial Commission officia whether a new proceeding looking toward suspension of a license should 14 be instituted. It has never been necessary. however, to invoke this procedure in a vending case.

15 g Either the Director of Nuclear Reactor Rsgulation, the 16 Director of Nuclear thterial Safety and Saf96uards or the Director of the Office of Inspection and Enforcement. II (emphasis added) 18 Union Electric Company, (Callaway Phnt, Units 1 and 2), AIAS-348, 19 4 NRC 225, 232. 20 21 Sus, it is clear that 10 CFR 2.206 appeals to the Staff 22 for action are unnecessary when there are pending cases; that Staff 23 actions, when completed, are subject to review and modification by 24 Licensing Boards: ani in particular that a Licensing Board has the 25 authority to modify or suspend existing licenses. 26 27 28

1 } TDELY RE?T4AL PROVISICN3 REGOTRE CURTAIDE!!T 2 So far we have considered the responsitility to prevent delay 3 imposed upon Licensing Boards by the Administrative Procedure Act ard 4 Commission policy, as well as the broad powers conferred on Boards to 5 carry out ths t duty. In pursuit of that responsibility and in exercise 6 of those powers, the Board in this proceeding set a December 10 deadline 7 for final closure of the inherent safety record. The Board put the parties 8 (as well as the people of Ios Angeles, via the lead item on the evening 9 news) on notice that failure to meet that deadline could result in 10 curtailment of operations at the facility. 11 In granting UCIA's request for the continuance the day before 12 the inherent safety hearings were to close, the Board said it would 13 tolerate no further delays ard it deliberately and publicly solicited 14 motions for curtailment, a remedy of its own suggestion, if this last 15 continuance did not " finish" the inherent safety matter. This was by 16 no means the first Board attempt to prevent unnecessary delays, nor even 17 the first warning that curtailment might be the result if delays continued. 18 Le parties ani public were on notice that the Board viewed the public 19 interest factors associated with any further delay as so serious that the 20 only appropriate Board response might have to be curtailment. As shown 21 above,.the action proposed by the Board in soliciting this motion is l 22 within the Board's 2 718 and 2.717(b) powers. The only remaining potential 23 barrier to the action proposed by the Board is the timely renewal application 24 provisions of 10 CFR 2.109 ard 5 U.S.C. 558(c). Review of those provisions 25 makes clear, however, that the timely application rules provide no tarrier 2G whatsoever to the proposed Board action. In fact, it is precisely because 27 f UCLA's failure to comply with the provisions of the timely application 28 rules that curtailment of operations is required. l

1 Background of the Tinely Renewal ATmlication Provision 2 On June 11, 1946, President Trunan approved the Administrative 3 Procedure Act. Section 9(b), now 5 U.S.C. 558(c), deals with licenses. 4 'Ib third sentence of that section provides protection for licensees who 5 filed timely and sufficient renewal applications from the hardships that 6 might occur due to agency failure to timely act on.the renewal request: 7 '4 hen the licensee has made timely and sufficient 8 application for a renewal or a new license in accordance with agency rules, a license with reference to an 9 activity of a continuing nature does not expire until the application has been finally determined by 10 the agency. (emphasisadded) 11 12 As the Attorney General's Fanual on the Administrative Procedure Act 13 indicates, agencies are permitted in carrying out this requirement 14 to "make reasonable rules requiring sufficient advance application." 15 In 1956, the Atomic Energy Commission pronulgated such a rule, requiring 16 that for a licensee to receive the protection of the timely renewal 17 provisions, the application for renewal of an existing license must te 18 submitted "at least 30 days prior to its expiration date." This l'g regulation-- originally 30 CFR 2.103 and now 2.109-was explicitly 20 promulgated pursuant to the APA. (See Federal Register notice, February 21 4,1956). 22 Thus, for a licensee to receive the protection of the timely " *"al Provisions, its application must be both timely (defined in the 23 24 Commission's regulations as filed al least thirty days prior to license 25 26 0/ Attorney General's lhnual on the Administrative Proceture Act, 27 prepared by the U.S, Department of Justice, Tom C. Clark, Attorney General, 1947, p. 92: referred to hereafter as Attorney General's lanual. 28

B } expiration) and sufficient. In other uords, any delay in acting on the 2 license request must be the responsibility of .s agency, not the applicant, 3 which is required to have done everything within its power and is therefore provided protection from delay not of its own making. As will be 4 demonstrated below, in order to find that continued operation is permissible 5 in this case, the agency would 1. ave to determine that the delay in reaching 6 a decision on the Application is its own faults i.e., that the application i before it was (1) filed thirty days prior to license expiration, and g (2) was sufficient in all significant respects. It is evident that g precisely the opposite is the case-- the Application was neither timely filed nor sufficient. And it is largely for that reason-- a matter for which Applicant, not the Board, is responsible-that we stil2 have no decision on the Application and the safety of the proposed renewal. 14 UCLA's Aprlication was 17either Timely nor Sufficient 16 1. Se original Application was not even timely filed. Se timely 17 application rules require that applications be filed at ] east thirty days 18 prior to expiration of the current license. UCLA's license expired 19 Farch 30, 1980. A major portion, however, of its original Application, 20 the proposed security plan required to be included therein, was not l 21 submitted until thrch 10, a week and a half beyond the deadline. 22 he thirty day ninimum is precise, saying not "approximately thirty days 23 before," but rather at least thirty days before." he original Application 24 was not timely filed. 25 26 27 10/sbmittedbyletter,VegsttoReid,Earch 10, 1980 I 0 28 l . _,. ~. -

7 -1 2. The ADDlication now before the Eoard is not the ADD 11 cation filed 2 at license expiration. he Application filed in February and Earch of 3 1980 has been largely withdrawn by the Applicant, and replaced with - 4 different license requests (e.g.,'$3 instead of $3 54 excocs reactivity, 4.9 k U-235 rather than 9.4 kg, and so on). New technical specifications 5 6 ar* ProPosedtan entirely new emergency plan is included: and most importantly, the accident analysis originally submitted has been 7 disav wed and rep aced with an entirely different one. idhether the original l 8 Application was timely filed or not, the Application now pending before 9

• h* " *"*1"8 3 "*d "** " **

10 11 3. Se Avelication filed at the time of license expiration was t 12 insufficient. Bis is essentially admitted by Applicant, t.hrough its 13 withdrawal of the proposed Technical Specifications and Emergency Plan 14 and its disavowal of the 1980 accident analysis (which did not, as 15 mentioned earlier, even consider any accident sequence other than one; thatoneindicatingdanger). Se original Application has similarly been found insufficient by Staff, through its rejection of the proposed 18 emergency plan for a score of deficiencies and its similar rejection of the proposed technical specifiutions, as well as its challenge to the 20 accuracy and relevance of the original accident analysis. And the 1 21 l insufficiency of the original accident analysis-- not to mention the 22 ones which have seriatim replaced it-- has been likewise determined by the Board, which has indicated its frustration that the various power excursion analyses submitted by Applicant.to date have failed to answer -5 the fundamental question of how this reactor is to shut down in an -26 accident-what the Board says it views as the principal issue in the 27 case., Similarly, the Board has written that it "has determined that the 20 information that it.has received on the physical description of the l

