ML20090J672

Response to Applicant Request for Reversal of ASLB 840413 Finding of Matl False Statements.Requests Hearing in Which Questions Unanswered by Two UCLA Responses Can Be Thoroughly Explored.Declaration of Svc Encl

ML20090J672
Person / Time
Site:	05000142
Issue date:	05/09/1984
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8405230099
Download: ML20090J672 (68)

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Fay 9,1984 R&D '

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UNITED STATES OF AMERICA .E. ~~ = -

NUCLEAR REGULATORY COMMISSION -

_BEFORE THE ATOMIC SAFETY AND LICENSING BOARD }

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

(UCIA Research Reactor)

CBG RESPONSE _ TO APPLICANT'S REQUEST 70R REVERSAL OF THE BOARD'S APRIL 13 FINDING OF__ MATERIAL FALSE STATEMENTS l

l Committee to Bridge the Gap l 1637 Butler Avenue #203

' Ios Angeles, CA 90025 Telephone: (213)478-0829 l

8405230099 840509 PDR ADOCK 05000142 O PDR d J

Introduction In its Memorandum and Order of February 24, 1984, the Atonic Safety and Licensing Board raised concerns that the Staff and Applicant counsel had made substantial misrepresentations before the Board.

Staff and Applicant were directed to respond by March 9 why action should not be taken against counsel and why the license should not be revoked, suspended, or modified for mterial false statements.

Responses were submitted on March 9, and on April 13 the Coard issued an Order concluding, inter alia, that material false statements had indeed been made by Applicant ard that its attorney William H. Cormier should be formally reprimanded. 2 / The Board also concitded that information it had in its February 24 Order directed be provided had not, in fact, been provided, and gave the Applicant an additional opportunity to provide the required information.

On May 1, the University responded to the April 13 Order, requesting, inter alia, that the Board overturn its holding therein, and that a hearing be held should the Board not reverse its ruling.

CBG, the party injured by the representations the Board has determined to be materially false, files in opposition to the request for rever-sal of the finding of material false statements.

Furthermore, because of the seriousness of the questions that rerain unanswered in the Applicant's responses, and the cloud that thus hangs over the entire record in this case, CBG joins in the request for a hearing, should the Board not adhere to its April 13 determination.

1/ Memorandum and Order of February 24, 1984, at pp.7-8 2/ Memorandum and Order of April 13,1984, at 29

.)_/ .id. at 30

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Since so much of the reconi to date is Msed upon representations made by the counsel for Applicant who has been found to have made material false statements, and since the question of whether Applicant's key people (and key witnesses in both past and prospective hearings) participated in the misrepresentations remains unresolved, the integrity of the entire proceeding and the past and any future recon 1 obtained therein is potentially tainted.

'Ihe statements found by the Board to be asterially false deal with representations by Applicant that research reactors like UCIA's had never been required to provido protection against sabotage, and that the UCLA security plan was not designed to provide such protection. It is now agreed that UCIA's security I plan in the latter half of the 1970s included sabotage protection measures as required by 10 CFR 73 40 The basic protective -

equipment and hardward were not changed when the plan was redrafted in late 1979 and early 1980, and two response procedures relating to radiological sabotage were added. Thus, UCLA had been required to provide protection against cabotage, and both its 1970s and 1980s plans contained such measures. Furthermore, nsny persons within the University involved with the security plan throughout the last decade had to be aware of this fact.

I Unfortunately, despite two Boani Orders directing such 4/ See,eag.,Carlsonaffidavitof1/10/84, paragraph 9: also Carlson affidavit of 5/1/84, paragraph 39 **

l 5/ See Ashbaugh affidavit of 5/1/64, paragraphs 5 and 15 **

• • footnote by J.H. Bay l

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- response, to date none of said individuals, as will be discussed below, have fully indicated the extent to which they were aware of the long-standing representations in this proceeding on these matters, nor whether they approved of said representations or attempted to make changes in them. Additionally, questions remain as to what information counsel for Applicant possessed when the repeated representations were made on these matters over the last several years. 'Ihese satters are addressed below, t

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HISTORICAL SETTING In order to appreciate the context in which the (

sabotage protections at the UCIA facility were implemented and the context in which the current questions have arisen, it is helpful to set out a brief review of the history of sabotage protection at the facility.

1 In 1967, prior to the promulgation of security regulations for licensed facilities, the Atomic Energy Commission held that licensees must protect against sabotage, a matter to be dealt with at the operating licensing stage.

In 1970, the AEC's Appeal Board, ruling in the first i contested research reactor case, Trustees of Columbia University, held that University reactors must take measures to protect against sabotage. No subsequent adjudicatory decision by a Licensing Board.

Appeal Boani, court, or the Commission itself has disturbed the Columbia decision in this regard.

In 1973, regulations came into effect requiring all licensed facilities to provide protection against asbotage and theft. 10 CFR 73.40 read in pertinent part:

Each licensee shall provide physical protection against industrial sabotage and against theft of special nuclear material at fixed sites where licensed activities are conducted.

M Florida Power & Light Company (Turkey Point Nuclear Generating Station, Units 3 & 4) 3 AEC 173 7j 4 AEC 349 i

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t ht regulation has not been repealed in the decade since it first came into effect, although the term " industrial sabotage" i

has been replaced with the newer term " radiological sabotage."

In 1983, the UCLA Licensing Board, citing the above history, ruled that the provisions of 10 CFR 73.40 and the holdings of the Appeal Board in Columbia provide a long-standing requirement that research reactors provide protection against sabotage. ,

That is the law of this case.

Sabotage Protection Has Consistently Been Required at UCLA When the 1973 regulations were adopted by the AEC, UCLA was notified of the new regulations and told that they were required to submit a physical security plan to the Commission by January 7, 1974. The AEC letter to UCLA included the new regulations as well as a copy of Regulatory Guide 1.17, " Protection of Nuclear Power Plants Against Indusi. rial Sabotage. UCLA was informed, further, that the Regulatory Guide " states an acceptable Regulatory position" for complying with the new L

( regulations, and that nonpower reactors should use tho position in the Regulatory Guide to the extent practicable. I l

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l 8f LEP-83-25A (May 11,1983) 17 NRC 927, and LEP-83-67 (October 24, l

1983)18NRC f _9_/ Memorandum and Order of April 20, 1984, page 12 lof . Letter from Donald J. Skovholt, AEC Directorate of Licensing i to the UCLA Nuclear Energy Iaboratory, November 30, 1973, attached.

11] It is somewhat ironic that six years later the NRC Staff and UCLA should be asserting, in an attempt to dismiss CBG's contentions about inadequate security at the facility, that CBG was attemtping to apply power reactor standards to the UCIA case, when both Staff and Applicant apparently did so a few years previous.

_. lf Skovholt letter, supra l

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'. On January _14, 1974, UCLA aubmitted the required security plan. On July 15, 1974 Karl coller, AEC Assistant Director for Operating Reactors, informed UCLA by letter that (

its security plan was inadequate and gave the University 30 days to submit a revised plan. Goller included two enclosures: $

(1) " Interim Guidance - Organization and Content of Security Plans for low Power Research and Training Reactors," and (2) 4 an identification of deficiencies in the UCLA plan with respect to the interim guide, against which the plan was said to have ,

been evaluated by AEC.

We Interim Guidance, dated April 1974, states that it is applicable to low power research and training reactors, i and states its purpose as follows:

he purpose of the security plan developed according to this guidance is to protect the reactor against acts of sabotage. It is intended for use by the licensee to demonstrate compliance with 10 CFR 50 34(c) and 10 CPR 73.40 Conformance with this guide will not assure compliance with 10 CFR 73 50 and 10 CFR 73.60, if these parts are applicable to the licensee.

(page1, emphasis added)

The Interik Guidance goes on to discuss identification of " essential equipment,." and mandates security systems of locks and keys, ard communications, as well as administrative controls, arrangements with local law enforcenent, access control, and procedures such as responses to breaches of security, bomb threats, and acts of civil disorder.

lj lt is worth noting for the discussion which follows that there is no mention of armed guards, design insis throats, or entry searches, and it requires the p1An to " protect" against acts of sabotage in compliance with 10 CFR 73 40, precisely what UCLA later claimed its approved plan did not do and was not required to do. Note also that this guidance, like the Sample plan UCLA followed in producing its 1980 plan with its sabotage provisions, uas "interit."

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On August 21 (and revised August 29),1974,UCLA subr.itted the revised plan, designed to correct the deficiencies in the previous version (deficiencies related to sabotage protection).

he Commission still found the plan to be "not acceptable" and told i

UCLA that "you may be in violation of Title 10 Code of Federal Regulations, Part 73." %e problems centered around possession of an SNM inventory above the formula quantity specified in Part 73 UCLA eventually gained acceptance of its security plan , and then there proceeded a period of time in which the basic plan was anonded from time to time.

