ML20088A055

Motion to Reconsider Portions of ASLB 840322 Memorandum & Order,Overruling Objections to Untimely Filed Rebuttal Testimony.Aslb Has Placed Interest in Complete Record Above Statutory Interests of Proceedings.W/Certificate of Svc

ML20088A055
Person / Time
Site:	05000142
Issue date:	04/06/1984
From:	Bay J COMMITTEE TO BRIDGE THE GAP
To:
References
NUDOCS 8404100486
Download: ML20088A055 (11)

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- dhSI DOLKETED 1 COMMITTEE TO BRIDGE THE GAP 'J %PC 1637 Butler Avenue, Suite 203 2 Los Angeles, California 90025 (213) 478-0829 ,84 APR 10 N1 :25 3

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UNITED STATES OF AMERICA 6 NUCLEAR REGULATORY COMMISSION 7 BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD 8

9 In the Matter of )

)

10 THE REGENTS OF THE UNIVERSITY ) Docket No. 50-142 OF CALIFORNIA )

11 ) (Proposed Renewal of (UCLA Research Reactor) ) Facility License) 12 )

)

13 14 MOTION TO RECONSIDER BOARD MEMORANDUM AND ORDER OF MARCH 22, 1984 (Part I) 15 16 I.

17 INTRODUCTION 18 Committee to Bridge the Gap ("CBG") hereby moves the Atomic 19 Safety and Licensing Board (" Board") to reconsider portions of its 20 March 22, 1984 Memorandum and Order, ruling on CBG's objections to 21 UCLA's rebuttal testimony. CBG continues its objections to UCLA and 22 Staf f's " rebuttal" testimony as set forth in CBG's November 16, 1983-23 Objections, and seeks reconsideration of the Board's ruling on all 24 testimony which the Board indicates should have been filed with 25 Staff's and UCLA's direct case, but which it now admits. CBG also 26 seeks reconsideration of certain other specific rulings as will be set 27 forth below and in Part II of this Motion filed under separate cover.

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i 1 II.

2 THE BOARD'S ADMISSION OF UCLA'S REBUTTAL TESTIMONY VIOLATES ITS OWN PRCCEDURAL RULINGS 3

In January 1983, due to the fact that UCLA and Staff had 4

ignored the Board's admonitions regarding filing summary disposition 5

only on contentions where a strong case would be made, CBG filed, in 6 l opposition to the summary disposition motions, what amounted to its 7

direct case. On April 7, 1983, this Board ruled that UCLA's and 8

Staff's direct case at the safety hearings had to include any rebuttal 9

to the material filed by CBG in its reponses to UCLA's and Staff's 10 motions for summary disposition. UCLA put on its direct case during 11 the July 1983 hearings. At the end of the October hearings, after 12 CBG had presented its direct and rebuttal cases, UCLA requested a 13 continuance in order to file its rebuttal testimony. Although the 14 continuance was granted, the Board reiterated its previous ruling 15 that UCLA's rebuttal had to be restricted to rebuttal of new inform-16 ation which had not been included in CBG's opposition to summary 17 disposition; any rebuttal to that material having had to have been 18 filed with UCLA's direct case. On November 7, 1983, UCLA submitted 19 its massive " rebuttal" testimony, with CBG's objections following on 20 November 16, 1983. Even before ruling on CBG's objections, in its 21 November 23, 1983 Order indefinitely postponing the safety hearings, 22 the Board again indicated that it was concerned over the fact that 23 UCLA's " rebuttal" should have been included in its direct case.

24 25 "The Board indicated its concern over the lateness of UCLA's rebuttal concerning the 26 shutdown mechanism in the UCLA Argonaut, which in the Board's view, concerns the prin-27 l cipal issue in this case. Regardless of 28 L

o it I whether this testimony is proper rebuttal, the Bocrd noted its view that it should have 2 been presented last summer.

3 Thus, at the time CBG objected to UCLA's and Staff's rebuttal 4 testimony, the Board had already established long-standing and clear 5 procedural rules concerning the allowable scope of UCLA's and Staff's 6 rebuttal testimony.