-33 1 Argonaut ;eactor at UCLA is inadequate for consideration of the inherent 2 safety of the system." Letter to Applicant and Staff, April 25, 1983 3 he insufficiencies in the original Application and those 4 that followed it-and the delays caused thereby-- have been discussed 5 in detail in previous sections of this motion. Suffice it to say that 6 tha Application filed in 1980 was insufficient, which is why it has been 7 largely withdrawn by UCIA, rejected by Staff, and found inadequate by the Socrd. Likewise, it is why the Board was forced nearly four years g after the Application was submitted to seni UCLA tack to the drawing g b ard t mplete an analysis which should have been complete many years 10 ago. g In short, UCLA's Application was neither timely nor sufficient. g If sufficient when filed, we would not be foer years downstream with g fundamental safety questions still unanswered. The timely application g rule requires curtailment of operations at UCLA because continued g operation is only permissible when the Application was toth timely g and sufficient. It is precisely because of UCLA's untimely, insufficient l.e submissions in connection with its application for renewal oi' a potentially extraordinarily dangerous activity that final determination of the application has teen so long delayed ani that operations must now be curtailed. 21 22 DISCUSSION 23 24 he Timely Renewal Provisions are Designed to Protect Applicants from Delays within the Agency. not from Rose of its own Faking 25 The timely renewal provisions forbid continued operation after expiration of a license unless a sufficient application was timely filed 2,e prior thereto. This is a high staniarti, a standard which UCLA has {

~ 1 repeatedly failed in this case. Furthermore, the timely renewal rules 2 do not permit continued operation if, as in this case, the delays are 3 of the Applicant's making rather than those of the agency. To permit 4 continued operation would require that the Board determine that it is 5 the Board that has been responsible for the delays. 6 m legislative history and applicable case law make clear 7 that continued operation is only permissible when the delay has teen g caused within the agency responsible for determining the Application. Senate Document 248, the Legislative History of the Administrative g yg Procedure Act, 79th Congress, page 35, referring to the last senter.ce in Section 9b of the Act, indicates that the failure must be on the 77 part of the agency, not the Applicants 12 13 he third sentence automatically extends a license in any case in which the licensee has made timely application 14 for renewal but the granting agency fails to act prior to the expiration of the existing license. 15 (emphasisadded) 16 his is made more clear when the timely application rule 17 is viewed in the context of +5e rest of Section 9b, an of which 18 entails protection for licensees or applicants from the harm that 19 can te occasioned by untimely agency action. Page 368 of the 20 Legislative History cited above explains: 21 Section 9(b) deals with licensing. It requires agencies 22 to determine promptly all applications for licenses, prohibits them from withdrawing a license without first giving the 23 licensee notice and an opportunity to achieve compliance except in case of obvious wi11 fulness or emergency, and in business 24 of a continuing nature precludes any license from expiring until timely applications for new licenses or renewals have 2a, teen determined. 26 Rese special provisions are necessary because of the very severe consequences of the conferring of licensing authority 27 upon administrative agencies, ne burden is upon privnte parties to apply for licenses or renewals. If agencies are dilatory

F m -35 -1 in either kini of application, parties are su'bjected to irreparable injuries unless safeguards are provided. Se 2 purpose of this section is to renove the threat of disastrous, arbitrary, and irremediable administrative action. 3 (emphasisadded) 4 hus, the purpose of the timely renewal rule is to protect applicants -5 from disastrous, arbitrary, and irramediable administrative action 6 .due to the agency being dilatory. We rule cannot be used to reward dilatory behavior on the part of the applicant itself. 8 mis is confirmed by the case law. In Pan-Atlantic Steanship 9 Corp. v. Atlantic Coast L.R. Co. (77 S. Ct. 999), the sapreme court 10 ruled that the APA sections involved here were designed to pr,otect -11 applicants and licensees from agency failure to timely act: 12 he Administrative Procedure Act, enacted in 1946, 13 was designed to promote general fairness and regularity in administrative action. Section 9(b) partakes of this 14 purpose by requiring administrative agencies-to act on license applications with reasot.able dispatch-~and "with 15 due regard to the rights or privileges of all the interested parties or adversely affected persons." It also protects 16 persons who have received licenses from their summary revocation, and froa the hardships occasioned by expiration 17 of a lic_ense before the licensing agency has been able to; pass upon its renewal. 18 (M. at 1004, emphasis added) 19 In county of Sullivan v. Civil Aeronautics Soard 836 F. 211096 (1971)J, 20 Judge Friendly described the timely application rule as providing that 21 "the valuable rights conferred by a license for a limited term shall 22 not be lost simply because the agency has not managed to decide the 23 application before the expiration of the existing license." (M. at 1099). 24 ne seminal case in interpretation of the timely renewal 25 provisions is sanicers Life & casualty co. 23.112away (530 F. 2d 625 a 26 (19657. ne court there ruled that W.L y application rule is only 27 ' applicable.where delays in determinitu the of,11 cation arose within the 28 agency, rather than a substantive problem with the application itself ~, v- -e--- ~~v-r=a

} or some other catter over which the Applicant had responsibility. 2 Citing pan-Atlantic __Steamshin Co. ard County of Sullivan, the Court wrote: 3 This reasoning suggests that the kird of case that the statute was meant to cover was that in which time exigencies 4 within the agency prevent it from passing on a renewal application, where an activity of a continuing nature such 5 as radio broadcasting or shipping services is involved. 6 (3ankers, at 634, emphasis added) 7 5.c Court went on to determine that such was not the case in the 8 situation before it,' in which a substantive problem arose with the 9 application, which had to be resolved before the Corps could grant a 10 new permit." And that therefore, after the original permit expired, 11 all rights under it expired with it, despite a perding application for 12 renewal. Bankers is discussed in more detail below. 13 -14 Reneual Anolications Eust be Both Timely and Sufficient: A High Stardard 15 can a licensee continue its licensed activity, many, many 16 years after the eypiration of its license merely by submitting, for II example, an application it daesn't inteni to defend, ard thereafter 18 blocking an agency ruling by continually revising, altering, ard 10 resubmitting the application in different forms, trying over time to 20 fix the numerous insufficiencies in the original application? Can 21 a potentially hazardous activity continue by frustrcting agency attempts 22 to rule? That is the question posed by UCLA's failure to file a timely 23 and sufficient application in this case, ard its continu.ng delaying tactics. a 24 Continued operation is not an automatic right testowed on all 25 licensees who wish renewal. It is a right granted only to licensees who 26 have fully an1 completely performed all of their responsibilities in 27 -presenting to the licensing agency the caterials necessary for the agency 28 to grant the license. The procedure is designed, as shown above, to protect i

1. against agency delays, ' not to reward delays occasioned by Applicants. 2 What is an " application" in the context of the timely app ication rule? Could a one-pase letter requesting renewal but not l 3 4 providing any of the information necessary for deciding the request .g . constitute a timely-filed application and thus permit continued operation 6 until the necessary information is finally provided, perhaps many years . into the future? 7 g The answer is clearly no. The contents necessary in an application are defined with specificity in 10 CFR 50 34. Some of the contents 9 g required are as follows8 11 (b)Finalsafetyanalysisreport. Each application for a license to operate a facility shall .12 include a final safety analysis report. The final safety analysis report shall include information that describes che 13 facility, presents the design lases and the limits on its operations, and presents a safety analysis of the structures, 14 systems, and components and of the facility as a whole, and shall include the following8 15 (1) All current information, such as the results of 16 environmental and meteorological monitoring programs, which has been developed since issuance of the construction permit, 17 relating to site evaluation factors identified in Part 100 of this chapter. 18 - (2) 1. description and analysis of the structures, systems, 19 and components of the facility, with emphasis upon the performance requirements, the bases, with technical justification 20 therefor, upon which sucn requirements have been established, and the evaluations required to show that safety functions 21 will be accomplished. The description shall be sufficient to permit understanding of the system designs and their relation- -22 ship to safety evaluations. 23 (1) For nuclear reactors, such items as the reactor core, reactor coolant system, instrumentation and control .24 systems, containment system, other engineered safety features, auxiliary and emergency systems, power conversion systems, 25 radioactive waste handling system, and fuel handling system shall be discussed insofar as they are pertinent. '26 27 (4) A final analysis and evaluation of the design 28 and performance of structures, systems, and components with