Se public docket is thus filled with correspondence to and from the Commission involvig Ivan Catton, Neill Ostrander, Charles Ashbaugh, Walter Wegst., James Hobson, Janos Miller, John i Barber, among others, largely transmitting anendmente to the security plan. %e plan continued to be based on the sabotage protection requirements of 10 CFR 73 40 Rose individuals were certainly aware of the character and purposes of the plan.

For example, Ivan Catton (then as now the Director of the Nuclear Energy Iab) submitted to the NBC on September 30, 1976, changes to the security plan, to replace the existing, approved Plan and Amendments thereto. Catton wrote:

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%e Draft Plan is believed to be in conformity with the requirements of 10 CFR Part 73.40 (emphasis added) lj See letter of January 8,1975, from George Lear, Chief of Operating Reactors Branch #3 to UCLA's Nuclear Energy Lab, attached, and Skovholt letter lj See letter of November 18, 1974, from George Lear to NEL, attached.

16/ See Lear letter of January 8, 1975 l_7/ Transmitted by letter of same date by Ivan Catton. NBC's Coller had requested on August 6, 1976, that UCLA's next proposed change to its security plan incorporate all previous changes so that the plan would be one document.

T On July ll, 1977, the NRC's Lear wrote to UCLA, responding to a question in a letter of Mny 19, 1977, fron Ivan Catton, NEL Director. Catton had inquired regartling the status of the UCLA I security plan with regarti to the operating license for the facility, I

and whether the Security Plan was conceived as having radiological safety aspects that interact with the license. Imar responded:

Vith regarti to radiological safety aspects of your Security Plan, implementation of the plan provides reasonable assurance that sabotage and theft of Special Nuclear Material (SNM) will not take place. Theft of SNM can have radiological implications far in excess of those activities for which your license was issued.

Se security plan, thus, is similar to other safety related components of your facility in that it provides reasonable assurance that occurences which have unacceptable consequences will be prevented.

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(emphasis added)

Note that the Plan is to provide reasonablo assurance that sabotage and theft will not take places that reasonable assurance of prevention of sabotage and thef t is required.

The Current Plan was Required and Intended to Protect Against Sabotage In July, 1979, new regulations woro promulgated affecting UCLA, in addition to the existing 73.40 The NRC's Janes KL11er wrote to UCLA about the new regulations, inviting the University to send a representative to a meeting the NRC Staff was convening in Glen Ellyn, Illinois on August 27, 1979 to explain the new safeguartis i

upgrade regulations and their impact on nonpower reactors. UCLA sent Neill Ostrander to that meeting. There Ostrander heard the 18 letter attached.

l lj See June 28, 1979 Memo from Miller to Burnett indicating that facilities with less than a formula quantity would have to comply with the new 73 47 (now 73 67) arri the existing 73.40. Memo attached.

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NRC Staff remind the audience that sabotage requirements had been required since 197 , that these reactors were required to protect againstsabotageunder10CFR7340and5034(e)N,thattobe '

exempt from 10 CFR 73.60 fuel must te continuously irradiatai at over100redhourperfuelelement , and that contiguity between sites was to be assumed if the two locations were less than a mile apart.

By letter dated August 9,1979, Frank G. Pagano, Chief of 4

the Reactor Safeguards Development Brsuch, wrote nonpower reactor licensees informing thei of the new regulation (then called 73.47).

regarding theft. He stated in the letters Applicable non-power reactor licensees [those with less than a formula quantity of SSNMJ must meet these require-ments for detection of theft in addition to previous regulatory requirements for protection against sabotage.

As a result of discussions with the non-power reactor licensees, we have draftad the attached Sample Plan as an aid to uniformity and completeness in the preparation of physical security plans.

(e:::phasis added) hus, just as occurrei right after 10 CFR 73 40 and 73 60 were adopted in 1973, the Commission Staff sent out to licensees 2j Transcript of " Impact of the Safeguards Upgrade Rule on Nonpower Reactor Licensees" held at Glen Ellyn, Illinois, August 27, 1979, at 143 2J/ TR 143. 10 CFR 50.34(c) requires all facilities to have a security plan addressing vital areas, vital equipment, and isolation zones.

We first two items are associated with the risk of sabotage.

2g TR 101-2

,2_f TR 23. R. Burnett directly responded to a question by Ostrander, and said that moving fuel to the campus police station was not " fair,"

i.e., the police station would probably not be considered non-contiguous.

t TR 74-5 2_4_/ letter attached.

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r guidance as to how to meet the new regulations. The Sample Plan (

unde clear at the outset that its Purpose included that of the previous plans as indicated in the 1974 Interim Guidance protection against sabotage. It states at the beginning: I Purpose his security plan describes the physical protection system and security organization which will provide protection against radiological sabotage and detect the theft of special nuclear material at the Sample Facility. It demonstrates compliance with 10 CFR 50 34(c),

l_0 CFR 73.40 and 10 CFR 73.47.

r he Sample Plan includes numerous provisions to achieve this purpose.

It, apparently like the Interim Guidance in 1974, was not subsequently altered by the Staff. It appears to have merely replaced the 1974 Interim Guidance subsequent to publication of the new additional specific theft protection regulations in 10 CFR 73 47.

UCIA received a copy of the Sample Plan, and used it to draft its revised security plan. UCIA submitted its proposed revised plan on Mrch 10 or 11, 1980, as part of its application for license renewal.

We Pre-1979 Plan, With Its Admitted Sabotago Protection Provisions, Was In Effect Until November 9,19_83_

2e NRC Staff did not formally approve UCIA's new plan until November 9, 1983.2,8_/ Until November of 1983, therefore, when UCLA's current license was amended to include the new plan, UCLA 2M " Sample Physical Security Plan for Non-Power Reactor Facilities Possessing Spe6ial Nuclear Mterial of Moderate Strategic Significance,"

Revision 1, June 14,1979, page 1, emphasis added.

2_k/ Declaration of Charles E. Ashtnugh, III, of Mrch 9,1984, para. 2 27 / Ashbaugh, ibid., indicates Mrch 11: the Amendment itself indicates Mrch 10, 1980 The fact that the Plan was late-filed first came to light when the letter of approval, citing the date of submission, was issued in Nov 1983 2_8_/ Approval was transmitted by letter of November 9,1983, from Cecil 0.

Thomas, Chief, Standan11:ation and Special Projects Branch to Walter Wegst.

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E operated under the old security plan under color of the timely renewal application provisions of 10 CFR 2.109. Thus, until Noventer 9, 1983. UCu's operative security plan, and the only one officially approved i

by the NRC Staff, was UCM's pre-1979 security plan. That plan,_all parties now agree, contained sabotage protection provisions, was required to under the regulations, and was reviewod by NRC Staff for compliance with sabotage protection requirements. This fact will become very important in the discussion below. (

We Sabotage Protection Requirement was Never Revoked l As indicated in the Pagano letter, the Sanple Plan, the Miller-Burnett Memo of 6/28/79, and other documents, the sabotage protection requirement of 10 CFR 73 40 was not withdrawn by the '

Commission when tho additional thef t protections of 10 CFR 73.47 (now 73.67) came into effect.

We regulatory situation at the tine that the UCLA relicensing proceeding began is summarized in an NRC Staff roport to the Commission. The report was prepared in part to answer Commission questions as to "what physical protect $ on is presently in place" at nonpower reactors. The document includes a section on both the history of nonpower reactor safeguards and the current safeguartis in forco, pertinent parts of which appear below:

29/ SeeespeciallyCarlsonaffidavitof1/10/84, para.9: also Norderhaug affidavit of 3/6/84, para. 6r anl Schuster affidavit of 3/6/84, para. 5: "Up until 1979 we inspected for sabotage protection."

In fact, the NRC Staff continued to inspect for sabotage protection after 1979, as will be shown in a separate pleading.

}0/ SECY 79-1870, dated December 19, 1979, relevant portions attached.

Note that this report comes af ter publication of the final new rules for theft precautions at nonpower reactors (July 24,1979) and after their effective date (November 21, 1979).

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_ Current NPR Safeguards Measures in Force Since late 1973 NPR licenseen have been required to sutait c a physical security plan es part of their application for a license to operate. NPR licensees who possessed less than a formula guantity of SSNM were subject to the provisions of 50 34(c) and 73 40 and those who possessed more than I a formula quantity of SSNM were' oubject to the provisions of 73 50 and 73 60, as applicable in addition to 50 34(c) x and 73 40 In 1974, the staff developed guidance in support pf the foregoing requirements to aid applicants and licensees

s. in the development of security plans to protect reactors against acts of sabotage.

(pago4, emphasis added)

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A little later in the same document Staff says:

All of the currently ap roved security plans for the reactors in question L UCIA is identified as one] were reviewed and analyzed with respect to preventing sabotage e and a few were evaluated by NRR to determine the adequacy of their physical protection system to protect against the theft or diversion of SNM. All NPRs have been inspected against their security plans for noncompliance during the period 1975-1979.