7 In the March 22, 1984 Order, the Board acknowledges its 8 previous rulings, stating repeatedly that certain portions of the 9 University's rebuttal testimony should have been filed with its 10 direct case.1/ Despite finding that the noted testimony should have 11 been filed as part of the University's and Staff's direct cases, the 12 Board ultimately ignored its prior rulings and overruled CBG's 13 objections admitting the noted testimony, ostensibly to further "the 14 public interest in a complete record." Thus, the Board's March 22, 15 1984 ruling is directly contrary to its own oft repeated procedural 16 orders and should be reconsidered.

17 III.

18 THE BOARD'S ALLOWANCE OF UCLA'S REBUTTAL TESTIMONY IS CONTRARY TC THE PUBLIC INTEREST UNLESS THE REACTOR 19 IS SHUTDOWN UNTIL PROVEN SAFE _

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1. The Board Has An Obligation To Secure A Complete 21 Record Prior to Approving the UCLA License Request.

22 In making its ruling, the Board claims wide discretion as 23 to what constitutes permissible rebuttal testimony. It exercises 24 De Boarti order indicates that the following testimony responds to CBG's 25 ' January declarations: (1) shutdown mechanism rebuttal; (2) Wigner energy calculations; (3) the last paragraph on page 3 of UCLA's " Rebuttal to CBG's Wigner 26 Energy Testimony; (5) answr 4 in UCLA's rebuttal on credibility of a graphite fire at the UCLA reactor; (6) the reference in answer 6 to Ostrander's neutron transport 27 calculations; (7) portions of answer 6 to Staff's Rebuttal 'Ibstimony on Dis-persion; (8) Staff answers 9, 10 and 11.

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l 1 this discre*1, allow UCLA's untimely testimony on the basis that 2 the public interest in a complete record outweighs the inconvenience 3 to the Board and the other parties created by the delay which its 4 ruling will entail. The Board reaches this conclusion by reasoning 5 that as an administrative tribunal it has a duty, independent of the 6 presentation of the parties, to fully develop all facts and opinions l 7 related to the safety of this reactor so as to be able to render a sound 8 decision on a complete record. The Board indicates that this 9 obligation to secure a complete record is heightened in the UCLA case 10 due to the fact that the Board is confronted with an application for 11 renewal of an operating license for a reactor sited in an urban arez .

12 In other words, the Board believes it must develop a complete record 13 in order to be absolutely certain of the UCLA f acility's safety before 14 it grants a license.

15 2. The Paramount Public Interest to Be Considered By the Board is the Public Health and Safety.

16 As a general proposition it is difficult to take issue with 17 the Board's interest in developing a complete record as discussed 18 above. However, the application of that princinle to UCLA's rebuttal 19 testimony in the context of this long-delayed license renewal hear-20 ing, stands public pol. icy and public interest considerations on their 21 heads.

22 The ultimate public policy to be upheld by the Atomic Safety 23 and Licensing Board is not to develop a complete record, rather it is 24 to protect the public health and safety. This policy is expressed in 25 10 C.F.R. 50.40.

26 In determining that a license will be 27 _ issued to an applicant, the Commission will be guided by the following considerations:

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1 (a) . . . the operating procedures, the 2 facility and equipment, the use of the facil-ity, and other technical specifications, for 3 the proposals, in regard to any of the fore-going collectively provide reasonable assur-4 ance that the applicant will comply with the regulations in this Chapter, including the 5 regulations in Part 20, and that the public health and safety of the public will not be 6 endangered.

7 (b) The applicant is technically . . .

qualified to engage in the proposed activ-j 8 ities in accordance with the regulations in this Chapter. . . .

9 (c) The issuance of a license to the 10 applicant will not . . . be inimical to the common defense and security or to the healt.

11 and safety of the public.

12 These standards are repeated in 10 C.F.R. 50.57.

13 It is only in the interest of upholding these regulatory 14 standards that the independent duty of the Board to rule only upon a 15 complete record comes into play. In other words, if the record is not i 16 complete, the Board cannot be certain in its conclusions concerning 17 a facility's impact on the public health and safety, and, thus, should 18 not issue a license to the facility.

19 3. The Development of A Complete Record Must Not Come At the Expense of the Public Health and Satety.

