ML20088A161
| ML20088A161 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 04/06/1984 |
| From: | Hirsch D COMMITTEE TO BRIDGE THE GAP |
| To: | |
| References | |
| NUDOCS 8404110096 | |
| Download: ML20088A161 (31) | |
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". COMMITTEE TO BRIDGE THE'. GAP 47{ff{ED 1637 Butler Avenue, Suite 203 Los'An l(213) g'eles, 478-0829 California 90025 jg p,co 10 R2 35
[ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
%~ In the Ma'tter of )
)~ Docket No. 50-142 TEE "
REGENTS OF THE UNIVERSITY )
0F. CALIFORNIA )
) (Prooosed Renewal of (UCLA Research Reactor) ) of Facility License)
)
CBG'SMOTIb'NFORRECONSIDERATIONOFCERTAINPORTIONSOFTHE BOARD'S KARCH 22, 1984, ORDER Part II
.e ,
s I. Introduction e .
In its April 7, 1983, Memorandum and Order, the
' Atomic Safety and Licensing Board laid down rules regarding proper scope of rebuttal in this proceeding, directing Staff and Applicant that any responses to material contained in CBG's
'already-filed January 1983 declarations must be responded to
.in ; June pre-filed testimEny and that any attempt to include in rebuttal
-testimony responses to material contained in said January declarations would not be tolerated:
All parties sh'ould understand that such-a practice f reserving for rebuttal some portion of one's responses to CBG's positions as set-out in its declarations 7 is beyond- the proper scope of rebuttal.
(emphasis ad.ded) 1
_ PDR \
- s. ..
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.y The Board reiterated its rule in a conference call on September 1, and again in a letter dated September 22, which states:
'...in the course of the conference call of September 1, the Board reiterated its direction in its April 7 Order that rebuttal testimony would be limited to new material not filed by CBG in January. We have not changed our position on this matter. The Board has no intention of allowing rebuttEl that goes beyond the scope of the guidelines we have set forth.
(emphasis added)
Despite its April 7 Order, and its reiteration (more than -once) that the " Board has no intention of allowing rebuttal that goes beyond the scope of the guidelines we have set forth",
the Board's Memorandum and Order of March 22, 1984, does precisely that.
Despite ruling that the bulk (in terms of pages of proferred testimony) of the supposed " rebuttal" was outside the scope of proper rebuttal as set down in the Board's rules, the Board went' ahead and admitted the improper rebuttal anyway, despite-all its previous Orders and pledges to the contrary.
And'despite its clear rule that rebuttal testimony "would be limited to new material not filed by CBG in January,"
(emphasis added), the Board admitted a tremendous amount of other
" rebuttal" which was responding to old material filed by CBG in the January declarations.
Part I of this motion for reconsideration, being filed 1 separately, addresses the admission of testimony the Board ruled was improper rebuttal. Part II addresses the admission of testimony the Board, erroneously in CBG's view, asserts is within the Board's prior rulihgs about proper scope of rebuttal .
In particular, both portions of the reconsideration motion assert that the Board f ailed to properly consider both its own rules in the matter and the tremendous injury occasioned by failing to follow the rules it itself set down.
The Board's Order indicates that the only negative consequence, in its view, to the delay occasioned by admission of improper rebuttal is inconvenience to the parties.
This neglects, however, the real and overriding injury that each such failure to enforce its own rulings and each such failure to expedite the proceedings causes--continued license possession, and thus continued potential for grave public health and safety injury. Every delay in determining whether the Applicant has met its burden of demonstrating safety means more time when public risk continues without the Board having determined whether that risk is acceptable.
Indeed, the Board indicates in its most recent Order that UCLA and Staff have both f ailed to meet the burden of demonstrating safety on two of the most central safety questions in the proceeding: potential for destructive power excursion, and potential for destructive Wigner energy release. The Board's Order says quite explicitly that if it had to rule based on the evidence of record, "there is not much in the record to_ support UCLA." Further, the Board has ruled that proferred additional material, not in the record, is impermissible rebuttal which, if it were to obey the normal legal standard for proper rebuttal as well as its own rulinas on the scope of proper rebuttal, must be excluded. Thus the Board has determined that, according to its own rules, UCLA has failed to meet its burden. Bu,t rather than do what the law requires--deny the license on the basis of failure to meet one's burden--the Board has violated its own rules and, further, announced in essence, that it is going to start the hearing process all over again. Just because UCLA failed to follow the rules and failed to meet its burden of proof on important safety issues, the Board decides to neither
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enforce the rules nor make the reouired safety finding, but rather,. start all over again. The only injury the Board mentions is " inconvenience to the parties," but the real injury is that starting over again while the facility (whose licensee has failed to meet its burden of proof as to the safety of said f acility) gets to keep its license. In short, the Board has announced that UCLA can keep the license for the proposed renewal period, without a decision that it 'is safe to do so (and in fact a tacit ,
if not explicit decision that it has failed to meet its burden to demonstrate said safety). The Board's ruling amounts to saying that the_ proceeding will go on through the entire proposed license period--that every time the Applicant violates a rule or fails to meet.its burden, it will be permitted to start the whole proceeding
-over again.
This-is reminiscent of a Twilight Zone situation--
every time one almost gets to one's destination, one is sent w back to the beginning, with the destination ever approached, but never obtained. The Board is required under the Administrative Procedure Act and-the Co'mmission's regulations and policy statements to timely resolve the matters placed before it. The Board is given all powers necessary to do that, and required (it is a duty, not an option) to expeditiously rule on the application before it. (See discussion of the statute, regulations and case
-law on said duty contained in CBG's Motion for Curtailment III, still pending for decision whether continued license possession given violation of timely application rule is proper.)
The Board has completed its evidentiary hearings---
at least on two issues Wigner and power excursions. It has ,
indicated that the Applicant has not met its burden. Yet the Applicant still has its license, still has its SSNM on site, still endangers the public. .(The temporary shutdown at present
, ~does~not in any way resolve these risks--Wigner energy remains
-whether-the reactor operates-or not, and destructive power excursions have-tended to' occur more often when reactors are down for maintenance than even at other times; see SL-1 and the recent RA-1 in Argentina) .
