ML20083J354

Response to ASLB 831130 Memorandum & Order Directing Parties to Address Question Re Whether Sale of Irradiation Svcs by UCLA to U West Constitutes Research Activities.Sale Constitutes Commercial Activity.W/Declaration Svc

ML20083J354
Person / Time
Site:	05000142
Issue date:	12/30/1983
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8401050225
Download: ML20083J354 (9)

Text

= l CCEMITTEE TO 2 RIDGE TE CAP Decenter 30, 1983 l 1637 Eutler Avenue, Suite 203 Ics Angeles, California 90025 DSff/JD

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1 (213) 478-0829 UNITED STATES & A! ERICA '84 J?." -3 A10 :12 3 NUCLEAR RECULATORY CCIO'ISSION

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4 EFORE THE ATOMIC SAFETY AND LICENSING E0ARD ' Ij ' ; 5 5

In the Phtter of ThE RECENTS OF THE UNIVERSITY eket No. 50-142 7 CF CALIFORNIA (Proposed Renewal of 8 (UCIA Research Reactor) Facility License)

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9 10 CBC'S RESPONSE TO T:-E ECARD'S NOVEMBER 30, 1953, FEMORANDUM AND CRDER 11 12 Do Sales of Irradiation Services by UCIA to Uraniun West Inc., Constitute Research as Defined in the Atomic Energy Act?

13 14 15 Contention II (" Wrong Class of License") asserts that the UCLA 16 reactor is used only one to two hours per week for its licensed purposes 17 of education and research and that the vast majority of its actual use 18 is sale of services, primarily to an cre assaying company known as 19 Uranium West. By Memorandum and order of November 30, 1983, the Ioard 20 directed the parties to address the question whether sale of irradiation 21 services by UCIA to Uranium West constitutes "...research... activities of 22 the types specified in section 31..." of the Atomic Energy Act. Sie 23 30ard particularly directed the attention of the parties to 24 31(a)(4) of the .Act.

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1 331 of the Atonic Ener6y Act, and the definitions related thereto 2 found in sll, do not irdicate that the licensee's sale of services to 3 Uranium West constitutes research as provided for in the Act, but just 4 the contrary. The activity is commercial, cf the for= requiring a Class 103 5 license.

6 Se reason is principally that the activities described in 7 231(a)(4) are fields into which research is to be encouraged, but concercial 8 activity in those fields is, of course, concercial activity, not research.

9 Re subparts of 31(a) are controlled by 31(a) itself, which describes the 10 subparts as fields into which research and development are permitted.

11 Re subparts do not define research; that is done in Ell.x., by which 12 definition UCLA's sale of services to Uranium West is clearly not research.

13 Discussion his contention essentially raises the issue whether the UCLA reactor--about which so much uncertainty remains as to its safety--is even l,e used any more for the purposes for which the license was granted. It contends that research has dried up and instructional uses are a cere 30-50 hours per year, with hundreds of the remaining hours per year devoted to l

19 sale of services, primarily to Uranium West. Berefore, CIC conterds, if l the reactor is to be licensed at all (which, in Contention X, CIC asserts isn't worth the risks, given the extremely minimal tenefits involved, primarily to this ore company), it must be licensed under 10 CFR 50.22 tecause core than 50T of its use is no longer for the or1 61nal licensed purposes.

, 25 l 10 CFR 50.21(c), the provision applicable foi reactors which are 26 genuinely research reactors, defines then ass 27 28 i

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1 "A production or utilization facility, which is useful in the conduct of research and developnent activities of the 2 types specified in section 31 of the Act, ard which is not a facility of the tyve crecified in parDaph (b7of 3 this section or in 550.22."

(emphasis added) 4 50.22, of course, provides the now-famous " substantial use" test candated

'5 by Congress for research reactors used substantially for sale of servicess G

"...in the case of a production or utilization facility which is useful in the conduct of research ard development activities of the types specified in section 31 of the Act, g such facility is deemed to te for industrial or conmercial purposes if the facility is to be used so that r. ore than g 50 percent of the annual cost of owning and operating the facility is devoted to the production of raterials, products, or energy for sale or Commercial distribution, or to the sale of services, other than research ard development or g education or training."

12 The Board asks whether 50.21 might apply to UCLA if Uraniun West's 13 tusiness could be construed to fit under section 31(a)(4) of the Act.

14 C3G's answer is no--Uranium West's use of the UCLA reactor does not fit 15 trder 31(a)(4), and even if it did, the UCLA reacter would still not meet 16 the second requirement of 10 CFR 50.21(c), which is that 50.22 not apply.

17 13 _'Ihe Subparts of 31(a) Descrite Fields into which Research Can Ee Conducted--

They Do Not Define Research 19 20 section 31(a) of the Atomic Energy Act states in pertinent parts 21 "The Concission is directed to exercise its powers in such 99 manner as to insure the continued conduct of research and

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developr.ent and trainirg activities in the fields specified below.. ."