20 The protection of the public health and safety and the consequent interest in a complete record must be considered in the procedural context in which they arise. If a Board is considering a 23 license application, the subject facility will not be operating while 24 the record is being developed. Thus, until the record is complete and 25 the Board is satisfied that the public health and safety will not be 26 j endangered by license approval, the public health and safety is 27 completely protected by the fact that the facility is not operating.

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4 1 In such a situation, emphasizing the public interest in a complete 2 record makes imminent sense. However, in the context of a license 3 renewal proceeding, such as the instant one, the status quo is not 4 benign. During the hearing process, the facility continues to operate 5 and may be posing a threat to the public.

6 The significance of this different procedural context is 7 dramatically illustrated in the UCLA case. In this case, serious 8 questions have been raised concerning the safety of the facility.

9 However, the Applicant and the Staff have taken, in this Board's 10 words, a " nonchalant approach to the substantive issues" and a 11 " cavalier attitude toward this proceeding." Indeed, as to the 12 shutdown mechanism, the " principal issue in this case," the Board has 13 found UCLA's and Staff's testimony, to date, insufficient. Thus, 14 serious questions as to the safety of the facility have been raised 15 and, on the existing record, the Board cannot, at this time, find that 16 the UCLA facility meets the standards in 10 C.F.R. 50.40. Conse-17 quently, the status quo does not provide assurances that the public 18 health and safety is not being endangered and every delay is contrary 19 to the public interest.

20 In the context of this case, for the Board to allow untimely 21 rebuttal testimony and the delays which such testimony has caused and 22 continues to cause on the basis that the public interest demands a 23 complete record, perverts the paramount public interest of protecting 24 the public health and safety.

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l 1 IV 2 THE BOARD'S MARCH 22, 1984 ORDER CAN ONLY BE CONSISTENT WITH THE PUBLIC INTEREST IF THE BOARD 3 SHUTS THE FACILITY DOWN 4 There is only one way in which this Board can legally 5 justify allowing UCLA's untimely rebuttal testimony in the f ace of the 6 I Board's repeated previous rulings restricting the scope of said 7 testimony; that is to order the facility shut down until UCLA 8 demonstrates compliance with the standards set forth in 10 CFT 50.40.

9 Only if this license renewal proceeding is put on the procedural 10 footing of a licensing or restart proceeding will the public interest 11 in developing a complete record, without regard to the delays involved 12 in such a course of action, be consistent with the paramount public 13 interest and regulatory charge to the Board of protecting the public 14 health and safety. Thus, the Board must either reconsider its March 15 22, 1984 evidentiary rulings or it must grant the relief sought in 4

16 CBG's Motion for Curtailment (III) of ordering the reactor shut down 17 until it is proven safe.

18 V 19 THE BOARD'S ALLOWANCE OF UCLA'S REBUTTAL TESTIMONY-RAISES THE SPECTRE OF INCREASING DELAYS THROUGHOUT 20 THE COURSE OF THE HEARINGS 1

21 As set forth above, the Board has made a series of rulings 22 over the past year and one-half regulating and restricting the scope 23 of filed testimony on summary disposition and at hearing. Besides a 24 nonchalant attitude toward the substantive issues in the case, Staff 25 and Applicant have shown disdain for the Board's procedural rulings 26f and have thereby already occasioned well over a year's worth of delay 27 in the proceedings. If the Board continues to fail to enforce its own 28 .

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1 procedural orders as it has in its March 22, 1984 Order, it could be 2 as much as ten years from the time of application before a final 3 decision is reached.

4 Under the Administrative Procedures Act, 5 USC S 555(b) and 5 under 10 CFR S 2.718, this Board has a duty to reach a timely and 6 expeditious decision on the matters before it. This general duty is 7 particularly great when, as here, there has been a strong showing that 8 the ongoing licensed activity may present a threat to the public 9 health and safety. See, Enviornmental Defense Fund v. Hardin, 428 10 F.2d 1093,1099 (1970) . The Board cannot discharge its duties to move 11 forward and protect the public health and safety in these proceedings 12 unless the UCLA license is suspended pending a final decision. This 13 is the case because ULCA currently has every incentive to continually 14 repeat its conduct to date of withholding its direct case as long as 15 possible, then delaying the hearings in order to establish a complete 16 record. Mr. Cormier's March 30, 1984 letter provides a dramatic 17 illustration of this fact.