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If the Board were to follow its own rules, and the normal procedures for rebuttal, the proceding would be over. The license would be denied, and the Applicant, if it wished to cure the-defects in the Application and supporting material (which the Board describes in its Order as " superficial,"
evidencing a " nonchalant approach to the substantive issues raised in this proceeding) would have to re-apply with the defects cured and attempt to get back the license its " nonchalant approach",
" superficial" analyses, and violations of procedure forced it to lose.
The injury produced by the Board's Order--violating
. its own rules by both permitting in material it views as improper rebuttal and by erroneously concluding other material to be proper, despite clear violation of the standard it has set--is continued risk to the public without a safety findina (and in fact in the f ace of a finding that Applicant has not met its burden).
There is an additional injury--to the process itself and the authority of the Board.
If a Board continues to set down rules, repeatedly warning the parties that it has no intention of permitting them to violate those rules and then parties, not beliering that the Board means what it says, flies in the _f ace of Board Orders and violates the rules anyway, testing the Board's resolve to enforce it word,and the Board backs down and ' violates the rules it itself has established, the authority of the Board to regulate the proceedings is given away to the litigant most willing to break the rules, the litigant most confident that the Board is' unwilling to enf orce the rules. No rule the Board sets ~down will have any meaning if the Boar'd does not enforce existing rules. No attempt by the Board to manage the proceedings can possibly succeed if violations of the procedures set down are not. punished but-instead rewarded. If a party perceives, as the most recent Order demands it perceive, that it can do anything it wishes, delay in any fashion it desires, and the only." punishment" is further delay, precisely the outcome desired, then.there will never be' a Board Order believed, never a procedure I
complied with, never a final outcome.
UCLA's most recent letter (Mar'hc 30), coming as it did after the Board's March 22 Order, makes clear that the Applicant has clearly gotten the message, and perceives that there no longer are any limits, any rules, any authority that cannot be ignore.d and refused. UCLA now tells the Board, af ter the Board admitted its improper Wigner and shutdown testimony despite repeated pledges by the Board to the contrary, that even that is not enough to resolve the case. UCLA tells the Board that it can go ahead with hearings on the Wigner and shutdown issues, but don't expect that to resolve anything, because UCLA reserves the right to come in thereafter with even more revisions to the substantive matters. In other words, UCLA is saying, thanks for letting in Ostrander's late-filed shutdown analysis and Pearlman's late-filed Wigner estimates ,
but if it looks iike we still can't meet our burden with those improper " rebuttal," we'll thereafter bring in measurements of Wigner energy and " redefine" the water escape pathways, perhaps even changing the entire core configuration about which the testimony has been based. Don'.t think that the Pearlman and Ostrander late-filed material are the end of the matter, UCLA's letter suggests; we read your recent Order to give us carte blanche to late-file anything we wish. Sometime late this year or early next year expect the whole basis of your record to change again. We won't even be talking about the same reactor configuration'about which the application is for.
We remind the Board that there nas yet to be even the beginning of hearings -on the Argon-41 issue, or on a dozen other contentions. The Board's Order, announcing that every time UCLA fails to meet its burden and f ails to follow the rules, we will start over again, is an announcement that the hearing process is over. A perpetual hearing is no hearing at all.
e II. Di s cu s si on As discussed above, CBG perceives the March 22 Order as an abdication of Board authority to regulate the proceadings and of Board responsibility to enforce its own rulings.
As discussed above, CBG perceives the injury occasioned by the Board's ruling to be not merely an "inconveni nce to the parties,"
as asserted by the Board, but rather, unless the license is suspended (as proposed in CBG's Motion for Curtailment III, still pending before the Board, and as thraatened in the Board's February 24'dYder accusing UCLA of material false statements),
continued public health and safety risks and threats to common defense and security. If UCLA hasn't met its burden, yank the license. If it wishes later to put forward material that it should have at an earlier date but failed to do so because of what the Board describes as its " nonchalant"' attitude toward the substantive issues in the case, let it reapply. But do not permit continued public risks via continued license possess, ion when the Applicant has not met its burden and the safety of the facility remains undemonstrated. To do so is to reward delay, to reward disregard for Board directives, to encourage disrespect for Board authority, and to essentially give away the keys to the conduct of the proceeding to a litigant that has consistently, as the Board itself has repeatedly stated, f ailed to take seriously its responsibilities in this case. No other violation of rule--be it further material falsehoods, be it total disregard for any Board ruling it wishes to ignore--can be expected to be avoided if the Board does not enforce its own rules.
Further problems are associated with specific rulings in the Board's Order. In September, the Board directed that rebuttal be limited "to new material not filed by CBG in January."
In March, the Board admits in tremendous material in response to old material included in the-CBG January declarations.
It does so in part by asserting that, for example in the case of the Staff " rebuttal" to CBG's dispersion analysis, that
it will-admit Staff rebuttal to CBG's January dispersion declarations because there is reference in CBG's October rebuttal to-its primary calculations submitted in January. In other words, in January CBG calculated doses due to equilibrium
' inventory and accident at time of shutdown; in rebuttal ,CBG -
indicates that non-equilibrium inventory and longer shutdown assumptions have little effect on the initial, fundamental conclusions of dose contained in January. Given the Board's rule, Staff could only respond in November to new material in the October testimony not included in the January declarations.
But the Board violates that direction and permits in testimony which is entirely directed at the original January calculations.
There is no discussion in the Staff rebuttal of the only new material not in the January declarations--i.e., the effect of non-equilibrium and longer shutdown assumptions. No, the full " rebuttal" is an attack on the January initial dose
. calcula,tions, despite Staff promises that it would not do so (see Board Order of April 7, memorializing said p~ ledge'and ordering
.that-it be obeyed.) The Board's rulino that the Staff testimony dealing with old material contained in the January declarations ,
.is based on the assertion that the Staff testimony responds to both the January declarations and the October rebuttal (i.e.,
because the. original calculation is mentioned-in passing in showing how the new assumptions alter, or do not alter, the original-result.) But the Board's standard was clear: rebuttal is not proper to the extent is responds to old material that was contained in the January declarations. This violates the Board's standard,' prejudices CBG, injures the public by_further delay, and destroys the potential for an accurate record (if, as the Board seems to imply, CBG will be forbidden from demonstrating what-is wrong with..the new Staff calculations).