I the objective stated in paragraph (a)(4) of this section and taking into account any certinent information developed '2 since the submittal of the prelininary safety analysis report. 3 4 (c)Physicalsecurityplan. Each application for a license to operate a production or -5 utilization facility shall include a physical security plan. Se plan shall consist of two parts. Part I shall address Vital equi ment, vital areas, and isolation zones, and shall 6 P demonstrate how the applicant plans to comply with the recuirements of Part 73... 7 (emphasis added) 9 he paragraph (a)(4) referenced.in part (4) above refers to 10 '... analysis and evaluation of the design and performance of structures, systems, and components of the facility with 11 the objective of assessing the risk to public health and safety resulting from operation of the facility and inc1.uding 12 determination of (1) margins of safety during normal operations and transient conditions anticipated during the life of the 13 facility, and (ii) tha adequacy of structures, systems, and components provided for the prevention of accidents and 14 the mitigation of the consequences of accidents. 15 16 Aus, it is clear that the timely application protections 17 cannot be obtained by just asking for renewal thirty days prior to 18 ' license expiration. One must submit a sufficient application, one 19 that provides in full detail the information demanded by the regulations. 20 And we know UCLA did not do.that. It has admitted that its security 21 plan is not designed to provide protection against sabotage, as required ty 10.CFR 73 thus the' plan submitted in 1980 as part of the application 23 is insufficient, failing to "demonsi, rate how the applicant plans to 24 comply with the requirements of Part 73." We know that the Board found 25 that "the information that it has received on the physical description 26 of the Argonaut reactor at UCLA is inadequate for consideration of the 27 inherent safety of the system." (April 25, 1983 letter). We know that 28 the safety analysis submitted did not even touch upon fire, Wigner energy, {

1 carthquake, or fuel handling accident, and was deemed inadequate in the 2 dose assessment and reactivity areas by both Staff and Applicant and was 3 disavowed. We know that Applicant submitted that safety analysis in 1980, 4 even knowing that its assertion that shutdown would occur by water exiting 5 via the deflector plate region was incorrect; the pertinent information 6 demanded by 50 34(b)(4) developed since the submittal of the preliminary 7 safety analysis report, i.e. -that the deflector plate faced a blank wall, g was not included, and has led to tremendous delays due to its late disclosure. g he delays in the proceeding have resulted largely because of Applicant 10 trying, in as drawn-out a fashion as possible, to remedy the insufficiencies 73 in the original Application long after a sufficient Application was required to have been timely filed. g 13 he timely application protections only apply when the application for renewal is both timely and sufficient. 5U.S.C.558(c). Se Courts have interpreted the requirement of sufficiency as a very high standard. An application is not enought it must be sufficient in every I. t significant respect. Se Bankers Life & Casualty Co. case is instructive in this regard. In that case, a company which had been issued a dredge and fill permit by the Corps of Engineers brought an action requesting a declaration that its permit rights had not expired during the pendency of a license renewal application before the Corps because of the timely application provisions. Se Court found that those provisions hold only when the delay is due to the agency and not to any insufficiency in the application 2a, itself, firding in that case such an insufficiency. S e Court set a high standard for sufficiency in applications. In Bankers, the company had obtained its permit from the Corps in 1937, a permit which was to expire in December 1960 At the request

1 .of Bankers,'the Corps extended the permit to December 31, 1963 2ankers -2 requested another extension, consideration of which was deferred pending 3 their acquisition of a local fill permit, a matter which took some years. 4 Over the. years, the Corps acquired new obligations under law to consider 5 vari us envir nmental fact rs related t applicants such as Bankers. 6 Eventually Bankers went to court,-requesting a declaration, in part, that 7 its rights under the original permit had never expired, because of the .g timely application rule. 9 The Court ruled that the timely application rule did not 10 pertain in this ase because Bankers' application at the time filed 37 contained at least one deficiency-lack of the local permit. The Court g upheld the Corps' position that the sankers' application for renewal was 13 inc mplete, and thus 5 U.S.C. 558(c) continuation of license during processing of renewal was not permitted. As the Court described the matter: g .15 ...thei Corps also argues that section 558(c) does not apply unless the application is sufficient. At the '16 time the renewal application was filed, it was insufficient because it lacked the required local consents. As time 17 passed, it became more incomplete with the addition of new laws requiring the Corps to take ecologicg1j:onsiderations 18 into account for dredge and fill permits.i4/ -19 W Cur first opinion in this case held that the more -20 stringent requirements of the present apply to 3ankers. See 469 P. 2d at 998. The strong national commitment 21 to improvement of the environment also argues strongly for the application of new laws such as the National 22 Environmental Policy Act, 42 U.S.C. 4321 e_t seo., and the Federal Water Pollution Control Act, 33 U.S.C.1251 23 el seo., wherever possible. (id,. at 633) d 24 The Court went on to say, "we believe that section 558(c) was not 25 designed to cover this kind of situation." Discussing the Pan-Atlantic 26 and County of Sullivan cases previously described, the Court ruled that the timely application rule only applies in situations "in which time 28 exigencies within the agency prevent it from passing on a renewal . ~ ~. -.

'1 application," and that,_ by contrast, time exigencies played no part in 2 the Corps' failure.to act on the renewal. "Instead, a substantive 3 problem arose with the application." (id. at 634). 4 'Ihe Court ruled that " Bankers' application for permit renewal 5 e ntained one deficiency at the time the Corps had to decide whether to 6 extend the permit." And one deficiency alone was sufficient to prevent 7 applicability of the timely application rules ard therefore after the g period specified in the 1960 permit expired, all rights under the permit g expired with it. g If one Could submit an application sufficient in all respects _yy but one, pledge to take whatever measures are necessary to remedy that g deficiency, and still not be eligible for continued use of the expired license while renewal was under consideration, how then can UCLA be g considered eligible for continued use of its expired license when its g app 11 ation (not even timely filed) had so many deficiencies, admitted 15 by Applicant and identified by the Board? 16 17 _ The timely application rule requires a renewal application to be both timely and sufficient. The standard of sufficiency is a high one-- even one deficiency forbids continued exercise of the expired license rights. The Application submitted by UCLA at the time of license expiration was insufficient in a wide variety of ways, failin6 to meet the Commission's requirements for contents of such applications and failing to provide the adjudicatory board with the information necessary to determine the safety of the proposed licensed activity. This has necessitated numerous delays-- and 2a,, thus increased the potential for injury to the public-as information needed due to the insufficiency of the original application has had t.o te late-filed P6ain and a6ain. Applicant has failed to conply with the timely application rule, and that is why the Board was unable to decide the Application long 6

1 ago. Continued operation in light of violation of the timely application 2 rule is thus impermissible. 3 4 Determination of Sufficiency of Application is a lhtter of Eoad Authori+1 l 5 At the first prehearing conference, Applicant attempted to argue 6 that the sufficiency of the application was determined by Staff the moment 7 Staff docketed the application, asserting in addition that if there were 8 any deficiencies in it. Applicant would remedy them as the proceeding 9 progressed. Counsel for Staff explained that the case Applicant was citing 10 merely said the decision whether an application was acceptable for 11 docketing was a Staff function because, of course, there is no Board 12 until the application gets docketed ani a notice of opportunity for hearing 13 is issued. At that point, Staff Counsel indicated, the issue becomes not 14 whether the application is sufficient for docketing, but whether it is 15 sufficient to obtain a license. Ta 17-19. The Board chairwoman commented 16 further on this assertion by UCLA that it is the Staff ani not the Board 17 that determines the sufficiency of an application: 18 FRS. BOWERS: Es. Helwick, we, in discussing some 19 of the filings that have come in, we are aware that the Regents time after time after time in their response to the supplemental 20 petition have said, it is the Staff, it is the Staff, it is the Staff. The Comnissioners have decided that the docket, just as 21 n Gray [then Staff Counse,1J said, was in such shape that it should be noticed for hearing, that it was acceptable as far as 22 it needed to be at that time, and they made the decision that it should be noticed. 23 Now, once the Commissioners decide that a Licensing Board 24 should be appointed to review the petitions, then this Board has the responsibility to see whether the Staff and the Regents 2a,, and the Petitioners are fulfilling their responsibilities. And if we do go into a hearing, this Board will then have the 26 responsibility to look at the adequacy of the application. 27 MS. hTLWICK: Well, I certainly accept your ruling. But I want to make it clear, then, to this Board that we stani 28 ready to amend our application at any point in time that we