18 In the interest of securing a complete record on the 19 critical issues of shutdewn mechanism and Wigner energy, the Board has 20 overridden its previous rulings to allow UCLA's and Staff's late-r 21 filed testimony. Now UCLA informs us that although the current 22 maintenance problems at the reactor will provide an opportunity to 23 view the reactor core and take certain measurements, these oppor-i 24 tunities will not provide significant information in this phase of the 25 proceedings because the core-will not be opened for at least six 26 months and maybe longer. Thus, implicitly, UCLA is suggesting that 27 the hearings proceed based on Mr. Ostrander's testimony and Dr.

28 Pearlman's calculations, but whenever it gets around to opening the I

l 1 core, it will " redefine" the water pathways and take measurements 2 which could render large parts of its previous testimony irrelevant 3 or unreliable. Undoubtedly, it will then ask to reopen or continue 4 the safety hearings on the basis of the new information.

5 What is the injury occasioned by these delays? It is the 6 threat to the public health and safety and the subversion of the 7 statutes and regulations governing these proceedings. As the court 8 indicated in Environmental Defense Fund v. Hardin, the administrative 9 inaction is the same as denial of relief where such inaction has the 10 same impact on the rights of the parties as denial of relief. In this 11 case, as in that one, if CBG is correct in its claim that this reactor 12 and the possession of SNM by this license present imminent hazards to 13 the public, then failure to suspend the license in the face of the 14 interminable delays is a failure to discharge the Board's statutory 15 and regulatory duties.

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17 l CONCLUSION 18 19 The Board, in its March 22, 1984 Memorandum and Order, 20 verrules CBG's objections to untimely filed rebuttal testimony on 21 the grounds that the public interest in securing a complete record 22 upon which the Board can base its ruling overrides its own prior 23 procedural rulings. In so ruling, the Board has placed the interest 24 in a complete record above the statutory, regulatory and policy 25 l interests of expeditious proceedings and, most importantly, the 1

76 1 protection of the public health and safety. Thus, in order to 27 discharge it duties, the Board should suspend UCLA's license to use 23 , l 1

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l 1 and possess SNM until a final decision has been reached. If the Board 2 does not reconsider it rulings and otherwise act to expedite these 3 hearings, thepublicinterestmgyTe 'rreparably harmed.

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John H. pay /

j 6 Attorney for Intervenot COMMITTEE TO BRIDGE TIIE GAP 7

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.. .o United States of America NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-142 OL THE REGENTS OF THE UNIVERSITY )

OF CALIFORNIA ) (Proposed Renewal of Facility (UCLA Research Reactor) ) License)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the attached MOTION TO RECONSIDER BOARD MEMORANDUM AND ORDER OF MARCH 22, 1984, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: N , 1984 ApM V John H. Frye, III, Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Emmeth A. Luebke Administrative Judge Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Glen O. Bright Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chief, Docketing & Service Section (3)

Office of the Secretary U.S. Nuclear Regulatory Commission Wachington, D.C. 20555 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Ms. Colleen P. Woodhead 4

William H. Cormier Office of Administrative Vice Chancellor University of California 405 Hilgard Avenue Los Angeles, California 90024 Christine Helwick Glenn R. Woods Office of General Counsel 590 University Hall 2200 University Avenue Berkeley, CA 94720 Lin Naliboff Deputy City Attorney Office of the City Attorney City Hall 1685 Main Street Santa Monica, CA 90401 Committee to Bridge the Gap 1637 Butler Avenue, Suite 203 Los Angeles, California 90025 Daniel Hirsch P.O. Box 1186 Ben Lomond, CA 95005 Dorothy Thompson Nuclear Law Center 6300 Wilshire Blvd., Suite 1200 Los Angeles, CA 90048 Carale\F . agan, Esq.

Atomic afety and Licensing Board Panel U.S. N ear Regulatory Commission

Washi gto , D.C. 20555 ,

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JOHN f/

CounselBAj'for Jntervent:

f COMMITTEE TO BRIDGE THE GAP-l-

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