This raises another issue which should be mentioned at this point. The Board lets in rebuttal it views as improper
- aad rebuttal it argues--incorrectly, we believe--is wi thin the scope it has set _down. The rebuttal it views as improper it provides CBG an' opportunity to respond to. But Strangely,
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it further rewards UCLA for its failure to bbey the rules by permitting not only its late-filed testimony on shutdown in, but yet anot6er chance to put in a new analysis on the subject.
Can it really be assumed, af ter this ruling, that UCLA will restrict itself to rebutting CBG's analysis of UCLA's fourth excursion analysis, and not instead put in (in the guise of demonstrating how conservative, if erroneous, the fourth one was) a new, fifth analysis. If UCLA is to be penalized for late-filing by having CBG respond, how does having UCLA respond again involve any remedy?
Additionally, the Board is not explicit as to its intent with regards the material it is admitting that it says was within the scope of rebuttal. Does the Board intend to forbid CBG to put forward evidence to demonstrate the falsity of this new material? If so, then the Board has established an extraordinary definition of the "public interest" standard.
The Board has admitted UCLA's late-filed testimony, which violated the Board's rules and could have and should have been filed long ago, with the Board arguing that the public interest in a full record requires the improper Applicant material, material which could'have'been filed long ago, be admitted. However, if'the Board forbids CBG to introduce evidence showing how any of the new material admitted (e.g. the absurd puff calculation in the new Staff dispersion testimony, the extraordinarily mistaken flux calculations attached to the Wigner rebuttal, the upside down comparison of Windscale and UCLA fire potential, and so on) is factually incorrect, the Board will then have established an upsidefdown public interest standard. It will permit in evidence into the-record that could have been filed long ago but wasn't, which assertedly supports UCLA's interest in obtaining a license, but the-Board would refuse to hear. evidence, which could not possibly have been introduced earlier-(because the " rebuttal" was not then filed when CBG testified) which demonstrates public risk. Such a standard says the public interest is grant of liconse and refusal to consider information which demonstrates that such grant is
contrary to public health and safety.
Certain other aspects of the Board Order seem particularly arbitrary and capricious to CBG. CBG moved to strike UCLA's t,estimony about plutonium risks because all of CBG's assertions thereon were in its direct and January declarations, there being no reference at all to plutonium in the rebuttal.
UCLA's " rebuttal," however goes all over the place dealing with whether plutonium is toxic.at all and assessing nuclear weapons accidents, If UCLA was to respond to the plutonium matter, ,
it had to do so in June, because the matter was addressed in the January declarations. The Board, rather than striking UCLA's testimony as violating the Board's rulingg on scope of rebuttal, backstrikes CBG's testimony from eight months prior, despite the fact that there is no motion for reconsideration before it, nor would any be timely or warranted. Further, the March 22, 1984, order directly violates the Board's September 1983 Order which exolicitly admitted the plutonium testimony now backstruck. The Board then ruled that since UCLA is requesting plutonium sources as part of the requested license, and since fire is an accident scenario, the risks of plutonium fire were admitted. The Board now arbitrarily retracts rulings made long ago.
Likewise, the Board long ago ruled that emergency planning issues were outside the scope of this proceeding.
CBG complied; Staff now does not. The Board, admitting that the Staff emergency planning testimony is outside the scope, lets the material in anyway.
Likewise, the Board long ago ruled that the issue of whether violations of Tech. Spec. limits on excess reactivity mattered to public health and safety was to be resolved at this stage of the proceeding. The Board now attempts to reverse that ruling.
a ~
e A proceeding must be regular and fair. In order for it.to be both regular and fair, adjudicatory bodies must be neither arbitrary nor capricious. Their rulings must be expected to mean what they say; directives given must be expected to be enforced; procedures laid down must be oxpected to be followed; and decisions made must be expected to remain in place, unless some very good reason requires their timely reconsideration and proper procedures are followed regarding said reconsideration.
, A proceeding loses all regularity and fairness if the parties cannot expect rulings to remain in force, rules to be enforced, and procedures followed. For example,.the parties were repeatedly told by the Board that the normal panel testimony procedure would be followed in'this case, i.e. that questions go to the panel and whoever has knowledge of the answer answers. However, when'the hearing occurred, the Board over-rode its previous st'atements on the matter And normal practice,and permitted the absurd procedure of q'uestions being directed to the individual
-on the panel who was not involved the most in that aspect of the
= testimony, and the one who was most involved and could provide the information being sought being muzzled, forbidden to provide it for'the-record in response to the question. Similarly, when the Board admonished the parties not to move for summary disposition in a shotgun approach because it would delay the proceedings, the:other parties did notbelieve the Board would enforce the admonition and were correct. The delay predicted by the Board occurred, and CBG, which had intended to go to hearing on an almost exclusively defensive basis, demonstrating the failure of.the-Applicant to meet its burden by showing through cross-
. examination the falsity of the " superficial" analyses upon which it relied, was forced in a period of a couple of months to find a score of affiants in order to counter the motions for summary disposition. Whereas at hearing it could rely on cross-examination, which had~been its intention at the time, it stood to lose the opportunity for demonstrating on cross the falsity of the-Applicant
- material .if it did not find affiants to counter the motions for summary disposition. (The Board's implications on this matter are
surprising; CBG had notified the parties of the two witnesses it intended to call before being forced to go through the summary disposition charade, and contacted all the other individuals to do affidavits after the Board ruled that it would not enforce its admonitions about summary disposition and that CBG must provide affidavits on all those matters or stand in jeopardy of not being permitted a hearing. We note that the Board required CBG to file declarations on all twenty contentions, even though only a small portion of those have been ruled on or proceedings begun regarding).
The Board has said it would not tolerate further delays (pledge at last day of October hearings), yet it has so tolerated. It has admonished parties not to move for sommary disposition fo" Durposes of delay, yet it has tolerated .
such shot-gun motions and such delay. The Board has admitted plutonium issues into this phase of the hearing; and then without motion or timely reason, back-struck testimony it already admitted after overruling objections thereto. The Board has ruled that issue of whether violation of tech spec limits on excess reactivity could pose a hazard should be considered at this phase, then says the opposite months after. The Board forbids consideration of probability (i.e. credibility) of accident in scope of the inherent safety procedding, then admits it for one of the arties. The Board forbids consideration of emergency planning issues at this phase of the hearing, then permits it for one of the parties. And the Board directs, and twice repeats the direction, that rebuttal must be only for new material not included in CBG's January 1983 declarations, then violates its own rulings thereon, saying that for substantial portions of the issues involved, despite failure of Applicant to meets its burden and to obey the rules, we are going to start all over agaia, at the begin ning one more time.