23 Below are listed six fields, such as " nuclear processes", "the theory and 2a, production of atonic energy," ard " utilization of special nuclear material, atomic energy, and radioactive rcterial for medical, biological, agricultural, hetlth,or nilitary purpcses".

28 g CEG must record its concern about this question being raised af ter close of the hearing record, as CEO ray well have asked additional questions of witnesses ard introduced additional evidence had it known prior to the hearing that this question was to be an issue. ,

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1 Gection 31(a) of the Act simply directs the Commission to i

2 exercise its powers so as to insure continued conduct of researca in k l

3 certain fields identified in the subparts below. 3ose subparts, 4 including the catch-all 31(a)(4), are simply fields into which research 5 is to te encouraged. Thus, for example, when 31(a)(3) refers to agricultural l l

6 uses, the controlling language of 31(a) remains--the activity must be I 7 research into potential agricultural uses. Commercial uses of atonic g energy for agricultural purposes would not apply.

g The absurdity that would result if one were to take the subparts 10 f 31(a) as definiti ns f research rather than fields into which recearch 77 nay be corducted is demonstrated by considering subpart (2), which deals 12 with the theory and production of atomic energy. All commercial power 13 reactors are involved in the production of atomic energy, but certainly they are not entitled to Class 104 licenses as research reactors.

74 15 T interpret the subparts as definitions of research would nullify the gg Act's provisions for two classes of license.

77 This is particularly clear when viewing the broad larguage of g subpart (4), entailing the use of nuclear and radioactive materials 79 ani atomic energy "for all other purposes." Certainly this does not mean R

a Use--te it research or Com ercial--of nuclear materials ani atonic g energy, because there then would be no distinction whatsoever between g classes of licenses as defined in the Act, and no other class than 104, whereas the Act clearly establishes two classes. "All other purposes" must still be read according to the controlling langua6e in 31(a):

" conduct of research and develcpment and training activities in the 2a.

fields specified below." Research into potentially new agricultural, 2.,e medical, or other uses of atomic energy is described in section 31(a),

tut once that research has been completed and the use cc:: ercially developed, the activity can no lorger qualify as research but is concercial use.

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Thus research into procecses that my sone day have coctercial (or what 2

the Act previously decerited as " practical") value ban be considered 3 re earch, but once that activity has gone beyord the research ard developnent 4

stage and is merely a fully developed proceau used commercially, it must 5

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in the le61slative history that anended these provisions of the Act in 1970, 6

1 raking a Congressional determination that power reactors were no longer developmental but were commercial.

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g Prior to 1971 a commercial license (class 103 license) would only be given to "a production or utilization facility which is of a type fourd in writing by the Commission to have been sufficiently developed to be of practical value for industrial or conmercial purposes." 21 Fa 357 12 (January 19,1956). As of 1970 there had been no such finding and so no power 13 facility had been licensed as a class 103 facility. See S. Rpt. 91-1247, 91st Cong. , 2nd Sess pp.8-9. Because of this, Concress decided the time 10 for change had come ard so it, by passing Public law 91-560, eliminated the l,e practical value test and required the Connission to issue new regulations.

Af ter notice and comment the Commission issued the regulations that are I presently in effect. (See 38 FR 11445-6, Eay 8,1973, and CIG's discussion

( 10 in its April 24, 1983, pleading on the legal issues related to this contention? .

One of the changes mde in 1973 was to amend 10 CF3 50.21(c) by adding "or in 50.22". By adding this the regulations expressly recognize that certain research reactors that were considered class 104(c) facilities l

can and should be considered commercial reactors and licensed under 50.22, 24 if they were used substantially for connercial purposes. Tr.us, any

, 25 interpretation that rakes it effectively impossible for a 104(c) license 2G to be changed to a 103 would be impermissible, nullifying the law and reGulatic ns.

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1 If all corduct of the types specified in section 31 of the Act--

2 without the controlling language in 31(a) regarding research into the fields 3 identified in the subparts--were research and development by definition, 4 that would impernissibly void the aforementioned regulation ard the 5 Act's provisions for Class 103 licenses. But if one interprets section 31 6 as defining fields into which research may be corducted, provided it is first 7 found to be research by the definitions of the Act, then section 31 is 8 consistent. Only the latter interpretation is consistent with the act 9 an1 the re6ulations. Otherwise, everything is research ani nothing is 10 ever commercial.

11 12 If the Subparts of Section 31(a) Merely Descrite Fields Into Which Research fay be Corducted, What Then is the Definition of Research?