, (page4, emphasis added)

Rus, as of the end of,1979, af ter the imple:nentation of new regu3Ations, the Staff reported to the Cornission that since lato 1973 nonpower reactor licensees have had to cor. ply with 10 CFR 73 40 and had to have security plans "to protect ' reactors against acts of sabotage. " Furthermore, Staff inlicated that all plans had teen l i ovaluated "with respect to preventin6 sabotage" and that all l

j research reactors had been inopoeted for cor.pliance with their security plans.

j he Commission informed 'ths Congress to that effect in l

., March of 1981, for example, in its Annual Roport 4

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. Status of Safeguartis at Non-Power Reactors All licensed non-power reactors have operative security plans as required by 10 CFR 73 40 (" Physical Protection:

Ceneral Requirements at Fixed Sites") for protection against sabotage. In addition, licensees possessing c less than formula quantities of SSNM have submitted security plans in accordance with the requirements of 10 CFR 73.67....}l/ 9 h us, one year after UCLA applied for license renewal and this proceeding began, the Safeguards Chapter of the Conaission's Annual Report to the Congress, written by the staff of the Safeguards C Branch and formally approved by the Commission, stated clearly that I

all research reactors were required under 10 CFR 73.40 to protect against sabotage, all had such abotage protection plans. Rose licensees with less than a formula quantity of SSNM had to meet

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10 CFR 73 67 theft protection measures in addition o to 10 CFR 73.40 sabotage protection requirements. We shall shortly nee, however. I what the Board was being told during the same time.

l 3_1_/ March 17, 1981, "1980 Annual Report" of the U.S. Nuclear Regulatory Commission, pp. 120-121, emphasis added. We Annual Report for 1981 similarly states the requirement to comply with the t general physietl security requirements of 10 CFR 73 40(a), saying '

that all licensees of non-power reactors have implemented those requirements. 30 Annual Report for 1982 identifies no charge in i regulations in effect for non-power reactors from the previous two years, discussing only the new proposed amendments to 73.67 which have to this date still not been approved.

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1 Sumatr.ry of Status e.s of 1930j When the Relicensing Proceeding Began

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- What, then, was the ~ situation in early 1980 when the f . . , .

1UCLA ree.ctor license expired and renewal procahdings began? C J

, ' i-- P Research reactors had been required to have sabotago 7

protection since at least the 1970 Columbia ' University decisio ard thE'I.973 pi;omulgation of 10 CFR 73 60 Botb of UCIA's security pians- its then operational on ard its newly proposed revised

'[pla - contained as jheir performance objectives protection

< ,f agair4t' sabotage, and provisions therefor. Both. ware written in j response to Staff direction that their facilities must protect against sabotago under 10 CFR 73 40.36j BotVware writtmi using interim guides

]7 e prepared by Staff requiring such asbotage. protection. Staff had told e UCLA throughout that it must protect against adbotage and obey 73.

and UCLA said it intended to comply with 73 40k 'Ihe Staff routinely 40 inspected UCLA for sabotage protection. } Staff told others within Staff and tohl UCLA that the new 7k67 theft regulations must be complied A .,' with in additio_n to the existing 73 40 sabotage protection requirements.

t The Staff, after the raw rules became effective, told the Commission that  ;

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l' all nonpower re. actors were required to have sabotage protection plans

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under 10 CFR 73 40 ani had been so inspected,42/ and the Commission so

/ 4 j informedtheCongress.3) 32 4 AEC 349

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_/38FR30537: Skovholt letter, 11/30/73 Carlsonaffidavit,1/10/84, aragraph 9: TranscriptofGlenEllynmeeting,8/27/79,at143 Skovholt letter, / 0/73; April 1974 Interim Guidance; Icar letter 7/11/77 l 3 Boani Order of 2/ 84 at 6 SamplePlanof6/14/79;Ashtuughdeclaration '

l ,f of /9/84, paragraph 2 Skovholt letter of 11/30/73: Paganolottorof8/9/79 i / 36 l~ 3 April 1974 Interin Guides , 14/79' Sample Plant Ashblugh dec1. of 3/9/84 i Skovholt letter Lear,7/11  : Carlson 1/10/84 at 93 Glen Ellyn Transcript at 143: Pagano letter of 8/9/79 Jg e.g. Catton letter 9/30/76 l

footnotes continued next page I

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What Did UCLA and Staff Tell the Board?

We have seen above that from 1973 onwards, the Staff

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had repeatedly told UCLA it had to protect against sabotage under

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10 CFR 73 40 UCLA wrote two plans that did so: Staff inspected  ;

UCLA for sabotage protection Staff told the Commission that all research reactors had sabotage protection plans and were complying with 73 40 sabotage requirementst and the Comaission likewise told the Congress. What, however, did UCLA and Staff tell the Board?

l In her first pleading in the case, Ph. Woodhead argued that the security contention should be dismissed because, che claimed, the only safeguards regulation applicahlo to UCLA was 10 CFR 73.67.

(footnotes continued fzca preceding page) 4_0] See, Inspection Report No. IE-V-264 (10/30-31/78), and No. IE-V-340e.g.,(9/24-25/79)

Miller to Burnett Memorandum of June 28, 1979: Pagano letter 41]

of 8 /9/79:Sample Plan of 6/14/79 at page 1 t 4_2/ SECY 79-187C, dated December 19, 1979 4_)/See,e.'g., March 21, 1981 Annual Report of the NRC l

48 December 1,1980 "NRC Staff Position on Unstipulated Contentions" "Ihis pleading contained the first referenco to any regulation regarding the contention, which as drafted merely alleged that sabotaga and theft precautions were inadequate. Subsequent argument as to whether 73 67 or 73.60 applied for theft protection to this facility (related to quantity of SSNM on site) led the Board to insert - on its own motion-l those two qualifying regulations into the contention passage dealing i

with protection of SSNM against thaft and diversion, which now reads

" protection against theft and diversion of the special nuclear materials 4 it possesses pursuant to 10 CFR 73 60 and 73.67..."

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Mr. Cormier, on behalf of UCLA, expressed unqualified support for the Staff argument:

Staff has gone through and indicated where thsy [ CBG J l are unaware of what regulations in the cecurity area apply to Applicant's facility.

I think we certainly concur in efery comment that Staff g hasmadeandtheresponsethattheStaffhasmadetothis.g Wrcughout the rest of the February 1981 prehearing conference, Mr. Cormier and Counsel for Staff ar6uel that 10 CFR 73 67 only requires detection of theft, and that no requiremont for sabota6e protection exists for research reactors hey made this argument one sonth before the Commission told the Congress tlat all nonpower reactor licensees were in fact fulfilling the sabotage protection requirements of10CFR7340(a). Also at that prehearing conference, Staff proposed a stipulated schedule calling for summary disposition at the close of discovary, to which all p1rties agroal.

The Board admitted the security cont.ention and accepted the stipulated discovery and summary disposition schedule. %ree weeks later, and one week before the first set of interrogatories were to be submitted acconting to the stipulated schedule, Staff moved for summary disposition, of only one contention, security. Sol '

20 Board found the motion to violate the stipulated schalule, and 45/ rebruary 1981 prehearing conference, TR 376-77 46/ See TR 376-398 47 / March 17, 1981 Annual Report, pp. 120-21 48/ Board Order of thrch 20, 1981 49/ the interro6atories on security were nonetheless submitted, but remain unanswered to this date.

j April 13,1981 NRC Staff Motion for Summary Disposition

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ruled it untimely. Had the untimely motion succeeded, CIG and the Board would have been prevented from seeing the plan and inspection reports.

he Staff motion for summary disposition stated, inter

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alia, "Interrenor's assertion that the Licensee's socurity plan must protect against sabotage is legally incorrect and should be dismissed P 52/ We Motion went on repeatedly to say that the only

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portion of the Part 73 safeguards regulations applicable to the UCLA research reactor facility is 10 CFR 73 67, specificany leaving out {

73.404 An Affidavit from Donald Carlson caid that there were no explicit regulations for protection of nenpower reactors against sabotage. (Carlson had written the Sample Plan on which the UCIA '

proposed plan was based, which included as its purpose "...' protection against radiological sabotage and...' complianco with 10 CFR 50 34(9),

10 CFR 73.40, and 10 CFR 73.47  !).

UCIA repeatedly told the Board that it totally supported the Staff motion, ani that no hearing of the security contention should be permitted, nor any discovery of the security plan or related documents.' On May 28, 1981, in a pleading signed by attorney l Glenn R. Woods, UCIA said:

Applicant requests that the Board defer consideration of any discovery related to the physical security of Applicant's facility until the NRC Staff Motion for Summary Disposition of the physical security contention is decided by the Board.

Applicant fully supports the Staff motion and concurs with the Staff analysis that this contention can be disposed of without requiring further evidentiary proceedings. $_/

21/ Board Orders of April 30, 1981 and June 9, 1981 52/StaffMotionat11 53/ Sample Plan of 6/14/79 at page 1

$/ Applicant's Motion for a Protective Onier, 5/28/81, emphasis added

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. 'Ibe UCIA motion thus requested that no security discovery be had '

prior to the resolution of the summary disposition motion, and that the su==avy disposition motion be granted so that there would be no discovery at all.