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. WIGNER TESTIMONY (a) Pea rlman-Ostrander Calculations On Page 3 of CBG's objections to the Pearlman/0 strander calculations, CBG made several specific objections to portions of the proferred testimony in addition to its general objection that it.was not proper rebuttal. It is unclear whether the Board ruled on these specific objections: (i) the reference in the testimony to the same 15 C figure (modified further) struck by the Board at Order p. 12, (ii) Pearlman's response to the Bradshaw data not of record and thus irrelevant as rebuttal, (iii) Pearlman's hearsay testimony reoarding conversations with Dr. Nightingale, not available as a witness. These are discussed below.
(1)'the 15 C estimate, further modified.
CBG, in its objections, renewed its objection to the
-15 estimate put forward by Dr. Pearlman on re-re-direct, as well as the further modification.thereto contained in his 19 page attachment to his " rebuttal." (See CBG objections to this testimony at 1 and 2, and the latter revision at 3.)
Pearlman's repeat of the calculation that resulted initially in a 15 estimate,-then revised to 11 to 26 in the " rebuttal"~
(particularly in_ the last two lines of page 8 of the Pearlman calculations) was not objected to being. struck by'UCLA, asserting that it was based on the erroneous Ostrander calculations and thus not correct. The Board struck the 15 estima a from the. oral testimony, but there is no explicit indication of whether the related 11-26 estimate, based on the same erroneous calculation by Ostrander, and not objected to being struck by UCLA, was also struck.1/ (UCLA, at page 18 of its December 2 response,. indicates that both Pearlman estimates were based on calculations by Ostrander'which have been found to be in error and indicates that the er.roneous value directly enters calculations in UCLA's rebuttal testimony in the "last two lines on page 8 of the Wigner Energy Calculation testimony.")
1/ The 15 U C figure struck by the Board from the oral testimony was modified in the rebuttal bv use,of a different energy storage rate,-but continues to be based on the Ostrander calculation found to be'in error.
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-W-There was no _ objection proferred by UCLA in its response to _ striking the version of the 15 estimate in the written testimony, based as both were on the same erroneous Ostrander calculations. It would be meaningless to strike the oral 15 figure and permit in its written equivalsnt. The Board should clarify that it struck both the oral statement from re-re-direct and the written astimate identified by Applicant as the last two lines of page 8. The footnotes to those last two lines (i.e. "f" and "g" found on page 9) should likewise be struck, as should the text in the last two sentences in the first
' paragraph on page 11 which repeats the same material, as should the last two sentences in the paragraph at the top of page 8, which repeat in formula form the material summarized in the last two lines of the table at the bottom of the page already identified by Applicant. As stated above, it would be meaningless to strike the oral 15 0 figure and permit in its written equivalent, equally dependent 6pon calculations admitted to_be in error and to which no objection to striking was timely interposed by Applicant.
(ii) Pearlman's " rebuttal" to Bradshaw material not in direct.
Also on page 3 of the objections, CBG interposed an objection to delaying the proceedings by UCLA " responding" to material not even of record. As indicated in Russo v. Peikes, 71 F.R.D. 110 (1976), there are two independent grounds for excluding rebuttal testimony: the oroferred rebuttal raised new issues rather than beina resoonsive to the opposing party's testimony, and the evidence sought to be introduced relates to issues that were known to the plaintiff at the time of his case-in-chief. The Board has, despite its own Orders to the co n t ra ry , permitted in testimony in violation of the second standard; CBG also' objected to Pearlman's " rebuttal" to
-the Bradshaw material (at pages 8 and 9) not even included in CBG's admitted testimony.
.. -l5-(iii) Pearlman's hearsay testimony regarding what Dr. Nightingale
" meant" by.certain statements.
At page 3 of his testimony, Pearlman attempted to testify as to what Dr. Nightingale means by a certain passage in his book. CBG objected on hearsay grounds, and no rul'ing appears to have issued on this matter.
(b) " REBUTTAL TO CBG'S WIGNER ENERGY TESTIMONY" (i) The material on page 4 The Bradshaw thesis is not of record, and thus rebuttal to its use is not rebuttal. (See discussion regarding Russo standard in. identical matter on previous page). Furthermore, the reference to it due to an editorial error (i.e., reference to George 5.~Bradshaw thesis rather than George'B. Taylor)
' occurred in the January declarations, and therefore .had to be
" rebutted" in direct filed in June. To permit in non-legitimate rebuttal,-late-filed, the Board has ruled the information must be essential to a decision, hardly the case with " rebuttal" to non-admitted material. -Credibility issues should have been raised in. June;-the delay caused by such late material and continued license possession due thereto is hardly justified for such material.
(ii) Last paragraph on page 5--purely rebuts CBG's assertions in its January declarations that the proper storage rate, from Nightingale, is .6 to 1.0. Any resoonse should have been in June; there is no justification to delay resolution of this case for such material.
(iii) top paragraph on page 6--all responds to material that was'in the original declarations and not included in the admitted direct testimony. It is thus neither legitimate rebuttal (outside scope of direct) nor timely (responds-to material in Jan. declarations).
Further, it is cumulative of Pearlman's June testimony. No justification to delay agency action with regards continuing license possession for such material--late, cumulative, outside scope.
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l (iv) Q & A 3. The issue of the_ correct thermal flux for this 12 reactor--whether-the 1.0 x 10 cited in the Battelle Study, 12 the 1.5 x 10 figure cited in the Application, or a figure double that of the Application as' indicated by CBG--has been !
at issue since the January declarations. CBG's reliance on the' Taylor measurements was admitted into evidence af ter Applicant's own Mr. Ostrander testified that the Taylor measurements were twice those of the figure he and Dr. Pearlman were using.