I are directed by this Board, or the Staff, for that matter, with an indication that some particular area is somehow 2 inadequate. (TR20) 3 Rus, at the outset of this case, the 3oard made clear that it was its 4 responsibility to determine the adequacy of the application. . Se case which Applicant had apparently relied upon in its 6 mistaken belief that determination of sufficiency of the Application was 7 a Staff function was New England Power Company (NEP, Units 1 & 2), L3F-78-9, 8 7 NRC 271, 278-281 That case involved a motion by an Intervenor to the 9 Licensir4 Board, asking it to suspend the activities of the Staff in 10 preparation of the Staff Safety Evaluation Report. Se basis for the 11 Intervenor c.ation was the assertion that the application war incomplete 12 and should not have been docketed. The NEP case made clear that 3oards 13 have limited authority over Staff review functions leading to preparation 14 of the Staff's SER, and thus no authority to tell them to stop conductir4 15 such a review. The determination whether an applice, tion is acceptable for 16 docketing-- and thus the beginning of the Staff's review-- is a decision 17 for Staff to make. Se determination whether the application is sufficient 18 in meeting the Commission's regulations for applications (as opposed to 10 sufficient to commence Staff review) is, however, a Board responsibility, 20 as is evaluation of the Staff SER once the review is completed. Cnce 21 docketed and a notice of opportunity for hearing is published and a licensir4 22 board established, it is the licensing board's responsibility to determine 23 the adequacy of the Application. 24 he NEP case refers to the CCRI v. TRC court decision which held 26 that no statutes or regulations are violated by the practice of docketir4 27 incomplete applications for licensing. mat case, of course, referred to 28 an application for an initial licensing, not for reneual. There is no rule i

1 ' requiring timely and sufficient' initial license applications: _the rule 2 applies only to renewals. Thus, docketing inconplete applications for an - 3 initial license can cause no public hara, because the proposed activity cann commence util the application is-finally sufficient. No delay in 4 -5 making the application sufficient can cause risk to public health and -safety, as the activity is prohibited until sufficiency is achieved. g -Not so with renewals. In the case of relicensings, the activity 7 under the existing license must stop when the license expires, unless and g only unless a sufficient application was filed in a timely fashion prior to g expiration. Like initial licensings, insufficient renewal applications can g be supplemented and deficiencies remedied as the proceeding progresses, g but the protection of the timely renewal prc, vision is granted only when the application was sufficient and timely filed. The reason is obvious-- application insufficiencies cause delays in resolving whether the proposed action can be coniucted safely. In initial licensings, those delays cannot put publich health ani safety at risks in renewals, that is not the case. Only those delays occasioned by agency slowness-not application untimeliness l.e ani insufficiency-can justify continued. operation past an expiration date. 19 Cne should note that the 5 U.S.c. 558(c) provisions for license suspension are not applicable here. Tnose provisions-- separate from the license renewal provisions-- state: 23 Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the with-24 drawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedir4s 25 therefor, the licensee has been given-- (1) notice by the agency in writing of the facts or conduct which may warrant the action: 26 and(2)opportunitytodemonstrateorachievecompliancewith all lawful requirements. 27 Those provisions relate to facilities which have licenses which have not s '28 expired, and guarantee them a warning tefore license revocation can occur,

I 1 except in cases of wi11 fulness or where public health ani safety requires 2 otherwise. 'Ihe Board has Given UCIA its warning-the Decenter 10 deadline 3 and explicit iniication of potential consequences if the deadline could not 4 be met. As the Attorney General's Manual on the APA states, "While the 5 warning mast be in writing, it need not take any special form." 'Ihe 6 transcript of the h aring is thus sufficient written record. Furthermore, 7 the problems addressed by the Board and which continue are both willful g and represent potential risks to public health and safety. However, the dispositive factor regarding this provision of 558(c) and the related g suspension rules of the NRC is that they do not apply to renewal of licenses. As the Attorney General's knual states: g 12 Section 9(b) (5 U.S.C. 558(c)J is composed of three sentences, each of which is natually 13 exclusive of the others. The first sentence applies specifically to applications for licenses, the second to suspension or 14 revocation of licenses, ani the third to renewals. (P' 15 16 On page 91, the Attorney General's knual makes clear that the provisions 17 dealing with suspension or revocation of licenses apply only to entities 18 ~ to which the first or third sentence of the section do not apply, i.e., 19 only to those entities who are neither applying for a new license nor for 20 renewal of an old one: 21 8eco[ndjsentence do not pply to renewal of licenses. j!t is clear, too that the provisions of this 22 Benewals are treated specifically in the next sentence. 23 This is made clear in the case of Hamlin Testirg Iaboratories v. USAEC 557 r. 2a 632 (1966)J. nan 11n had a license to use radioactive materials, issued on June 30, 1960, renewed on Fay 25, 1961, and expired Eay 31, 1963. 96 Hamlin filed an application for renewal on April 25, and was thus permitted to operate fourteen days (as opposed to the four years so far in the UCLA 28 case) beyond the expiration of the license. On June 14, 1963, the renewal _ l

E I I appliestion was denied. Hamlin alleged that the Commission should have 2 followed procedures applicable to withdrawal, suspension, revocation or 3 annulment of license, or regulations dealing with suspensions, modifications, and revocation of existing licenses. The Court ruled that those provisions 4 5 were n t applicable in the case of a license renewal proceeding. (It sh uld be noted further that amor4 the reasons resulting in the Commission's 6 action were repeated violations of NRC regulations still, decision was 7 taken not as enforcement action but in the license renewal context.) g 9 ccmSION EGANG N EMAL ANCAN PROUSIONS 10 11 The purposes of the timely renewal application rules are 12 perhaps best summed up in the Attorney General's Eanual on the APA. 13 After repeating the language of Section 9(b) relating to license 14 renewals, including that continued operation past license expiration 15 is contingent upon having made " timely and suffic'ient application," 16 the AG's Eanual goes on: II It is only fair where a licensee has filed his application for a renewal or a new license in ample time prior to the 18 expiration of his license, and where the application itself is sufficient, that his license should not expire until his 19 application shall have been determined by the agency. In such a case the licensee has done everything that is within 20 his power to do and he should not suffer if the agency has failed, for one reason or another, tc consider his atplication 21 prior to the lapse of his license. 22 (p. 91-92, emphasis added) 23 Thus continued operation is permittM only when the licensee "has done 24 everyt hing that is within his power to do" and it is the agency that has 25 failed in its licensirs duties. If the 3 card feels the delays that have 26 occurred are of its taking and the UCLA application filed in 1980 wac both 27 timely ani sufficient, then the reactor is permitted to continue to operate. 28 But if the delays are not of the Board's doing, and if the Application filed ._._J

1 . in 19E0 uas untimely and/or insufficient, or the safety analyses now bein6 2 liti6ated were filed subsequent to the 30 day period prior to expiration 3 required by the rule, then the law ard the regulation require curtailment. 4 .UCLA did not and has not complied with the rule requirin6 its application 5 to be timely and sufficient; it has not done "everything that is within its 6 p wer to do";~ it is four years since the license expired and the Board has 7 - been unable to deternine the major issues related to the application because g the application has been continually withdrawn, modified, and contradicted, g and because the Board has repeatedly found the information provided inadequate to make the necessary determinations. Continued operation is impermissible. g 11 APPROPRIAIE REEEDY 12 13 1he Board solicited this motion if the December 10 deadline 14 it imposed could not for some reason te met. In so doing, the Board 15 indicated the remedy it felt appropriate- " curtailment of activities"-- 16 but did not define that remedy specifically. Upon inquiry by CBG as to 17 what the Board had in mird when it said it would entertain motions for 18 for " curtailment," the Board responded as follows... 19 JUDGE FRYE: I'm not going to tell you what motion to file. You may file whatever motion you want. ' JUDGE LUE3KE: I think we could help with some suggestions, 21 and one is-22 JUDGE FRYE: No. Let's let them. i 23 JUDGE LUEEKE: You prefer not to? Ckay. 24 JUDGE FRYE: I would like you to tell us uhat you think the record at this etate would require. 26 C3G has given careful consideration to what the appropriate remedy l would be to this situation, four years into a proceedin6 to determine the l 28 l l