On March 15, 1982, Mr. Cormier, on behalf of Reidhaar, Woods, and Helwick, again argued that the summary disposition notion should be resolved prior to any discovery commencing on security, and once again endorsed the Staff motio  :

Respecting security matters, the NRC Staff has argued in its motion that much of Intervenor's security contention

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is based on a mistaken interpretation of the physical security ro6ulations-that apply to Applicant's research reactor facility. Applicant agrees with the Staff's argumen_t.

A ruling on the summary disposition motion at this time will resolve the question of the material facts, if any, that are in dispute. 2 (emphasis added)

Parties filed proposed protective orders under which the I

security information was to be released. Before the disputes about the contonts and applicability of the protective orders could be resolved by the Boazd, and thus discovery actually commence, Staff and UCIA renewed their requests that discovery be deferred until the " threshold" issues in the summary disposition motion were resolved. 1 At a prehearing conference June 29-30, 1982, the " threshold" issues to be resolved were defined as (1) whether, as UCLA and Staff claimed, UCIA was exempt from 73.60 and thus only required to meet 73 67 theft provisions, and (2) whether, as UCIA and Staff claimed, no sabotage

protection was required for research reactors like UCIA's.

55 / " Current Status Report on Discovery Proceedings", thrch 15, 1982: at los It should be noted that CBG objected, of course, to having to respond to a sumnary disposition motion when it had not been provided access to the fundamental basis of the contested issue-- the security plan itself.

56 / University's Response to CBG's Motion for Deferral, 5/10/82, at 11-12:

Staff Motion of 5/13/82 5Z_/ TR 773, 779, for example.

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, CBG was directed to address these " threshold" issues contained in the motion for summary disposition without discovery of sensitive information; access to the security plan and related information wouM I

only occur af ter, and be contingent upon, survival of that stage of summary disposition. t Counsel for UCIA once again gave unqualified cupport for the Staff motion, particularly those portions on sabotage and 73.60 to which CBG was now directed to respond 0 !: I MR. CORMIER: I don't think we need to respond to the motion. We ought to be onreconi as supporting the motion. I ht should be clear already. If we can do that in the record here, as opposed to filing a statement in support, that would be the only thing we would need to do. I think the Applicant ought to be on record on how it comes out on

_the issues, and that is clearly one of supporting the motion. but I don't think we need to add additional information. t he reconi was indeed clears ever since the proceeding had begun, UCLA had fully and totally provided independent support for the assertions that CBG was improperly attempting to impose sabotage protection provisions on the UCLA security plan when no sabotage precautions were required, and furthermore, that the only safeguani regulation UCLA need comply with was 10 CFR 73 67.

he Boani rejected the positions of UCLA and Staff, ruling that 10 CFR 73.40(a) clearly applied in addition to 10 CFR 73 67, and that it and the Columbia decision requirexi University reactors to take some monsures to protect against nabotade. What thoso specific measures were in the UCLA case was a matter for the parties to address at hearing.  ! '

% Staff petitioned for reconsideration on August 15, 1983, 58 / TR 774, emphasis added 59 / Board Onler of May 11,1983, LEP-83-25A 60/ g., at 25 t

_20 supported in full by UCM on August 25, 1983. w e Staff, in its Petition, quoted the Board's Orders Where the Commission has set down detailed requirements, (

we conclude that these are intended to satisfy the general requirements of 873.40 Where no detailed roquirements have been set out, we conclude that some measures nonetheless must be taken to satisfy the 973.40(a) general requirements. [

In the instant case, assuming that there is (or will be) less than a formula quantity of SNM on hand at the NEL, this means that UCLA must institute some means of_providing physical protection against sabotage. (

(emphasis added by Staff) he Staff petition " submits that this interpretation is incorrect." (

Staff continued, "he Board erra in believing that a general but unspecified requirement for protection against sabotage exists in S73.40(a) which would provide ad_ hoc regulating authority to Staff I

and/or Licensing Boazds." 62/ mis despite the fact that the Staff l

had been inspecting and requiring sabotage protection at UCLA and '

other research reactors for years on the lasis of the 73 40 general, unspecifiel language, and many within the NBC Staff and UCLA knew it, i

as shall be shown below.

"he Petition, fully supported by UCM, went on to say 1 l " sabotage protection was and is not required for non-power reactors."

The Petition said further that "nonpower reactors have never been subjectto573.40(a)." (This despite the affidavit by Carlson of 10 January 1964, paragraph 9, which inilcates that research reactors were required to comply with 73 40 at least as early as 1974; and the fact that, as the Board says in its May 11, 1983 order, the provisions l of E73.40(a) "have remained unchan6ed over a period of alrost ten years."

, 61 / Petition for reconsideration, page 9 l 62/ Petition, page 10 l Petition, page 11, emphasis added

! emphasis added Boan! Order, at 25 l ,

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. UCIA filed its response in support rf the Staff Petition for Reconsideration on August 25, 1983. 66 / As stated therein, University fully supports the_ Staff petition for reconsider- .

ation for the reasons discussed in Staff's petition to which trief mention is made below.

hus, UCIA once again provided total endorsement of the Staff statements from the independent perspective and with the independent information of the University.

We University pleading, signed by Mr. Cormier on behalf of Messrs. Reidhaar ami Woods and Ms. Helvick, also states, "We Board's -

f Ruling Concerning the Applicability of Sec. 73A0 to the UCLA Facility l is Incorrect." 68/ UCLA goes on to dispute the followings In its Memorandum and Onler the Board concluded that Sec. 73A0 imposes a generalized requirement that the UCLA facility be protected against sabotage. %e Board ruled further that the specific means of providing physical protection against sabotage at the UCIA facility was properly a subject far the parties to address in this adjudicatory proceeding.

And then, in the passage that has received the most attention recently because it most explicitly states what the University had been saying consistently since the proceeding be6ans i

l University wishes to note that its security plan, which is not designed to provide protection against sabotage, has been approved by the Commission's safeguards branch; and that 1he low-power university research reactor. licensees have never been required to adopt security plans designed to l protect against sabotage. Surely the Commission's consistent i

practice in interr eting and applying its own safeguards res-ulations to licensees such as University is entitled to con-siderable weight in this proceeding.

66'/ University's Response in Support of NRC Staff Petition for ~

Reconsideration of the Licensing Board's Momorandum and Onler Ruling on Staff's Motion for Summary Disposition 67 / page 1, emphasis added 68 / page 2 69 / pp. 2-3r; emphasis added b

.,,--..,,r.y -,,,.,,,-,----,----,,v--y- e .--m -.,_ -,-c

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. his August 1983 statement by UCIA is extraordinarily explicit, I tying together the; representations of three years into one para- t graph. The Counsel for the Regents state, in the context of an attack on the Boazd's holding that 73 40 requires some asasure of sabotage protection for research reactors like UCLA's, thats (1) low-power university research reactors have never been required to adopt security plans designed to protect against sabotager (2)thathasbeentheconsistentCoaaissionpractices and, as " proof" that (1) an1 (2) are correct, UCLA informs the Board and CBC-- neither of which had seen the plan- thats (3) the UCLA plan is not designed to provide sabotage protection yet

! (4) nonetheless has been approved by the NRC Staff.

%ese are factual assertions designed to support a legal argument. Unfortunately, when the Board finally obtained the unex-purgated security plan and inspection reports, serious question was raised as to whether these several statements were not, in fact, l

materially false.

I HOW THE BOARD WAS FINALLY MADE AWARE OF THE CONTENTS OF l

l THE SECURITY PIAN AND THE INSFECTION REPORTS We have seen above how both UCIA's operational (approved)

I security plan and its proposed plan (not approved until Nov 1983) contained sabotage provisions, had been written at direction of Staff to comply with 73.40, using guidanco prepared by Staff indicating requirement of providing protection against sabotage, and how UCIA was routinely inspected by the NRC for sabotage compliance. We have also seen above how the Board was told just the opposites that,there had

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. never been a requirement to protect a6ainst sabotage, 73.40 never applied to low power research reactors, and UCLA's plan was not designed to provide sabotage protection ani yet had been officially approved by the NRC Staff. As the Board described tho situation as of February, 1984:

Wroughout these proceedings until February 15,196+e we had been led to believe by Counsel that, first, Staff saw no requirement in the reguhtions that UCLA provide such protection and imposed no such requirement, and second, that UCM's security plan indeed provided no such '

protection.

What, then, happened on February 15, 1984, that so mirkedly affected the course of this proceeding? W e Board was finally provided the unexpurgated security plan and inspection reports and, it writes, was " astounded" by what it saw. How the unexpurgated plan and reports reached the Board, over three years into the proceeding, is itself of some note.