Measurements to rebut one's own witness are not permitted to be late-filed " rebuttal." UCLA knew since January that the actual flux 'of the ' reactor was at issue, had known for a great time (many years) that the Taylor measurements contradicted the less conservative value they were currently using for the Wigner value, and any response to. or new measurements of the flux should have occurred long ago. It is absoluthly improper to delay these proceedings because UCLA only now is getting'around to measuring _ key core parameters, when those parameters are central to the issues in this case and have been at issue for a long time. The Taylor measurements were brought up by UCLA's Ostrander, not CBG, in July; there is no cause to delay matters and permit continued license operation because it took UCLA so long to get around to_take measurements _in an effort to explain away a discrepancy its own witness raised.
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" REBUTTAL TO CBG'S PANEL I TESTIMONY" The Board rejects outright, without explanation, CBG's objections that a substantial portion of the testimony responds to mattv>s raised in the January declaration and should therefore, according to the rules set down by the Board, have been responded to-in June, rather than causing a delay now. The Board. simply indicates that it is its view that the testi.uony " fairly responds" to points.made in CBG's Panel I rebuttal. CBG reiterates that the standard is not whether reference to certain matters can be found in CBG's rebuttal, but whether UCLA is responding to points that were included in the January declarations and therefore should have been responded to in June, avoiding delay and making sure response thereto occurred from CBG. The Board is reminded of its directive to the parties- "that rebuttal would be limited to new material not filed by CBG in January."
(Letter of September 22, 1983, emphasis added). The fact that a reference to material included in the January declarations can also be found in the October rebuttal (often of necessity in such rebuttal)-does not eliminate the standard the Board has set--that rebuttal is limited to new material not included in the January declarations. -The material in this " rebuttal" is essentially all response to old material included in the January declarations.
CBG urges the Board reconsider.its ruling regarding the matters identified in pages 1 and 2 of CBG's objections to this testimony.
As to the Board's comments in paragraph two of page 19 of its Order, that it is only interested in whether the paper
. Technical Specifications limit proposed by UCLA is safe, not whether violation of the-Tech' Spec limit could be of risk to the public, CBG reminds the Board.that the contention being litigated specifica'lly addresses the issue of violations of the Tech Spec excess reactivitf' limits and reminds the Board
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-Is-of its previous rulings on this matter. See Board Memorandum and Order of March 23, 1983, which set the scope for this set of hearings. Page 9 of said Memorandum and Order indicates that the issue of whether there has been a history of violation
. of Tech Spec excess reactivity limits is deferred from this stage, until the inherent safety hearings resolve the issue whether "to exceed limitations could have adverse consequences."
The Board-cites p. 843 of the prehearing conference transcript for this matter. The Board established the issue of whether violations of the Tech Spec limit was of safety consequence as within the scope of the hearing--to reverse that ruling now, after substantial evidentiary hearing, would be arbitrary and capricious. CBG did not perceive the conversation reported in the October hearing as having the effect asserted now by 4
_the Board as reversing its prior rulings on the scope of this phase of the proceeding. To do so, beyond the procedural injury due to constantly shifting scope and inability to rely on prior rulings, would be to ignore the real-world safety issues and concentrate only on paper issues--i.e. , if UCLA obeys all the procedural' rules, is-the. reactor safe, rather than the issue set by the Board for. hearing, which is if UCLA violates the procedural rules, is the reactor inherently safe?
Permitting in UCLA's extensive, cumulative testimony about its " painstaking" procedures for. assuring compliance with Tech Spec limitations is to erode the Board's March 23, 1983, scope rulings saying that the issue of compliance with Tech Spec limits is outside the scope of this set of hearings and
.that this hearing only deals with whether such violations would matter.
CBG once again objects to the Board's erosion of its previous scope. rulings, determining that the issue of
'" credibility" of accidents is not involved here, but rather
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finherent safety.
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CBG reasserts that the injury occasioned by further delay and continued license possession thereby is in no way justified by permitting in the material in this testimony, which generally-responds to matters such as hot , graphite, cold-water, graphite coefficients, plate spacing reactivity effects, .
rapid insertion possibilities (again outside scope, issue as
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Judge Bright has repeatedly framed it is not how the incident occurs but whether step insertion of the available excess reactivitywo0ldbesafelyself-limiting),andsoon. All of these matters were raised by CBG in January of 1983 and should have been responded to in June.
The Board's standard set for rebuttal was only new material not in the January declarations could be responded to; that standard is clearly violated here.
All'the assertions about " stuck-rod" criteria and differences with1SL-1 insertion systems is outside the scope set here: inherent protection if the available reactivity were somehow rapidly inserted.
"UCLA'S REBUTTAL ON CREDIBILITY OF A GRAPHITE FIRE AT THE UCLA REACTOR" Windscale-UCLA comparison The Board asserts that, although CBG dealt with the Windscale fire in its January declarations and direct, it
" changed its emphasis" and "does comparisons between Windscale and the-UCLA Argonaut" and that therefore UCLA should be permitted to " rebut" matters related to Windscale. The Board repeats UCLA's assertions that the Windscale discussions in the January declarations were only for the proposition that graphite can be made to burn-(which essertedly UCLA now does not contest, after quite some representations to the contrary.)
However,-it is simply not true that the Windscale discussions
in the January declarations were only for the proposition that graphite can burn'and that comparison with the UCLA reactor-(i.e., citing Windscale to demonstrate UCLA can likewise catch fire) was newly made-in the October rebuttal.
The assertion that the reactors were similar and that the Wi nd s e de fire demonstrated a similar fire could occur at UCLA was made in the January declarations--see even the very first-paragraph in those declarations. The only reference to Windscale in the rebbttal are a few sentences on page 4,-
which dispute Wegst's assertion that thermal conductivity of _ gra phite is too good to let it be " considered combustible." .
UCLA's rebuttal is not addressed to that narrow, "new" point, but to the broad, old points raised in the January declaration.
The Board's permitting in attacks on assertions of similarity between the reactors, made in January,.in." rebuttal" in November rather than as it previously directed be done in June, would violate its own standard.
Regarding answer 4, the Board admits that the answer "does not rebut CBG's testimony in the sen.se of contradicting it," nonetheless the Board will permit it in because it provides a perspective "not'otherwise-present." That is not rebuttal, and the injury occasioned by non-rebuttal at this stage is not justified.
Regarding answer ~7, the issue is not that UCLA " discusses" a study-upon which CBG did not rely, but that UCLA's answer consists of rebuttal to a study upon which CBG did not rely.