.~. l I safety of continued operation of a facility uhich continues to operate 2 all the while. C3G has carefully reviewed the record to this point, 3 as per Judge Frye's request, to inform the Board what we think the 4 record requires. We think the following points are important in making 5 that determination: 6 7 (1)TheBoardhasst".11notbeenabletodeterminewhatitsaiditviews g as the principal icsue in the hearings to dates how-- or if-- this reactor g can shut itself down safely in a power excursion. The most fundamental 10 question of shutdown mechanism-- which must be answered before the effective-ness of that mechanism in preventing a destructive reactivity accident can 77 be assessed-remains unanswered. Will the reactor shut itself off by 12 13 expelling water through tiny cracks in a wall of lead bricks-a pathway explicitly denied by UCIA's own witness in July? Cr will it shut itself g

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15 has testified is too slow-acting? Cr will the excursion be self-limiting by an RDA-- a Rapid Disassembly Accident in which the exponentially increasing l,e power stops skyrocketing only by dispersal of the molten fuel in 'a steam explosion? 20 (2) The 3oard still has not been able to determine even how much reactivity would be availabic for such an excursion. Even knowing the shutdown mechanism-- which remains unknown at this stage-- the Board doesn't know how much reactivity can be put into the system. There is testimony of record that bowing effects alone could contribute $2.00 extra reactivity to whatever 2a, amount was inserted initially. Even if we could reliably estimate reactivity effects at the Ar6onaut from reactivity effects at reactors of different designs-27 which st$bstantial testimony of record indicates cannot be done-- the Icard 28 L

49_ } has to date been unable to determine how much reactivity can be put into 2 -the system. 3 4 (3) he most fundamental input parameters for this reactor-void coefficient, [/$, flux, and t,he like are not reliably known for this reactor. There 5 .g is evidence of record of widely divergent calculations and measurements for 7 each of these fundamental core parameters. Even were the Board presented with a reliable method'of estimating the courae of an accident at the g Argonaut from data obtained at SFERT (for power excursions) or Hanford g (for Wigner energy storage), it has no reliable, set, uncontroverted core parameter data for making the determination of safety or danger. g 12 (4) %e people responsible for the daily safe operation of the reactor have made repeated, extraordinary errors on the record to date. The reactor manager could not even explain the worth of the control blades or whether the reactor could go critical with only one control blade out of the. cores he extrapolated from a 2 inch cadmium sample to a 2 foot l,e,, sample as though it would be worth only three times more, a position he later had to recant he boldly announced that it takes only 20 seconds to drain water via the rupture disk when the accident under evaluation occurs in milliseconds. Other hitnesses responsible for safety at the facility have made entarrassing gaffes of great safety significance-the official who claims to be in charge of fire safety, for example, apparently thought no fire protection was necessary for the Pu3e sources under his care because he thought the intermetallic compouni could not undergo an exothermic reaction. The same safety official testified that he had not unierstood the chart he had relied on for his 27 assertion that graphite combustion cannot occur without forced airflow 28 i

9

• 1 ard that indeed the chart said no such thind. And on ard on.

Thus the 2 people in charge of safety, while safety is being delated, have already 3 admitted major errors on key safety questions. The safety of the public 4 is seriously at risk while the Board tries to determine whether they are 5 sufficiently competent to be worthy of the public's trust. 6 7 (5) were is no Emergency Plan whatsoever involving any response outside g the reactor room itself. UCLA contends there is no need for any plan 9 that prepares for contingencies outside that room, yet reliable evidence 10 of record indicates serious risks to the public in case of accident and 11 the need for a workable emergency plan. If something untoward were to 12 happen now, with the emergency plan issues not even litigated and no 13 emergency plan in place, tremendous unnecessary casualties could rasult. 14 15 (6)-similarly, there is no fire response plan as 'to how to fight a fire 16 inv lying the reactor. The Board has not yet teen able to rule whether 17 Dr. Wegst is right that graphite is " considered" a non-combustible material and that there is no need to figure out ard prepare how to fight 18 a graphite-uranium / aluminum-magnesium fire at the facility. Were such 79 a fire to occur-- be it accidental or through simple arscn-during the g pendancy of this proceeding, a Windscale-type radiation release in a g tremerdously more populated area could occur, with the potential for 22

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23 - 24 (7) here is no sabotage protection plan. Were intentional destruction to g occur while the security issues are still unresolved, testimony of record g already indicates people up to 75 kilometers from the site could te exposed ,2, 1 _to doses in excess of legal limits with monstrous doses closer in. I

.(8) UCIA continues to argue that it is required only to report theft of _y 2 weapons-6rade material at the facility, not to take measures sufficient to 3 prevent such theft. 'Iheft or diversion of highly enriched uranium, suited for construction of a clandestine fission explosive, would have consequences of 4 international proport on. 5 6 (9)2efacilitysitsvirtuallyonthecross-hairsoftwomassiveearthquake 7 faults in an extremely seismically active area. Applicant ard Staff's own g study indicates radioiodine releases of 2 7% from crushed fuel. They now g attempt to dispute their own study testimony by Professor Arderson g indicates th 2 7% estimate might in fact be low. Se Board has yet to be presented with any empirical data from crushed fuel of any sort, let alone U-Al plates. It has three estimates before it-- UCIA's ard Staff's 2.7%, which results in doses greater than 100,000 Rem to the thyroid close in and doses out many kilometers in excess of legal limits: UCIA's new attack on its SAR estimate, tased on assertions about unsmashed fuel of a totally different types and Professor Arderson's testimony about micro-l,e fractures, stress-risers, ard the like resulting in releases far greater than UCIA and Staff's original 2.7%. In the meantims, an earthquake could occur at any time and we could empirically discover who is right. 21 (10) Dr. Pearlman now estimates that a Wigner energy release could result 22 in an increase in temperature of 175 C. Testimony from the panel including Dr. Kohn, Professor Kaku, Dr. Wayne, Professor Arderson, Mr. DuPont ard 24 others indicates that Dr. Pearlman's input data are in error by roughly 25 an order of magnitude, due to errors made in consideration of operating 26 temperature, storage rate, location of fast flux peaking near fuel not 27 core center, etc. Wigner release could thus ignite the core or melt the 28 fuel if the C3G panel is fourd right by the Board-- ard could contribute