%e January 25,198'+ Conference Call W e Board arranged for a conference call with the parties to be held on January 25, 1984, to make arrangements for final I

discovery of the security plan, inspectbn reports, and related information. Counsel for UCM, during that conference call, j attempted to roargue once again the sabotage requirement matter, l

assetting it was grave error and that UCLA might seek interlocutory i review. He was told that the sabotage rulings were the hw of the l case and discovery would proceed. He argued that discovery of the 70/ Memorandun and Order of February 24,19th, at 3 emphasis added 71/ id., at 6, 7 72/ Board Order of December 23,1983 at 12: errata Order of 1/10/84 i

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security plan could not occur if CBG failed to qualify an expert witness, and asserted he might attespt to certify any ruling qualifying any CBG security witness in oder to prevent " unnecessary" disclosure I of the plan. Mr. Cormier was reminded that Intervenors could build their cases defensively and thus, whether any expert witnesses were approved or not, the security plan and inspection reports must be turned over to CBG's attorneys.

t Mr. Coraler then indicated that he might expurgate portions of the security plan and inspection reports if required to disclose them, which produced considerable debate. Mr. Hirsch insisted that the unexpurgated versions be provided, at least to the Board.

And the Board ordered that this be done.

What the Board Saw When the Security Plan and Inspection Reports Vere Finally Revealed What the Board found, when it was finally provided the unexpurgated materials, was (1) that the plan did contain, both as its design objective and in specific provisions to carry out that objective, sabotage protection measurest (2) that what the Staff had approved and ordered UCIA to comply with was a plan with sabotage provisions; and (3) that the security inspection reports indicated UCIA had been routinely inspected for sabotage pzutection by the Staff.

j Monorandum and Order of January 27, 1984, at 2-3

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he Board's astonishment at reading the documents was due to the consistent representations made over a period of years of directly the opposite of what the actual documents contained. c Describing the many years of assurances of no sabotage protection, the Board says: (

It was thus clear to us, insed on the representations of Counsel, that UCLA's physical security plan was not designed to provide protection against sabotage and that Staff did not require that such protection be provided.

However, the security plan and security inspection reports C furnished by UCLA indicate that the opposite is true.

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What the Board Did After the Facts Wero Finally Revealed he Board took a number of actions upon becoming aware of the apparent " substantial misrepresentations" on the sabotage matter. We Board first suspended the security proceeding until the matter of the potential misrepresentations had been resolved.751  ;

he Board then directed NRC Staff Counsel and four named Counsel for the University (Christine Helwick, Glenn R. Woods William H. Cormier, and Donald L. Reidhaar) over whose names the various representations '

had been made, to demonstrate why action should not be taken against them pursuant to 10 CFR 2 71') for violations of the Model Rules of Professional Conluct. 76 / In addition, the Boani directed "others l within their respective organizations," i.e. within the t'niversity and

( the NRC Staff, to inform the Board to what extent the written representations 74 / Board Onler of February 24,1984, at 6, emphasis added 15] Message read to parties by Board's law clerk on February 17, 1984 I repeated in Memorandum and Order of February 24, at 1. It stould be l noted that suspension of the prcceedings penalized only CBG, which had l been trying with great effort to get the security proceeding resolved before the summer Olympics.

76/ 2/24/84 Order at 7 e

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. of these attorneys had been reviewed and approved by them. The Boarti explicitly reminded the parties that 10 CFR 50.100 provides in part that the UCIA license stood in jeopardy of teing . (

... revoked. suspended, or modified, in whole or in part, for anY material false statement in the application for the license or in the supplemental or other statement of (

fact required of the applicant....

Under threat of that sanction, the Regents of the University of California and the NRC Staff were directed to iniicate by Mirch 9,1984 78 /

the extent to which they were aware of the representation _s being made by counsel, whe_ther they approved of these representations, and whether they sought to make any cor-rections to them.

We shall explore below the extent to which UCLA complied with the Boarti's Order for responses by the identified individuals to the specific questions addressed in the Order arri, in those areas where there was response, 'he extent to which those responses resolve the matter of potential isrepresentations.

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UCLA's March 9 Response to the Board's order: Incomplete. Unsatisfactory 1he University responded to the Board's Onier on March 9.

Two of the four named attorneys failed to respond at all, none of the Regents nor any other individuals within the University provided I

any response, with the exception of Mr. Ashhaugh, whose affidavit did not address the matters specifically sought by the Boards whether he was aware of the long-standing representations made and

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whether he approved or attempted to make chan6es in them. As we shall see, the omissions in the University response-- the missing affidavits j and the missing information from the affidavits that were providod--

are very serious.

The Board, in its Memorandum and Onler of April 13,1984, found (

Mr. Cormier's explanation uncatisfactory ard ruled that he had indeed I

made material false statements and should be reprimanded. Before issuing the reprimand, it gave Mr. Cormier an additional chance to explain himself and, further,~ noting the omissions referred to above, gave the University a second chance to provide the missing information on the knowledge and actions of other within the University. (

It withheld ruling on the issue of whether license revocation, suspension, or nodification should result until the University had a second chance to provide the omitted information. We shall soo later whether the second response is any more satisfactory than the first.

I The Omissions: A. The Attornnys 1hrou6hout the proceeding, and during the long pender.cy of the repeated representations called into question by the Board's

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~28-g Order of February 24, 1984, representations have been made on behalf of the Regents of the University of California by a team of four attorneys appearing on behalf of the Applicant. Virtually every (

pleading filed on behalf of the Regents in the last four years has had all four names on the pleading. '1 hose attorneys for the Applicant I are: Donald L. Reidhaar, Glenn R. Woods, Christine Helwick, and William H. Cormier. All four were explicitly named in the Board's 2/24/84 Order, accused of violations of the Model Rules of Professional Conduct, and offered an opportunity to explain why action should not be taken against thom pursuant to 10 CPR 2 713.79 /

'nto of the four named attorneys-- Glenn R. Woods and Christine Helvick-- made no response whatsoever, offered no explanation i for their conduct, and made no showing why the action threatened by the Board against them should not be taken. The representations were I rade in their name, and in several cases, over their signatures.

They were present at prehearing conferences where the representations were mado orall and they are on the service list for all parties for all the pleadings and Orders that have been served on this issue over the last many years. They have previously been accused of lack of candor by this very Board 2 /, and of failing to respond to Board Orders . In the past, the sanctions threatened against them for riernpresentation and failure to comply with Board Orders (based in 79 / 2/24/84 order at 7 30_/ See, for example, a 5/28/81 hation signed by Woods, in which t Applicant *' fully supports" the Staff's notion for summary dinposition, which argued that 10 CFR 73.67 was the only applicable regulation, and that sabotage protection was not required.

fl/ Both were present at the February 1961 conference, for example, at l which University and Staff argued that thoro was no requirement for UCLA to protect against nabota e.

l 82 / See Orders of 12 22 60, 81,5/29/81 l SQ/ See Orders of 310 81, 1 1

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, part on a letter from Mr. Woods, refusing to respond to an Order, which the Board termed " greatly insulting frca a great University to this Board"  !) were dropped based only on the conclusion of inexperience with NRC practice by these attorneys in the early days of the procealing. Surely the excuse of inexperience can not be used a second time, years later.

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Helwick and Woods are Responsible for Supervision of Mr. Cormier's Ploeding_s Mr. Reidhaar's affidavit indicates that Woods and Helwick were directly responsible for supervising the actions of Mr. Cormier.  !

Thus, in addition to their own actions or inactions, they are responsible for Mr. Cormier's activities.

Mr. Reidhaar indicates in his affidavit that he had reviewed the security plan. We do not have any denial from Woods or Helwick that they did so as well. They certainly cannot claim ignorance of the long-standing claims that no sabotage protection was required--

those claims were made at prehearing conferences at which they were procent,  !

and in pleadings and Board Orders served on them.

'Iheir failure to respond in their own defense speaks volumes:

the Board gave them an opportunity to demonstrate why action should not be taken against them pursuant to 10 CFR 2.713 they have not done so.

84/ Board Order of 5/29/81, at 2

$ Affidavit of Donald L. Reidhaar of Mtrch 8,1964, paragraph 1 l 86 / Reidhaar affidavit paragraph 4 In addition, the University, in its January 25, 1984 pleading, identifies Woods and Helwick as authorized to have access to protected security information.

87 / Includie the February 1981 and June 1982 prehearing conferences.

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Omissions: B. We Regents h e Board, warning that material falso statements could result in license revocation or similar action, wanted to know who c besides the four named attorneys was aware of the representations madet the Regents of the University were specifically directed I to responds he Regents of the University of California and the NRC Staff are to inlicate, tr/ March 9,1984, the extent t

to which they were aware of the representations being made by counsel, whether they approved of these represent-ations, and whether they sought to make any corrections to them. I NONE OF THE REGENTS RESPONDED.

W e Regents hold the license for which renewal is requestod I

and of which revocation or suspension his been threatened. The statements in question made over the last four years were made legally on behalf of the Regents. Did they approve said representations, did they try to change them, were they even aware of them? What the Boarti wanted to know is not a trivial matter. For years an extra-ordinary public position has been taken on behalf of the Regents, that their reactor, situated a few hundred yards from a major site of the upcoming Olympic Games, was not required to have any sabotage protection.