A big deal was made by UCLA to' get CBG to identify three studies that formed tiie basis for a specific assertion by CBG. While-genuine rebuttal would be to show problems with those studies, UCLA chose to ignore them. While genuine rebuttal would be to counter those_ studies with another study which UCLA asserts is relevant, UCLA chose not to do that either. Instead, it rebuts the Woods study, asserting it is not relevant to the UCLA
' situation. BUT NO ONE EVER SAID IT WAS. This is not rebuttal of CBG, or of anythina in-the record, and does not justify the injury 6ccasioned by its inclusion as " rebuttal."
'.. - 2.1 -
The Board asserts UCLA may " rely" on a study other than those relied upon.by CBG--but UCLA is not " relying" on the Woods study, but attacking it.
Regarding the second paragraph of answer 10, the Board misunderstands CBG's objections. The issue is not that the normal airflow is irrelevant to fire conditions--a matter the Board says should be examined on cross-examination--
but rather that CBG's assertions that the normal airflow is irrelevant to fire conditions, which UCLA now attempts to rebut, was raised in the January declarations and UCLA, under.the Boa'rd's rules regarding rebuttal, was required to rebut those assertions in June and cannot now. It is the lateness of the material, the lack of genuine rebuttal,
.that is the issue. .
Regarding the third paragraph of answer 10, the Board is in error when it says that"CBG raised the issue of the so-called Dahl burning rig experiments." In actuality, Dr. Wegst raised the. issue in his direct. His assertions at page 8 of his direct regarding the. necessity (he thought) of forced airflow was based on the Dahl burning rig experiments reported in Nightingale.
~. On cross, when the basis for his assertions were pursued, he
. admitted that the Dahl experiments apparently did not indicate, as he had previously- thought, -that f orced airflow was required, and said he had not fully understood those experiments, even though he had relied upon them for the statements in his testimony. Wegst had asserted the Dahl experiments were relevant to the UCLA case; when shown they demonstrated the opposite of what he had asserted, he now attempts to assert that the experiments upon which he relied are not after all relevant to-the UCLA case. This is rebuttal to himself, and an' attempt to repair on " rebuttal" damage done to himself on cross---not genuine rebuttal, therefore. He first raised the Dahl. experiments, he first asserted they were relevant to UCLA, and he already'made the point that (like all materials)
. graphite had to be brought to its igniti6n temperature to ignite it.
m
At best it is cumulative; in reality it is rebuttal to himself and an attempt to repair cross-examination damage--certainly not within the scope of legitimate rebuttal, nor worthy of the injury occasioned by its contribution to opening the floodgates of this proceeding when rebuttal should be very narrow and quick.
The Board admits that answer 11 does contain repitious material, but argues that it does respond to specific comments in CBG's rebuttal. The issue is not whether it responds, but whether the resoonse is non-cumulative.
"UCLA's REBUTTAL ON CREDIBILITY OF CBG'S FISSION PRODUCT RELEASE MODEL" Regarding answer 2 on pages 5 and 8, the Board asserts that this material does not rebut the Battelle study but rather
" demonstrates that study's conservatism." We find this to be an arti'ficial distinction.
The Battelle study asserts that 2.7% of the gaseous fission products in the UCLA fuel would be released in a fuel handling accident (i.e., non-molten conditions). The testimony asserted to be rebuttal of CBG (which accepted the Battelle study conclusion that there could be releases from non-molten fuel and did not rebut said assumption) instead asserts that "under non-molten conditions there is no mechanism for release."
This rebuts Battelle, which assumed such a mechanism; Battelle
-was adopted both by Staff and Applicant. It is not permissible rebuttal to contradict the fundamental-assumption of one's own study.' Whether CBG's testimony accepted Staff and Applicant assumptions' contained in Battelle is not justification for
" rebutting" one's own assumption.
The assertion that the rebuttal is not rebuttal but demonstration of'" conservatism" makes the concept of genuine rebuttal meaningless.
Under such a scheme, one can tear apart all the underlying assumptions of one's own studies, the conclusions of which turn out to be embarrassing, in the guise of rebutting one's opponent. To permit the Board's standard would amount to saying rebuttal of one's own testimony is permissible rebuttal, tearing apart statements previously torn apart as untrue, because they &monstrate that the conclusions one testified to are conservative. (I.e., our methods may have been 100% in error, but accept our conclusions because here is another study showing how' wrong our assumptions were.) This is not rebuttal of CBG, but self-destr'uction by Staff and Applicant; the injury occasioned is not justified by such testimony.
Similarly, answer 4. Staff's Hawley raised Parker and Creek, not CBG. CBG merely demonstrated that Mr. Hawley .tisread the Parker and Creek results. UCLA does not dispute the error CBG pointed out, but instead asserts that Mr. Hawley made additional errors in his reliance on Parker and Creek.
~ This is not rebu'ttal of the matter raised by CBG, but discrediting on another matter the testimony of the author of the study that forms the basis of one's own Safety Analysis Report and principal case. UCLA's rebuttal to CBG should be restricted to the specific matter raised by CBG--the trace irradiation level of the fuel samples relied upon by Mr. Hawley--
rather than a new issue not raised by CBG.
"UCLA'S REBUTTAL TO CBG'S TESTIMONY ON DISPERSION" This is among the most egregious of. the material permitted in by the Board as within the scope of proper rebuttal according
-to the rules it had established. It, and the Staff testimony on the same subject, are essentially attacks on the CBG dispersion calculati6ns presented in January 1983 declarations and unchanged in its June direct testimony.
Q1 asks about the meteorological conditions at the UCLA reactor
+
CBG's sole discussion of this matter is contained in its January declarations and related June d'irect. There is not a single direct reference to UCLA meteorological conditions
- in the rebuttal, certainly none "new" in the context of what was in the direct. UCLA is simply trying here to remedy the error it made in putting in only conclusionary statements on these matters in Dr. Morewitz' direct testimony last June.
If UCLA wished to respond to CBG's assertions about the particulary meteorological conditions at the site, it should have done so, as r:auired by the Board's ruli'ngs, in June.
Remedying poor litigation strategy of withholding factual material from conclusory direct testimony is not proper function for rebuttal.
Answer 2 likewise is straight response to CBG's January declarations.