I substantially to the course of another accident ty addin6 heat to 2 an event that might not of itself be sufficient to cause fuel damage 3 even if the Soard were to finally determine Wi6ner energy storage to be somewhat less. Se 3oard has made no determination and thus 4 e ntinued operation could result in finding out the hard way. 5 6 (11) he testimony of record indicates the core inventory-- even 7 with intermittent operation-- is so large, given the lack of containment g structure or exclusion zone-- that inventory limitations provide no g inherent protection whatsoever to the public. Site characteristics, 10 particularly the nearby classrooms and crowded structures all around g the reactor, exacerbate the public health risks of accident or of normal operaticns. 14 (12) he reactor continues to release excessive quantities of Ar6on-41 directly into the rain air inlet for the nearby Fath tuilding, tecause of unfortunate placement of the reactor exhaust stack lower than the l,e surrounding buildings. This issue has not even begun to be heard, yet the exposures to hundreds of people in the Fath 3uilding go on daily. 20 (13) To Environmental ~ Impact Statement has been done. If C3G's contention 21 X is eventually founi to be correct, asserting that such an EIS is necessary, 22 many more years of delay will have resulted without adequate review of the environmental impacts of the proposed relicensing. If C3G is right that those impacts are substantial, those impacts will have occurred prior to their assessment and a determination as to whether they are warranted. 26 The impacts would te irreversible the dama6e done. 27 28 L

l-1 (14) UC1A continues to rack up violation after violation in its 2 inspections. The contention as to UCLA's regulatory compliance has 3 yet to see the beginning of hearing, as is the case with the contentions 4 atout inadequate maintenance, poor cana6erial controls, ard the like. 5 Yet those violations ard ind managerial controls ard caintenance 6 continue, ard the public recieves the potential impact of sane. 7 (15) The primary tasis upon which both UCLA's anerded application ard g the Staff's Safety Evaluation Report rest-- the 3attelle Study ard its g 10 sp ns r W. Sean Hawley-- have 2en t a very large extent discredited, in no small measure by UCIA ard Staff themselves as they try to distance y) themselves from its conclusions ard assumptions. Thus the fourdation 12 for the safety analysis of both Staff and Applicant is gone. 33 14 15 'Be Record Requires Shutdown 16 There are really only two possible solutions to the problem of 17 continued operation of this facility uhile its safety remains in doubt: 18 shutdown, and severe limitations on operation. It is C3G's view that 10 the record without question requires shutdown-- in fact, nothing but shutdown 20 is permitted unier the statute because the violation of the tinely ard 21 sufficient application provisions makes continued operation af ter expiration 22 of the license illegal. 23 7ny is shutdown required? 2ecause a destructive power excursion 24 could occur tomorrow. A reactor operator or a student could rake a mistake-- 25 rade all the more likely because of their unsupported telief that the reactor 26 is inherently safe-- ard we could experimentally deternine the radiological 27 consequences of an SL-1 type accident in 'iest Los An6eles rather than the 93 ~ Idaho desert. I

n 1 Why is shutdown required? Because people' cometimes tehave

2 like idiots, and the Board is unable to determine at this stage that

'3 this reactor is idiot-proof. 4 Why is shutdown required? Because fires happen, and UCLA 5 has no plan for fighting a reactor fire, which could release more 6 radioactivity than any other accident. 7 Why is shutdown required? - 3ecause there is no sabotage pro-8 tection plan, and only a plan to report theft of highly enriched uranium, L9 and the' consequences of either action would te extraordinarily grave. The '10 3 ard may at a me_ time in the future determine that the plan needs various improvements to be acceptable, but sabotage or theft could occur long yy before then.- 12 Why is shutdown required? Because every day that the reactor operates, excessive amounts of Argon-41 are released out an exhaust stack shorter than nearby buildin6s and directly upwind of a main air inlet for the Fath 3ailding, causing potential for serious ani unnecessary radiation g exposures and t,hus public injury on a daily basis. l,e, Why is shutdown required? Because an earthquake could hit at any time, and the radiation exposure that would result could injure many many thousands of people out tens of miles. Why is shutdown required? 3ecause the law requires it. Continued operation after expiration of a license is forbidden by law unless the renewal application were both timely and sufficient. As demonstrated above, UCLA's was neither. It makes no sense whatsoever, and poses tremendous public safety risks, to keep this facility operating while its 20 safety is in serious question; ani where the only way it is 13kely to te granted a new license is with substantial conditions not currently imposed. 27 he long and the short of it is that this reactor could blow up long before 28 the 3oard is permitted to deternine whether it could blow. The potential .. - - - - -, ~.... - -, - - -.. - - -. -

l 1 -consequences of continued operation without an affirmative firding by the 2 3 card that it is safe to do'so make continued operation unacceptable. 3 Further, there will be no incentive for UCLA to stop waffling ard delaying 4 the proceeding. If the Board does not implement the curtailment which 5 the Board itself proposed, the contested issues in this proceeding will 6 never be resolved: the Board will never complete its assigned tasks and 7 the public will never be provided the protection which is their right. 8 g Severe Linitations on Operations 10 It is recognized that the Board, in soliciting this motion, yy may have had in nind some curtailment of operations short of complece shutdown. We believe the timely application provisions do not permit an 12 13 a ti n short of shutdown, and that the record in this proceeding irdicates 74 the public. interest will not te adequately protected by anything less. 15 We a n t see how operati n f this fa 111ty an be permitted to continue as 1 ng as the Licensing Board has not determined whether it is safe to do so. 16 Given the magnitude of a potential accident at the UCLA reactor, g 18 as indicated in the record to date, only severely curtailed operations could conceivably even pose a possible alternative to complete shutdown. yg 1he two principal components of Curtailment (1) a limitation on power (so as to reduce fission product ares g inventory to such a level that were there an accidentwhile the proceedings continued, public consequences would be acceptable because there was little in the " bottle" to get out if broken) ard (2) a limitation on excess reactivity (to reduce the potential for a destructive power excursion). 2a There might be a temptation to bring the facility back to its configuration of the early 1960s-- 10 kw ard 0.65 delta k/k. While this might in the short run reduce somewhat the potential for ard consequences of a serious accident at the reactor while the proceeding progressed, sufficient,

I evidence of record now exists to irdicate that nerely returning to these '2 .1962 limits would not solve the problem. 3 A return to the design limitations and self-limiting features 4 of the original Argonne National Iaboratory Argonaut, n the 5 might well resolve-- permanently-- many of the issues in this proceeding. 6 ne original Argonaut at AEL used a low enrichad oxide fuel, offering 7 substantial protection against both fire ard power excursions, particularly 8 with the very small amount of excess reactivity available. And it operated g at low power, normally 100 watts (1/1000th that of UCLA's). Its inherent 10 negative temperature coefficient was so designed that sustained operation yy above 1 kw resulted in self-shutdown, making it impossible to generate 12 mu h of a fission product inventory. (see CEG Fanel i testimony I. 9). 13 Furthermore, it had a substantial exclusion zone, which resulted in a 14 further reduction of effective doses by a couple of orders of magnitude. To see how little a reduction of power to the 1962 10 kw limit would yield in terms of resolving the interim safety problems, an examination of the CEG Fanel IV testimony data is useful. At 100 kw, 77 . doses of approximately 1.4 million Rem to the thyroid result at the yg facility bourdary from a 25% radiciodine releases doses in excess of yg legal limits extend out 75 kilometers. Reduction of inventory as from 20 a ten-fold reduction in power would thus result in doses of 140,000 Rem g to the thyroid close in, and doses is excess of legal limits out 7 5 kilometers (see Panel IV, Table 1, page 6). A reduction to 1 kw would yield doses of 14,000 Rem at the facility bourdary and in excess of legal limits out about 750 meters. (hereareapproximately50,000within 2a,, 750 meters of the reactor.) Fission product inventory from a 100 watt 26 pcuer linitation would still result in doses of 1400 Rea e' the tourdary 2,e and doses in excess of legal limits out about 200 meters from the facility. (It is readily seen why the 100 watt operating level of the original ail