It was wrong-- and dangerous. Did the Regents know? Was this indeed the position of the Regents? Did the Regente exercize the level of control and supervision necessary to assure that representations made on their behalf to a federal agency about important public henith and safety matters were not materially false? If Mr. Cormier has been making the representations on his own, without approval and checking by others, then what assurance is there that any of the representations made are correct? If othern approved and reviewed, 88 / Board Order of February 24, 1984, at 8

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. then who are they and why didn't they notify the Board that the plan ani inspection reports, and all the other history and records identified earlier, showed 73.40 sabotage protection was included ani required?

Is it possible that Mr. Cormier never even showed the (

Board Order to the Regents, that they still don't know they were directed to respond, nor that they were accused of material falsehoods and threatenai with license revocation? None of these questions are (

answered, because the Board's directive that the Regents respond to the identified questions was disobeyed.

CBG recognizes that not every member of the Regents need provide an affidavit- although that might be useful, given the t

fact that they have legal responsibility and may not even be aware of the case nor the accusations against them and their counsel. i But at least those subcommittee members with direct responsibility for the reactor, or the Chairman of the Regents, should have provided the information sought. All of the Regents should, at (

minimum, have been notified of the charges and been provided the Order. The question becomes: is Mr. Cormier (and his colleagues if they inteed provide the supervision Reidhaar claias) genuinely representing the Regents, or do the Regents know nothing about

[ this and is Mr. Cormier representing only himself?

In any case, the Regents have failed to comply with the Boarti Ordert no response whatsoever was forthcoming they hsve defaulted and license revocation or similar action is called for.

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. Omissions: C. _0_thers Within the University Organization he failure of others within the University organization to indicate the extent of their awareness and approval or disapproval 7 of the long-standing representations is an important omission.

h ose were people who appear to have had in their possession the (

information that would have contradicted the representations that were being made to the Board. Rey had individually written the plan, reviewed it, approved it, transmitted it and the amendments to I it to the Commission, received communications from the Staff on these

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sabotage anl other security matters, been present at inspections when sabotage precautions were checked, and received, reviewed, and responded to inspection reports. Some of theso people were sitting t

next to Mr. Cormier at prehearing conferences when he made the remarks in question, or when he clains to have reviewed the plan. t Rose are the University " staff" upon whom Mr. Cormier had to rely for any factual representations made. Rus, it is important to know directly whether they approved of his representations either before i or af ter he mado them, and whether they suggestod ho mke changes in them. These are crucial questions- but, alas, like the questions to Woods and Helwick, and to the Regents, the directive by the Boarti to provide answers to them is ignored.

An examination of what is known about Nho know what follows, demonstrating the seriousness of the failure to comply with the Board Order and disclose the matters requested.

A useful place to begin examinin6 who should have responded to the Boani artier but didn't is in Mr. Cormier's January 25, 1984, list of University staff authorized by the University to have access to protected informstion on security (attached).

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UNIVERSITY'S PROPOSED LIST OF AUTil0RIZED PERSONS (

1. Persons Anticipated to be Primarily Responsible for the Preparation of d UCLA's Ca_se.

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NEL Staff: Dr. Ivan Catton, Director; Mr. Neill C. Ostrander, Laboratory Manager; Mr. Charles E. Ashbaugh, Senior Reactor Operator and Security Officer; Mr. Tony Zane, Reactor Supervisor; fis. Jule Bishop, Administra-tive Assistant.

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Other Staff: Dr. Walter F. Wegst, Director, Office of Research and l Occupational Safety.

t Lead Attorney: Mr. William H. Cormier.

Other Counsel: fir. Glenn R. Woods; Ms. Christine llelwick.

3 Clerical Support Staff: Ms. Dolores Armstrong; Ms. Darlene Otten; Ms. Toni Stewart. I

2. Persons Who May Require Access by Virtue of Their Managerial or Supervisorial l Responsibilities or to Perform Duties in Connection with UCLA's Ongoing .

Security Responsibilities. l l

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, 'Dr. Charles E. Young, UCLA Chancellor; Mr. James W. Ilobson, Administrative Vice Chancellor; Mr. Allen Solomon, Assistant Vice Chancellor, facilities; i

j UCLA Facilities personnel (engineers, technicians, craf tsmen) responsible t

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Barber, Assistant Vice Chancellor, Comunity Safety; Mr. Patrick M.

Connolly, Director, UCLA Police Services; UCLA Police Officers and C dispatchers; Professor George L. Turin, Dean, School of Engineering and Applied Science; Professor A. R. Frank Wazzan, Associate Dean, O e School of Engineering and Applied Science, c

3. University's Designated Facility: Nuclear Energy Laboratory, Boelter Hall, UCLA. g 4 University's Designated Office: 2241 Murphy Hall, UCLA C

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- As indicated by the University itself in January, at least twenty people within the University organization waro' authorized by the University to have access to security information t related to the reactor. None of these answered the Board's questions as to the extent they were aware of the sabotage representations I that had been made over the years and whether they approved or attempted to alter said representations. Ist us examine some of the key individuals.

r NEL STAFF Dr. Ivan Catton, Director _

Dr. Catton has been Director of the Nuclear Energy Lab i

since the mid-1970s, and supervises all staff at NEL, including Passrs.

Ostranier, Ashbaugh, ani Zane. It was his letter in 1977 to the NRC inquiring about radiological sabotage aspects of the security plan that brought the response from the NRC's Lear that implementation of ths security plan is to provide " reasonable assurance" that sabotage and theft "will not take place," that such incidents will be" prevented."

In his letter to the NRC transmitting a new proposed security plan, he inlicated his belief that it complied with 10 CFR 73.40 Much of the security correspondence between the Commission and UClA for the last decade was sent to or from Dr. Catton. Dr. Catton is listed in many of the security inspection reports for which cabotage l

protection was inspected as one of the NEL staff contacted during the inspections, and/or attending the exit interview in which the inspection conclusions woro discussed. He was responsible for responding to i

89 / letter of Lear to UCLA, July 11, 1977 90 / letter of Catton to NRC, September 30, 1976 21_/ See, e.g., inspections of 9/21-22/77,30/30-31/78,9/24-25/79 t

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~34-Notices of Violation on security matters, and thus for reviewing

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inspection reports when received. See, for example, his letter of January 18, 1979, to L.R. Nortlerhaug, Chief of Safeguards Branch, Region V, re6artling security deviations noted in the course of a recent security inspection. Note also that when the NBC wrote to l

UCLA about the new security regulations, it was Dr. Catton who responded. When the proposed plan was amended, as in the caso of the previous plans, it was often in Dr. Catton's nar.e that the amendments were transmitted. 'lhere was no response whatsoever to the Board's Ortier from Dr. Catton, Director of the Nuclear Energy 1 Iab for the last decade, the top man in charge at NEL.

Neill Ostrander, Reactor Manager I Mr. Ostrander has been employed at the UCLA reactor facility sinco 1974, accortling to the statement of quslifications enclosed in the University's January 25, 1984, letter proposing him as an expert witness on the security of the UCIA reactor. He asserts in the state-ment of qualifications that, "In connection with ny responsibilities as Ihnager of the NEL I review the physical security plan ani approve the changes made in the plan and its inplementation." He thus obviously was aware of the contents of the plan written in 1974 in response to the new sabotage regulation 73.40, and the continued sabotage protection provisions throughout the decade. By his own admission he reviewed and approved both plans and thus knew of their contents. He was present 92/ See letter, Catton to Reid, August 29, 1979

_03/ See letters of 20 February 1981,1 June 1981, and 21 April 1981 to the NRC from Dr. Catton, transmitting anondnents to the physical security plan.

at prehearing conferences where these matters were discussed.

He was present at the August 1979 Glen Ellyn conference in which those present were reminded that they had always been required to protect against sabotage, and always had to met 73.40 He is listed as one of the key persons contacted at NEL during most of the security }

inspections; his administrative duties are such as to make it likely he received the inspection reports and was required to review them and help draft responses thereto. His name appears on much of the I correspondence between UCLA and Staff on security matters during the 1'

last decado. (Ostrander's declaration submitted with Mr. Cormier's May 1,1984 response will be discussed below. )

Charles Ashbaugh._ Reactor Security Officer Mr. Ashbaugh has been the Security Officer at the reactor since 1974, and associated with the facility actively for a number of years previous. His responsibilities includes " drafting and coordination of the security plan and its amerdments, interfacir4 ,

with the proper authorities on security matters, responsibility for checking the functions of all the security devices, and coordinating the control of personnel access to NEL." He in thus obviously aware of the contents of the security plan (s) and inspection reports and has been for ten years. Mr. Ashtaugh draf ted the proposed plan with reliance on the Sample Plan and the draft Reg Guide. By his own admission he included new response procedures directed toward radio-logical sabotage. Indeed in August 1979, according to Mr. Ashtaugh, an NRC inspector, inquiring about UCLA's progress in complyire with

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the " Upgrade Rule", told him that taking a certain security measuro would improve the sabotage protection at the facility. Re suggested measure was actually implemented in November 1980 B us, it is apparent (

that Mr. Ashbaugh knew of the sabotage protections in the plan and thus it was important to get his direct comment on the question of k what he told Mr. Cormier, and what he knew of Mr. Cormier's represent-ations.