The January decidrations used the disparsion model of l
Reg Guide 1.145 to calculate dispersion at the UCLA site.
UCLA's attack on asserted Gaussian components of that model relate only to the model used.by CBG in its January declaration.
CBG did not change its model, nor make any explicit discussion of Gaussian plume models not contained in its direct, in the rebuttal. The A-2 attack on Gaussian models-must, if the Board's rules are to be obeyed, have been filed in June, for it
~
relates to the model'CBG used in January, which is unchanged in CBG's rebuttal. CBG objected to the reference to Professor Wurtele with the clear understanding that a similar reference had already been. admitted--over CBG's strenuous objections--
because Professor Wurtele was not'available for cross-examination.
CBG continues to object to evidence based on such hearsay.
Regarding Q & A 3. First of all, we note that CBG's objection to the first . sentence in the answer as argumentative and unseemly was not addressed by the Board in its Order. As to the substantive matters raised in CBG's objection, the Board does not address whether ~ the material responds to material in CBG's January
. declarations, but merely says it is rebuttal to answer 8 of k
- LS- l l
l CBG's rebuttal. The issue is not whether the answer responds to items mentioned in the rebuttal, but whether it responds to new material not contained in the January declarations, the September 22, 1983, standard set by the Board, and it clearly does not. Most of the item the question asked for a response to was contained in the January declarations (i.e. that X/Q is a function of dispersion some distance from a source, in Aftergood R 9-10). The only new issue raised in the Answer 8 and supposedlyaddressed in the answer is whether x/Q can be a function of dispersion at the source (i.e., as opposed to some distance downwind), and this matter is not even addressed in the answer. The text of the answer is all material which should have been included in Morewitz' direct in June, but because of apparent litigation strategy to use only conclusory statements in the direct, there is now an attempt to late-file the factual material that should have, according to the Board's rules, been in the direct.
Pages 7 - 10 on Plutonium Hazards. The Board's ruling in this matter is frankly stunning. CBG objected to UCLA's response on plutonium fire matters as untimely, because those matters had all been raised in the January declarations.
In response, the Board strikes b~ckstrikes a CBG's testimony on the matter filed eight months ago and admitted by the Board in its September 30, 1983, Memorandum and Order. The Board has no motion before it for reconsideration of that previous ruling, nor would any be timely. But on its own, it reverses its own decision of many months ago. The Board said in its September 30, 1983, Memorandum and Order:
The [ Staff and Applicant _7 objections assert that dispersion of plutonium'in a fire is outside the scope of this phase. We agree with CBG that, because a license is sought for two Pu-Be neutron sources and because fire is an accident scenario, these paragraphs are within the scope. The objections are overruled.
- p. 9, emphasis added
i The. Board makes reference in its recent rulino to an assertion that UCLA doesn't.use the Plutonium source for the reactor.
The Board has already taken official notice of Commission documents indicating that UCLA has in the past used the Pu-Be source as a reactor start-up source. The Board also has before it--and has for a very long time--a motion for summary disposition by CBG which alleges that the Pu-Be source is no longer needed by the reactor and thus poses an unnecessary public health and safety risk. (This motion is largely undisputed by the opposing parties in the.ir responses thereto, and yet has not been acted upon.) Either the Board must assess what the risk is posed by the Pu-Be source (froma fire in the reactor or wherever the Pu-Be source can be located), or it must grant CBG's motion that the request for a license for the plutonium source that is part of the current license application before it (see page 5 of the Application) is unnecessary and thus poses an unnecessary risk and must be denied. If the Pu-Be source is unneeded, the application for it should be denied; if it .
is not denied, the risks associated with grant of the application must be' assessed.
The most ;significant point.here is that the Board already decided the issue-- "because a license is sought for ...
Pu-Be neutron sources and because fire is an accident scenario..."
CBG's testimony was ruled admissible many, many months ago by this Board. Backstriking, without even a motion for reconsideration or any reason for late action, is arbitrary and capricious and can only lead to a situation where there are no rules.
If the Board's statements at page 25 of its recent Order are the result of a failure to recollect its previous September 1983
. r0 lings.to the contrary, and the Board. reconsiders the more recent opposite retrospective striking of evidence from the record (evidence CBG believes is of great importance to a determination of public health and safety), the Board should be~ reminded of CBG's continued objections to the proferred k-
t-t
-17' testimony by UCLA on the matter. Please see the initial objections. Essentially, there is nothing new in the CBG rebuttal whatsoever on the plutonium issue; everything UCLA attempts to rebut was in CBG's January declarations. (The
,. Bolid will note _no reference whatsoever to plutonium in the CBG rebuttal on dispersion.) Further, the testimony attempts
_. to. litigate the issue whether plutonium is dangerous and various nucle 3r weapons accidents, far afield. Whatever UCLA wished to say on the ' subject of whether its request for plutonium /s'ources as part of this application represented i a public 'hjilth and safet,y hazard should have been said in ,
June, in esponse to CBG's January declarations, as per the Board's rulings on 'the scope of proper rebuttal . ,
s ..
STAFF TESTIMONL OT DISPERSION '
- > l" Theadmissionofthismaterialas$egitimaterebuttal is, in CBG's' view, the most at odds with the Board's rules regarding proper scope'o'f rebuttal of~any~'of'the oroferred items.
=
, +
, ;,C2G's, January declarations estima te'd doses to the public 7
from t fu'el handling accident and a-25% iodine release a t v a r,i o'u s d i's't,a sn ce
- z. sf rom the re a c to r room wa l l o u t , assuming (as did Battelle) equilibrium inventory and accident occurring
..at shutdown. ' I n ,((3 rebuttal, CBG restricted itself to three basic matters: ( ~1 ) :he effectrof intermitten't, non-equilibrium conditions'on ils previous :alculations, (2) the effect of shutdown on i.t,s pr'evious calculations, and (3) critique of certain' assertions about the appropriateness of dismissing the standar,d reg. guide for dispersion and replacing it with certain me.asurements at Rancho Seco yade by Sagendorf to demonstrate that.the Reg. Guide was' appropriately conservative.
. -t
/ . .
i
~ T h e S t a f f',
in the guise of rebuttal,/ attacks the January
~,-/
calculjtions~aswrong. It does,not dispute CBG's assertions
- ,pabout*the effect that intermitten,t ,
running has on the initial
. ,w g 4
- ~.