-g-1 Argonaut, with its exclusion zone of several hurdred feet, was appropriate.) 2 Similarly, a 10 watt limitstion yields exposures in excess of legal limits 3 about 80 meters from the reactors a 1 uatt limitation about 30 meters 4 away. Cnly a 0.1 watt limitation would meet legal limits. It is nonetheless clear that a reduction in pernissible 5 p uer reduces potential consequences proportionately, althou6h the 6 long-lived isotopes such as Sr-90 ard Cs-137 would be unaffected in the 7 short-run by such a power limitation. It is also nonetheless clear g that a power reduction to the watt range ic required if the public is to g be protected by virtue of inventory reduction while the Board determines uhether the bottle can break. g A power reduction to the watt range would bring the reactor g hack to the limitation of the original UCIA license (it was brought to 70 kw only via a license amerament, ard then via another amendment to 100kw). Such a power reduction would reduce in the short run potential risks from c11 accidents except power excursion, since power excursions generate their own fission product inventory independent of previous i,s history. Whereas previous destructive excursions such as Borax I and STERT I may have resulted in relatively small releases due to their cores having been clean (see Panel I oral testimony to this effect, ard rebuttal testimony by Prof. Anderson on effect of burnup on release fraction), this would not be the case with a power excursion with old fuel at UCLA, even if the recent past was at low power. To provide protection to the public while the larger safety issues are bein6 resolved, fission product inventory would have to be kept low by a very substantial power reduction durir4 25 normal operation, ard a power excursion must also te prevented by significant 26 excess reactivity limitation. 27 As a practical matter, the latter may be quite difficult. As 28 i

~58-indicated in C3G's Panel I direct and rebuttal testimony, even with, say, 3 2 a $1 limit on paper, far more than that amount might be available, throu6h errors in measurement ani loading, or bowing effects in the midst of an 3 excursion, or other positive effects. 4 however, it is Clear that the reactor can operate with far less excess reactivity installed than it has now, and that such a reduction would produce at least some increased level af safety. Whether it is a 7 sufficient level of safety or not is another matter, as is iniicated by g the destructive power excursion incident in Argentina a few months ago g in a zero power facility which should have had very little excess reactivity available. (The accident occurred when an experienced operator made an error, moving fuel bundles without first draining the water.) The UCLA reactor operated for its'first six years with about 80c worth of excess reactivity, and could operate uith considerably less, particularly if the other measure discussed above, power reduction, were adopted. The only excess reactivity needed would be the 25e allocated to seasonal changes and about 15e for experimental samples. (Thisisbasedon i,s Mr. Ostrander's testimony at page 38 of his direct, and his assertion at page 35 that the average worth of a rabbit is 10g the temperature defect in going to full power uould not exist with a low power limitation, nor 20 would the burnup and poisoning allocations reduced excess reactivity 21 loading would markedly reduce any reactivity allocated to positioning 22 of the " reg rod," because obviously 90s wasn't needed when the total 23 excess reactivity was about 80s in the 1960s.) In short. the facility 24 could run just fine with about 40-50e excess reactivity installed. This 25 would not eliminate the potentially serious problems of additional reactivity 26 available-- through error, bouing, or positive sample insertion, or 27 .otherwise. (Some of these problems do have solutions: they are, however, 28 unrelated to curtailment.) ._..g

1 a .p. 7

1

'In sus, curtailment would of. necessity involve substantial 2 reductions in permitted power level and permitted excess reactivity 3 -loading (necessitating cool-down and fuel recoval, reducing ccre loading, 4 substituting dummy plates for 'some fuel plates). The facility could operate 5 n 40-50g excess reactivity without trouble, which would substantially 6 reduce risk of destructive power excursions, though not eliminate it. 7 Reductions in power to the kilowatt range do not provide sufficient reduction in inventory to acceptably reduce consequences of accidents g reducti n t thewattrange(quiteacceptablefortheinstructionaluses-9 ~ of the facility claimed to be the primary function) would be necessary. g Essentially, curtailment, to be effective, would require g returning the UCIA reactor to something between the inherent self-liniting 12 features of its original license (power in the watt range, excess reactivity I in the sub-dollar range) and those of the original ANL Argonaut. g It ought to be noted, orce again, that a permanent (as opposed tomerelyshortrun)resolutionof95%ofthecontestedissuesinthis g case could be attained by a return to something similar to the self-liniting g design features of the original AFL Argonaut with an additional alteration or two. It should be clear, however, that an excess reactivity limit of .one dollar on. paper and a 10 kw power limit, for example, do very little to alter the potential public injury associated with continued operation while these safety issues are being resolved. Given several dollars of additional reactivity potentially available beyond the amount installed on paper, and given the consequences associated with a 10 kw inventory in a highly populated area without exclusion zone or containment, curtailment . of that sort would not protect as required. 27 There appea:s to C3G to be only two alternative that can resolve

3 I the problems currently faced. The reactor can te shutdown until the 2 application is determined ard the safety of the proposed renewal resolved. 3 e p wer can to reduced to the 1 watt range ard excess reactivity to the 4 40-50c range, a situation where the instractional activities of the facility, 5 which are claimed to be its primary purpose and reason for existence, would

• • "# # ' **d' 6

It is CEG's view that the timely renewal requirements cardate 7 shutdown. The facility is not permitted continued operation tecause it g did not comply with the requirements to file a timely and sufficient g application. Continued operation is statutorily impermissible until ard g unless the Board finds it safe to renew the license. g If the Board disagrees, ard determines curtailment to be satisfactory, the record to date irdicates that the reduction in power and in excess reactivity must be very severe. 15 C3G notes that, from a practical stardpoint, it would m-Ae considerable sense, particularly in li6ht of its previous two curtailment I,t notions on security grourds, for curtailment or shutdown to te ordered now, fuel allowed.to cool down, then shipped off-site in by or June at the latest in preparation for the Olympics; and, as an incentive to eliminate further delays and as protection to the public, for the fuel not to te returned until the safety and security issues are resolved, if resolved favorably to Applicant, ard corditions, if imposed (such as improvements in security or changes in plate spacin6 or conversion to TRIGA IEU), are in place. Curtailment or shutdown now would make possible off-shipment for the Olympics; fuel off-site would then spur resolution of the issue 26 of the safety of the facility ard the necessity of any modifications. If 27 favorably determined, modifications could then be cade prior to return of 28 old fuel-- perhaps with redesigned spacin6-- or provision of new fuel

~ 7 with more inherent safety. 2 Comreting Harms 3 4 he University has repeatedly isserted that the only purpose 5 for the reactor is instruction. In the Contention II hearing, Mr. Cstrander -6 was asked: 7 Q You testified, did you not, that the only purpose for the g reactor being there is the class room instruction?

• "* 1* "
• *" d"** * ^ I "

9 'A Yes. Q And, therefore, the only purpose for the reactor operation would 11 be those thirty to sixty hours of operation that are reported in your reports to the NRC? A I said, the primary and principal and virtually only justification 13 for the reactor being there is the education. Now, there are some purposes with those other radiations. Q Eut they are secondary, in your view? A Yes. 16 TR 153-4 17 And a little later he was asked: 18 19 Q You indicated that the primary purpose and prirary-- the central mission of the reactor is education. Is that correct? 20 A Yes. 21 L Would there be therefore, anything but an in-idental effect on 22 that primary mission, were the university to be forbidden from engaging in those other activities. A Fo. 24 TR 162 25 There is evidence of reconi in the Contention II proceeding that the 26 hours of reactor operation for that " primary mission" of instruction 27 are only one to two hours per week, and that those hours are primarily at 28 - -,.,. - ~,,. -. - _,...