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Tony Zane. Reactor Supervisor Mr. Zane has been at the facility for much longer than a decade. D e University's January 25, 1984, letter identifies him as one of the NEL Staff authorized to have access to protected security i information, arxi the inspection reports indicate he was present at several of the cabotage incpections; thus he can be expected to be familiar with the security plan (s) in existence during much cf the timo he has been at the facility.

t OTHER UCLA STAFF Dr. Walter Worst,_ Director of the Office of Research and_ Occupational

_ Safety he University also indicates that Dr. Vegst is authorized to have access to protected security information and is put forwarti as an expert on security at the reactor. Inspection reports, and responses thereto, go through his offico. The proposed security plan in question was transmitted to NRC by him on March 10, 1960 His statement of professional qualifications asserts ho is "quite familiar...

with various aspects of the security of the facility." And it says

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further that he is " actively involved with planning for security for the reactor during the Olympic Games."

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James Hobson. Administrative Vice Chancellor Mr. Cormier's immediate superior on the UCIA campus. Mr. I Cormier is an assistant to Mr. Hobson, who has supervisorial responsibilities for Mr. Cormier's work. Mr. Hoboon's name also e

appears on some of the security correspondence over the last decade.

John Barber. Assistan_t Vice Chancellor, Community Safety Barber was Chief of Campus Community Safety at the timo the proposed security plan was sent to NRC and, accortling to the i letter of transmittal of the plan by Dr. Wegst, he received a copy of the plan at that time. He is in charge of campus security, among other matters, and is quoted in the UCIA Daily Bruin of February 3, 1984, as one of the key figures in security plannir.g for the reactor for the Olympics and as aware of the response plans in case of threatened sabotage.

Patrick Connolly Director. UCLA Police Servicen 1

Identified by UCIA as authorized to have access to the reactor security information, and must be cognizant of the coeurity plan, and likely the security inspection reports.

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What Does Mr. Cormier_Say Abnut Who Was Aware of His Representations?

s We have seen above that a number of NEL ani other University I

Staff had access to the security plans and inspection reports, had

, participated in the draf tin 6 and review of the plans and been present I

for the inspections. However, none answers the Board's questions of the extent to which they were aware of Counsol's contrary represent-ations on the sabotage matter, and whether they approved or tried to  ;

correct said representations. What doca Mr. Cormier say on the matter?

Mr. Cormier states that certain statements in his pleadings  !

of August 25 and December 13, 1983 were not reviewed prior to their submission _ by Messrs. Reidhaar or Woods, Ms. Helwick, or any other "reprecentative" of the Pegents. 'Ihat assortion, so narrowly circumscribed, leaves unanswered three matters contral to the Board's Orders (1) Were the -Regents, other attorneys for the Rogents, or other UCLA employees aware of the representationsmde in the August 25 and December 13, 1983, pleadings af ter they were filed?, (2) Were ,

the Regents, other attorneys for the Regents, or other UCLA employees aware of the repeated representations made over the last 3f years a n the sabotage mM,ter, in addition to tha' August and December 1983 plmdings?, and (3) If'no one was aware of; the reprenantations, from

, s khom did Mr. Cormler (and Ps, Helwick and Pr. Woods) obtain the factual informatio[about which they made representations to the I

Eoartl? If the ancuer to 'oither of the first two questions is affirm-ative, it remains unanswered whether they approved of the representations--

ard are thus associated with the assorted raterial false statements--

94/ Affidavit of W1lliam H. Cormier of J/9/64, paragraph 2

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- or whether they attempted unsuccessfully to make changes in the representations, in which case Counsel for UCIA may have knowingly

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made statements he was warned were false. It is an important question, which the Boaztl directed be answered; it is unfortunate that the

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University failed to comply with the Onier. The failure of most of the individuals with access to the plan and reports to comply with the Order and respond is regrettable, as is that of the Regents, and Mr. Woods and Ms. Helwick (who were certainly aware of many of the representations on the matter over the years, having been present I at the prehearing conferences where they were made, and receiving service of the pleadings in which they were made, and on occaolon submitting the pleading themselvea.) Mr. Cormier's answer on the subject appears evasive-- he merely says no one reviewed two of the many statements in question dmt to their submission. Furthermore, he says nothing one way or the other as to whether anyone ever approached him and tried to utke changes in his representations on the matter.

The Board's directive tha,t the Regents, their attorneys, and others within the University organization respond as to their knowledge of and recponse to the long-atanding representation was not complial with. The Boant noted thin failure-- in particular, that all that had been addressed was whether anyone reviewed Mr.

Cormier's pleadings before he filed them-- and once again directed that the awareness of the representations, and approval or dicagroo-mont with them, be addressed. We shall next see if the University adequately responded thereto.

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[1 _THE MAY 1' RESPO M i

Tae Ostran6 er Statemento j

Mr. Ostrander attests that (1) Mr. Cormier did provide (

him copies of the August 25 and December 13, 1983, UCLA pleadings, (2) but he did not recall reading those documents prior to the time the Baard raised the question of possible misrepresentation in its February 24 Ortier, and (3) he did not ask any other member of his staff to review those documents.

What remains unanswered, from the narrowly circumscribed Ostrander response, is (1) whether other UC personnel besides Mr.

Ostrander obtained copies of the pleadings, (2) whether Mr. Ostrander or other UC personnel reviewed other documents (such as CBG's Curtailment Motions I and II, ard its December 13, 1983 pleading, which prominently quote the August 25 statement in question, (3) whether Mr. Ostrander or other UC personnel were aware of the representations made in the August 25 or December 13 UC pleadings, whether by reviewing the documents or by some other means such as verbal communication or news reports, and (4) whether Mr. Ostrander or other UC personnel were aware of the repeated representations on sabotage matters mede over the last three and a half years, besides the statements in the August 25 and December 13, 1983 pleadings.

It is noted that Mr. Ostrander and other UC personnel in question were present at times at the prehearing conferences where these mtters were discussed, that Staff's motion for summary disposition and the various UCLA statements of support occurred over r..

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g a period of years, ar.d that it in difficult to believe that a primary, long-standing representation so much at the heart of the litigation and the public controversy could go on for 3t years without any UC personnel besides Mr. Cormier being aware of the g representations.

It is further noted that the representations that the reactor security plan was not designed to provide protection against (

sabotage, and that UCIA claimed it was not required to, was widely publicized in the press. It is difficult to believe that matters the public could read about in the newspaper were unknown to those intimately involved with the reactor's security.

t Furthermore, it is noted that numerous UC personnel with access to the plan and inspection reports are not located at NEL--

9 for example, Vice Chancellor Barber and Dr. Wegst. Security cor-respondence generally goes through Dr. Wegst's office. Was he unaware of 3} years of representations on the subject? t And, finally, if no one with access to the facts about UCIA security was aware of the representations being nade on their behalf, on what factual basis were those representations nade?

Counsel spoko for UC staff-- did it do so without speaking too UC staff?

Unfortunately, these matters are not answered, because the Ostrander rer,ponse is so narrowly drawn.

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_Mr. Cormier's Response Mr. Cormier's response is equally narrow. He claims--

although there is no confirmation of this provided by the individuals involved- that Mr. Cormier's August 25, 1983, pleading was not

_.25/ See, for example, the UPI wire item of 4 January 1984, attached

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reviewed by any of the attorneys in the Office of the General Counsel nor by any other " representatives"-- a tera not defined--

of the Regents. He does not however inclMe in that denial his d December 13 pleading. Furthermore, he does not indicate-- nor do the key individuals likely to be involved- whether any UC personnel were aware of the representations contained in either pleading.

In particular, he omits mention of whether any UC personnel became

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aware of the August 25 statements via CBc's Curtailment Motions I and II or December 13 pleading, or the press reports on the (

matter. And there is no indication whether any UC personnel were aware of the other related representations on sabotage matters that had occurred consistently over 3 years. Did Mr. Cormier (

discuss CBG's Motions for Curtailment with any UC personnel- motions I

tased largely on the August statements? Finally, it is inadequate '

to rely upon the statement of the individual accused of material falso statements on these matters one should have, as the Board t

directed, responses from the others involved. In particular, it is most disturbing that while Mr. Cormier repeatedly makes assertions about what Mr. Ashbaugh and he did or did not discuse, in two f affidavits we have not_a singlo_ word from the reactor's security officer, the peren_who wrote the security plans, as to what he was aware of regarding these representations and what he told Mr. Cormler.

Thiaraises significant unresolved questions.

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Summary Roganling Onissionn l Despite two Boant Oniers, we still do not know what UC l

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personnel were aware of what representations made throughout this proceeding, whether they approved of the representations

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or attempted to make changes therein. We know that a good many UC personnel had access to information which calls into serious p question the representations made on their behalf. But we still have not been fully told whether Mr. Cormier made representations about facts he did not possess er despite facts he did possess, d or in some other fashion. We still have not been provided answers, despite the clear language of the two Board Orders.