,- g j ,.*
% , fy .
j u _ .
+ , ._
calculations, nor the effect of shutdown on the initial calculations--
the only matters that would be permissible rebuttal under the Board's rules thereto----but rather attacks the initial values found in CBG's January declarations. The Board's rule regarding such rebuttal was unmistakably clear:
" rebuttal testimony would be limited to new material not filed by CBG in January." (September 22, 1983, emphasis added).
If the Staff disputed the original CBG calculations of dose it was required to respond in June. The only response permissible in November is to new material not included in January.
The Board, in permitting in this material, creates an
. interesting standard. If, in discussing the effect of shutdown or intermittent running on CBG's initial calculations, CBG's rebuttal mentions, as it must, the original calculations, then Staff rebuttal is permitted to rebut, not merely the new material not included in the January declarations (the Board's explicit standard), but also old material that was .
. included in January 1983. In the circumstances, C8G could not show how the dose is reduced in non-equilibrium situations without including the dose for equilibrium situations submitted first over a year ago. But although the only new material not included in the original declarations was the effect of shutdown and intermittent running, the Board permits in a rebuttal to the old information (without there even really being a rebuttal to those two narrow matters which form the only new information thereon in the CBG rebuttal.)
A good case in point is Staff answer 15. CBG asserted it
^
responds to CBG's use in January 1983 of Reg Guide 1.145; the Board says CBG mentioned 1.145 in its rebuttal. The issue is not whether an old matter is mentioned in rebuttal, but whether rebuttal to an old matter is permitted. This is even more so regarding answers 9, 10, and ll--Board's argument that
" Staff's testimony addresses both L the January declarations
- ~
_ Iq-s and the October rebuttal 7 is a tacit admission that the material violates the Board's requirement that rebuttal
, wf-ll not be tol~erated which resoonds to old material raised in'the January declarations.
Fuhthermore,theBoardpermits in assertions related to emergency response. In its Orders establishing scope, em,ergency response issues were explicitly forbidden here.
The issue was whether the facility was inherently safe--
without following proper procedures or proper function of engineered safety features. The Board admits this, by saying i.
While technically emergency resoonse to a dropped fuel element may not be within the scope of this portion of this proceeding..." but admits it anyway. The Board's rulings about scope lose their meaning if they are not enforced, and if exceptions are created after the fact, after other parties have already testified. 'Furthermore, there is still no showing why raising the emergency response issue (albeit outside the scope) at this stage is not in-violation of the other Bcard rulings on rebuttal scope--CBG did not raise the emergency response matter, so if Staff is to raise it, why didn't they in their direct? What in CBG's rebuttal is new from its direct that would permit such rebuttal by Staff?
Answer 4 the Board admits is cumulative, however admits it.
Cumulative matters are not permissible rebuttal .
CBG requests reconsideration of the entire objections.
Staff could have raised its responses to CBG's dose and dispersion estimates anytime after they were released over a year ago. There is no excuse for witholding them until rebuttal--
. precisely what Staff pledged not to do. In addition to the delay,_and thus the further possession of the license,
~
they. destroy the Board's opportunity to properly scrutinize the new' calculations by Staff, because CBG may not have an opportunity tc demonstrate their falsity.
III. Conclusion If the Board's Order on the bulk of the rebuttal stands, and if the Board fails to suspend the ficense as called for in CBG's Motion of January 9 or threatened in its Order of February 24 alleging material f alsehoods, the Board will have given over its authority to regulate the proceedings to two of the litigants, the proceeding will never end, and the public health and safety will remain at risk for much of the proposed license period without a finding of safety. The injury occasioned by the Board violating its own rules regarding proper scope of rebuttal--continued license possession elongated by carte blanche for delays--is ignored in the Board's March 22 Order refusing to enforce its previous rulings on the matter.
The Board's Order, if it stands ortif it is not accompanied with license suspension in the interim, rewards Applicant for what the Board describes itself as a " nonchalant attitude toward the substantive issues in the case", and failure to provide evidence.of record sufficient to meet its burden (e.g. "There was not much in the-record to support UCLA.")
If the Board's Order stands, and if license suspension is not ordered, no incentive will remain for Applicant to obey any future order. The only penalty for violation of Board Orders is further delay and continued license possession--
precisely what the Applicant. desires. The Board's Order if not reconsidered or matched with license suspension to eliminate the hjury occasioned, rewards violation of the Board's directives and eliminates Board authority. CBG respectfully requests the Board reconsider.
Res e ful s mitted,
,,/\-
Daniel Hirsc President dated at Santa Cruz, CA April 6, 1984
2 - __
a: .
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATCMIC SAFl!TY AND LLCENSINC BCARD In the Matter of Docket No. 50-142 THE REGENTS OF THE UNIVERSITY CF CALIFORNIA (Proposed Renewal of Facility License)
(UCIA Research Reactor)
DECIARATION OF SERVICE .
dENNONNNY 8NIIPhlITNY Tr E A A n 24, i m uraer, eart 11 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: Apri1 6, 1984 .
John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Clenn R. Woods U.S. Nuclear Re6ulatory Commission Office of General Counsel
, 390 University Hall Dr. Emmeth A. Imebke 2200 University Avenue Admindstrative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board i
U.S. Nuclear Regulatory Commission Mr. John hy Vashington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 Glenn 0. Bright Ada*nistrative Judge Lynn Naliboff Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washingtai, D.C. 20555 1685 Main Street Chief, Docketing and Service Section '
Office of the Secretary Dorothy Thompson U.S. Nuclear Regulatory Commission Nuclear law Center Washington, D.C. 20555 6300 Wilshire Blvd., #1200 Ics Angeles, California 90ch8
. Counsel for NRC Staff U.S. Nuclear Regulatory Commission Ms. Carole Kag sq.
Washington, D.C. 20555 Ato and Licensing Board Fanel ,
attention: Ph. Colleen Woodhead U.S. p. ear tory Commission Washfhgton D.C. 2055 s.
William H. Cormier
- office of Administ2ative Vice Chancellor
. University of California i
- - 405 Hil 6mrd Avenue ,
Los Angeles, California 90024 t,1 gi,,g l President l COMMITTEE TO BRIDGE THE GAP l
l
.