13 14 Research, as the term is used in Section 31, is defined in 15 Section 11.x:

16 "The ter: 'research ard development' means (1) theoretical analysis, explcration, or exterimentation; 17 or (2) the extension of investigative findin6s and theories of a scientific or technical nature into practical application 18 for experimental ard demonstration purposes, including the experimental production and testin6 of models, devices, 19 equipment, raterials, ard processos."

(emphasis added) 20 .

21 Activity in one of the fields described in the subparts to Section 31(a) 22 must, in order to be research in those fields, te experimental in the 23 sense of testing new hypotheses and models; i.e., tentative trials, 24 testing, and observations. In other words, to te experimental or developcental, 25 the outcome must be unpredictable and unsure, as opposed to a precise service 26 which is duplicated in a routine manner for a fee. Uraniun West is not ,

27 involved in inventing something new--it provides instead a precise, 28 standardized service, offered elsewhere, as a commercial activity.

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1 Uranium West merely assays samples, not, tuch differently, in terns of 2 cor.nercial cervice, than the assay office in a nining town in the C1d Wect.

3 Researching now techniques for assayirs might be researchs once the method 4 was developed, however, and reproduced for a fee in a routine fashion, it 5 ceases to be R&D and becomes commercial. Perhaps when Dr. Kalil was a 6 graduate student and developing his technique the activity n1 ht6 be considered 7 research and developnent; but when UCIA permitted Dr. Ealil M form a 8 private company ani " set up shop" at the UCIA reactor facility, repetitively 9 using the now-developed equipnent as a norral businessman selling a service, 10 all pretense of instruction or research had vanished and commercial activity

}] had replaced.

12 This is made vividly clear when re-examining the legislative 13 history. The precise situation at UCIA was forescen by Congress, which 14 indicated its clear intent that a research reactor that was used substantially 15 f r commercial or industrial purposes would not be eligible for a Class 104 16 license. The enabling regulations of the Commission likewise explicitly 37 recognised the situation we have at UCIA, giving as exa..:ples of research 18 reactors that should be licensed under Class 103 (commercial) l 39 "...research reactors that are used to produce radioisotopes for sale or that are used for neutron radiography on a concercial tasis."

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21 The UCIA reactor is used for neutron activation on a concercial basis; 22 it is ineligible, due to that substantial use and the insubstantial 23 instructional and research uses, for a Class 104(c) license.

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J l 1 x2 Conclusion -

3 he subparts of Section 31(a) of the Atomic hergy Act, m 4 including subpart (4) about which the Board's inquiry le directed, 5 eerely identify fields into uhich research may be conducted. "he identified 6 fields included in the subparts are controlled by the contro111r4 language 7 in the umbrella paragraph which permits research into those areas.

8 Research, as used in Section 31(a), is defined in Section ll.x.

9 he activities of Uranium West, Inc., in no way fit the Act's definition 10 of recearch and precisely fit the Congressional intent in candating that 11 research reactors used ,substantially for commercial purposes such as 12 production of radioisotopes for sale or rceatron radiography on a centercial

]3 insis.not te given research reactor licenses. To do so in thic case--

14, ' where the prirary licensed activity of instruction representc a few hours 15 of use per year-would fly in the face of the Act, the regulations, ard 16 Concrescional in+ent.

17 Respectfullygabmitted,

, 19 b&'th Daniel Hirsch l

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dated this 30th day of December,1983 21 at Een Iomord, California

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l o UNITED STATES OF AMERICA NUCLEAR RECULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BCARD In the Matter of Docket No. 50-142 THE RECENTS OF THE UNIVERSITY OF CALIFORNIA (Proposed Renewal of Facility License)

(UCLA Research Reactor)

DECIARATION OF SERVICE I hereby declare that copies of the attached: cec's pes m o to the Bo M 's rovember 30, 1981. Meno m a ur *d W ,

in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, posta6e prepaid, addressed as indicated, on this dates Decenter 30. 1083 .

John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Clenn R. Woode U.S. Nuclear Regulatory Commission Office of Ceneral Counsel 590 University Hall Dr. Emmeth A. Imebke 2200 University Avenue Adminia trative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay Washington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 Glenn O. Bright Ad11nistrative Judge Ignn Naliboff Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washin6 ton, D.C. 20555 1685 Main Street Chief, Docketing and Service Section Office of the Secretary Dorothy 'Iho.".:pson U.S. Nuclear Re6ulatory Commission Washin6 ton, D.C. 20555 Nuclear Iaw Center 6300 Wilshire Blvd., #1200 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Ms. Car e Kagan, Esq...

Washington, D.C. 20555 Ato ety.and-Li~ censing Board Fanel attention: Ms. Colleen Woodhead U.S. N

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ear'Re6ulat'ory Commission Washingf'on, b f 20555 Williga H. Cormier Office of Administ2ative Vice Chancellor University of California 405 Hil6ard Avenue Los Angeles, California 90024 d msd President CCMNITTEE TO BRIDCE THE CAP

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