1 with more inherent cafety. 2 Comneting Earms 3 4 The University has repeatedly asserted that the only purpose 5 for the reactor is instruction. In the Contention II hearing, hr. _Cstrarder 0 was asked: 7 Q You testified, did you not, that the only purpose for the 8 reactor being there is the class room instruction? There is no other justification? g A Yes. g Q Ard, therefore, the only purpose for the reactor operation would 11 be those thirty to sixty hours of operation that are reported in your reports to the NRC? A I said, the primary and principal ard virtually only justification 13 for the reactor being there is the education. Now, there are some purposes with those other radiations. Q Eut they are secordary, in your view? A Yes. 16 TR 153-4 17 And a little later he was asked: 18 19 Q You indicated that the primary purpose ard pricary-- the central mission of the reactor is education. Is that correct? 20 A Yes. 21 Q Would there to therefore, anything but an incidental effect or 22 that primary mission, were the university to te forbidden from engaging in those other activities. 23 A No. 24 TR 162 25 There is evidence of record in the Contention II proceeding that the 26 hours of reactor operation for that " primary mission" of irstruction 27 are only one to two hours per week, ard that those hours are primarily at 28

+ % m, very low power. Furthermore, the University asserts that the vast majority. y f instructional uses of the reactor are when is is noi operating. Therefore, 2 curtailing power should have no effect whatsoever on the " primary function" 3 and " virtually only justification for the reactor being there." Complete 4 shutdown would thus have only miniscule effect, as;the vast majority of hours of instructional use assertedly involve the reactor when it is not operating. Those few uses, a fraction of an hour per week, truly requiring reactor operation could be met by using the EEL's neutron genarator as the neutron source for the activation analysis instruction rather than the reactori or samples could be provided that were previously or elsewhere activated. Thus curtailment would have essentially no effect on the primary function and purpose of the reactor; shutdown only a miniscule impact. If UCLA were to stop its delaying, because the incentive were renoved, then the curtailment or shutdown would be short-lived and the effect truly negligible. 16 The harms due to failure to curtail or shutdown are potentially 17 very largs. Evidence of record indicates a series of potentially very 18 serious accidents possible at this facility-- from destructive power 19 h fire, earthquake, W1 ner release, and so on. Every day excursions throu6 6 20 longer that the facility operates is another day when that accident-- or 21 sabotage-- can occur. 7he Board, as said-tefore, may find eventually that 22 the facility is insufficiently protected against serious destructive 23 incidents. The public could be exposed to unacceptable levels of radiation 24 in large numbers, due to inability of the Licensing Board to reiolve the 25 safety issues before those safety problems led to a serious incident. 26 Two weeks before what were to be the last session of inherent 27 safety hearings, a 14 year veteran employee of RA-2, an Argentine lou power 28 s s

I -63 research reactor, nade an error which led to a power excursion resulting y in his death and the injury of people nearby. Such an incident, with far 2 worse Consequences, ::ould happen at any time at the UCIA facility; the 3 Board.still is unable to rule that self-shutdown will occur safely, 4 rather than destructively. 5 Iast month C3C received a letter from a mother who, after 6 a long period of spending "the greater part of six days a week in the 7 thth Sciences Building" at UCIA, terminated a pregnancy in a stilitirth. g She writes inquiring whether this could be the result of the daily Argon-41 leakage into the Phth Building tecause of improper height and placement of the reactor's exhaust directly upwind of the lith Building's air inlet. Are there unnecessary injuries being produced in any of the hundreds of people being exposed needlessly? Why should the exposures ccntinue for year after year while there isn't even progress on reaching an answer in the evidentiary proceedings? Within the last several years there have been at least three 16 bomb threats tt or near the reactor facility,' plus two rather crude 17 attempts at radiological sabotage, according to records already obtained during non-security discovery. Will one such attempt succeed before the 10 Board decides what security would be adequate to provide sufficient 20 protection? Will we find out the hard way that security is inadequate? 21 The competing harms are, quite frankly, some minor inconvenience 22 to a few students who would have to use the reactor at a lower power than 23 normal or use the neutron generator or some other source for activation 24 lessons and the loss of some income from commercial sale of radiation .25 services (the money from which, UCLA claims, merely covers the cost of 26 providing the commercial service anyway). Cn the other hand, the poten'.ial 27 harm is doses in the nillions of Rem close by and problem doses out over 28 areas with hundreds of thousands of people in them, because someone mde a

I mistake (thinking the reactor would shutdown automatically if a cample 2 is yanked, or that it can't catch fire, or that tnere can't te much 3 Wigner energy stored). A catastrophic mistake, with thousands of injuries 4 on the one hand, or some minor adjustment of a one-hour a week instructional 5 activity on the other. G 7 CONCLUSION 8 CEG recognizes that this has been a very lengthy motion. But 9 this has been necessitated by a very lengthy ard unduly delayed proceeding, 10 and the only hope that this proceeding will resolve the issues before it, 11 is grant of this motion. solicited by the Board itself. This is undoubtedly the most important decision the Board will have made in the many years of of this proceedings it will determine whether the rest of the proceeding I4 will have any meaning. If not granted, there is little, if any, possibility 15 that the Board will be able to fulfill its responsibility of ruling on IO the proposed application and the contested issues related thereto tefore II much of the requested renewal period has elapsed. The Applicant will continue 18 to be rewarded for delay, and the continued operation, about which so many 10 critical safety questions are still unresolved, will continue to occur 20 by default. 21 'Ihe Board asked for this motion and suggested the relief that 22 would be appropriate. The Board clearly has the power to take the action 23 it proposed. In fact, the law requires it-- toth the requirements of 24 prompt determination of the issues in the proceeding, and those forbidding 25 continued operation after license expiration when an application was 26 untimely and insufficient. 27 It is precisely because of the untimely and insufficient nature 28

1 of the Applicant's safety analyses that fcur years later, the 3oard is 2 still unable to decide the most elementary of safety questions in this 3 cases how or g the reactor will safely shut itself do u in an accident. 4 After four years of relicensing proceedings, the inherent safety of the 5 reactor remains in doubt. And after four years, the health and safety 6 of the public remains unprotected. The facility should not te permitted 7 to continue to operate. Otherwise, the proceeding uill never end and g the public will never receive the protection and law enforcement the g Atomic Energy Act and the AFA have entrusted to this 3oard. 10 3oth the facts of this case and the law of this case require 33 complete shutdown. Should limitation of operations be seen as an 12 alternative, which C3G feels strongly it should not, then such a l 13 limitation must be severe and far-reaching, as argued abovt, 74 Cperations at the UCLA Argonaut must te curtailed-- so that 15 the neighbors of this reactor do not find out, the hard way and before 16 the Board does, whether a devastating destructive incident can occur 37 at this dangerously under-analyzed facility. 18 19 Resp ct ully submi *ed,, executed at 3en kmond, CA gy this 9th day of January,19% gitsc' y Cha A Daniel liirsch 22 Fresident Committee to 3 ridge the Gap 23 1 24 25 26 27 28

UNITED STATliB 0F APERICA NUCLEAR REGUIATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINC BCARD In the Matter of Docket No. 50-142 THE REGENTS OF THE UNIVERSITY & CALIFORNIA (Proposed Renewal of Facility License) (UCLAResearchReactor) DECIARATION OF SERVICE I hereby declare that copies of the attached: I.10TI0li FOR CURTAIIIIENT (III) (Irreparable Injury Assoc,iated With Any Furthor Delay) .n the above-capt.ioned proceeding have been served on the following by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: January 9. 1984 John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Clenn R. Woods U.S. Nuclear Regulatory Commission Office of General Counsel 390 University Hall

• Dr. Emmoth A. Imebke 2200 University Aventie Admin $strative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay vashington, D.C. 20555 3755 Divisadero #2u3 San Francisco, CA 94123 Glenn O. Bright A42inistrative Judge Igan Naliboff Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall washington, D.C. 20555 1685 Main Street Chief, Docketing and Service Section Office of the Secretar7 Dorothy 'Ihompson U.S. Nuclear Regulatory Commission Nuclear law Center Vashington, D.C. 20555 6300 wilshire Blvd., #1200
• Counsel for NRC Staff U.S. Nuclear Re6ulatory Commission role Ka Wsq.

Vashington, D.C. 20555 and LicerGing Board Panel attentions Ms. Colleen Woodhead 'dfatory Commission U.S. ear We inst, Dsc. 20.555 N

• William H. Cormier Office of Administaative Vice Chancellor M

University of California // O/ 405 Hilgard Avenue h c/ Los Angeles, California 90024 g g,g President 37 gypg333 g7L COMMITTEE TO BRIDGE THE GAP --,,,-____.__._.,m., .__,.,,,___.L_,___......._,,.._..._-,,__,,,,, .. _ _. ~, _. _ _,,,.., ...._r,,_m, .}}