THE AFFIRMATIVE DEFENSE t

Mr. Cormier's Assertion that He was Unaware of 'the Contents of

_the Plan and Inspection Reports When He Made His Representations Mr. Cormier asserts that he had only skimmed de security plan at the time he made representations about its contents, and likewise had not studied the security inspection reports when he i made his representations about the Staff practice with regards sabotage practice at UCLA. Itisdifficulttobelievethatfor3i years Mr. Cormier had been defending a plan he had barely looked at.

_But more importantly, if true, Mr. Cormier's representations about the plan's_ contents would indeed be materially false, because he

_r_ade representations to the Board about the contents of a document with which he was unfamiliar. If he knew the co ntents of the plan, j _then his statement was false when he described those contents: if l

he was unaware of the contents, he had no business making represent-ations about them. The statements in question could havo no purpose

but to have - the Boarti rely upon them as accurate characterization of the document in questions ignorance of the document's contents is no defense for mischaracterizing your own knowledge and the document itself.

We Assertion that the Plan was " Basically" Designed to Comply with 10 CFR 73.67 and Relied largely Upon the Draf t Reg Guide Mr. Cormier asserts that the security plan was "basica11y' designed to protect against thef t and to comply with 10 CFR 73.67.

%is would appear to not fully accurately state the case.

Mr. Ashtaugh indicates in his krch 9,1984 declaration in paragraph 5 that the facility is protected against theft and

" deliberate attempts to damage the reactor, its equipment, or other parts of the facility." He goes on to say that the " basic means of providing such protection is to control access.to the facility and to have a means of detecting unauthorized access should it occur." He admits that the plan was designed to provide

" protection against an intruder whatever his purpose may be." M.

He merel;' says tha t while the plan is designed to protect against theft and sabotage, it was not designed with "any specific design basis raiological sabotage threat in mind" nor with " armed guard presence at the facility at all times" nor" mandatory personnel searches and explosives detection devices."

Mr. Cormier asserts that the plan was based on the Draf t Reg Guide for 10 CFR 73.67- but Mr. Ashbaugh says he used both the 73 67 i

Draf t Reg Guido and the Sample Plan, which says in its introductory 96/ emphasis added

_9]/ all emphases added

statement of purpose that it creates compliance with 73.67 and 73 40, theft and sabotage protection. 'Ihe cover letter to the Sample Plan, included by the NRC Staff, but not by UCM, tells licensees that they must meet 73 67 in addition to the existing 73.40 sabotage protection requirements. We pre-1980 plan is now admitted to have been designed to comply with 73.40 sabotage requirements, and the post-1980 plan maintained those

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provisions and added additional sabotage provisions.

Mr. Cormier claims that a review of the table of contents of the plan indicates that it follows closely that of the Draft Reg Guide for 73.67, but careful examination indicates substantial differences. Those differences are that Mr. Ashtaugh has added to the 73.67 table of contents " identification of essential equipment" and" surveillance of vital areas", matters related exclusively to sabotage protection. In fact, if one compares the table of centents of the Sample Plan (for thef t and sabotage proteci, ion) with that of the UCM plan, one finds that the UCiA plan follows more closely the Sample (sabotage) Plan than the Draf t Reg Guide.

'lhe table of contents items are almost identical between the UCLA plan and the Sample Plan, but differs somewhat from the Draft Reg Guide table of contents- where the_ two differ, it is in the addition i

of sabotage contents to the UCLA plan.

98/ Pagano letter of August 9,1979

_p39/ See footnotes 4 and 5 on page 2 above l

The Assertion ht When the__ Staff Approved the 1980 Plan in 1983 With Sabotage Provisions One Could Argue only_ the Thef t Provisions Required Compliance Pr. Cormier argues that by approving in November 1983 the UCIA plan, with its sabotage references, Staff really intended to only approve the thef t portions and UCIA was not bound to obey the sabotage portions. First of all, that is not correct ~ 10 CFR 73.40 requires licensees to obey their security plans. But seconily, it misses the point of the accusation of misrepresentation on this matter.

UCIA told the Board that sabotage proteation had never been required, and as proof of this asserted that its plan had no sabotage provisions and yet had been approved by the Staff.

If it did have sabotage provisions-- as is now evident-- then its approval b& Staff demonstrates the opposite of what UCIA claimed, Staff practice of approving plans with-- not without-- sabotage protection. More importantly, the dates are wrong.

The Security _ Plan Approved by the Staff at the Time of the Cormier Representations was the Prior Plan, the One All Admit was Designed to Provide Sabotage _ Protection The most explicit UCIA statement about its plan was made in August 1983. It said that the plan was not designed to provide protection against sabotage, and yet had been approved by the NRC S hf f. Yet the plan written af ter 1979, and submitted with the 1980 application, was not approved by Staff until November 1983, three months after the Cormier representations. 'Ihe plan in effect, i.e., the only one approved, at the time of all the representations

in question over the years was the pre-1979 plan, one now admitted was designed for sabotage protection, to comply with 73.40, and which was required to be so written, and was evaluated by Staff therefor.  !

hus the statement in question was apparently doubly false-- UCIA's security plan at the time of all the representations and the only one. approved by the NRC Staff, was a plan that was designed, evaluated, and required to provide sabotage protection unter 73.40 We proposed plan- not yet approved by Staff-- was alsa written to comply with 73.40 (at the direction of the Pagano letter mandating it, using the Sample Plan detailing it, tased on the Upgrade Meeting direction Ostrander heard). So when Staff finally did approve the second plan-after the representations about their approval-- they approved a plan whose author says was designed to protect against sabotage and thef t, and that says so itself in its statement of purpose and perfornance objectives, as well as its provisions. 20 key, of course, is to compdre the pre-1980 plan, agreed to to required to protect against sabotage, with the post-1980 plan, asserted by some to not have sabotage protections, and see if anything of significance has been romoved.

Staff admits, in fact, that sabotage provisions were retained from the previous plan OV and Mr. Ashinugh says additional sabotage measures were added. The plans Staff al,eoved both had sabotage provisions: both say their purpose includes sabotage protections and Staff approval demonstrates, if anything, the converse of the proposition asserted by UCIA's counsel.

100/ See Skovholt letter of 11/30/73: Carlsonaffidavit,1/10/84, para.9:

Inspection Report No IE-V-264: etc.

101/ See Staff pleading of Pay 1,1984 102/ See Ashtaugh affidavit of Fay 1,1984, paragraphs 5 and 15 L

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%e Assertion That Cormier Meant Something Different than the Board Did When He said the UCLA Security Plan "Is Not Designed to Provide Protection Against Sabotage" his argument runs through both pleadings in various forms.

UCLA asserts at various times that the Cormier -iatement that the plan "is not designed to provide protection against sabotage" is meant in the sense that (a) the plan is not designed to be able to protect against all conceivable acts of sabotages (b)theplandoes not require full time armed guards or mandatory personnel entrance searchers: (c) the plan is not designed with a specific design lasis threat in minds (d) there are no measures wholly sepacate from theft protection measures (e) in the sense that detection is different thatn protections (f) in the sense that UCLA doesn't have the specific measures required of power reactors (g) in the sense that it wasn't UCLA's intent to protect against sabotages (h) in the sense that it is a general statement and doesn't imply anything in particular about specific components of the plan (1)inthe sense that " radiological sabotage" is meant to include the Part 73 definition plus non-radiological sabotage protections and so on.

Applicant has advanced at one time or another in defense of its original statement each of the above explanations. h e problem is that UCLA did not say any of the above, none of the above would have made any sense in the context of the rest of the pleading (which argued that the Board erred in holding that 73 40 required some measures to protect against sabotage, neasures to be debated by the parties).

The Applicant stu.ed very clearly that the plan is

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(a) not designed (despite the explicit statement in its design objective that it is), (b) to provide (i.e., have provisions),

(c) protection (the exact language of the plan, inspection reports, Sample Plan,1974 Interim Guide, Pagano and Skovholt letters, Lear letter to Catton, and on and on), (d) against sabotage (precisely what is said to be its purpose in the plan, defined by Ashbaugh as including "any sabotage which could lead to radioactive contamination or radiological release that could pose a danger to students, staff or members of the public"). All of the University's competing explanations of_ what was meant by the statement are directly at odds with what it actually said.

'lhe Boarti had ruled that some measures to protect against cabotage were necessary under 73.40 UCLA argued that this ruling was error, asserting instead that sabotage protection had never been required (wrong), this was the consistent Staff practice (wrong),

UCLA's plan didn't have ag sabotage measures (wrong), and yet had been approved by the Staff (wrong). Particularly in the context of the previous paragraph in the August 1983 pleading, the statement can only be taken to mean what it so clearly says-- and _the plan l

clearly says the opposite, in precisely the same words. Mr. Cormier i

l claims the reactor is not designed to provide protection against 1

sabotage-- the plan says its design objectives are to protect against radiological. sabotage, precisely what the parties had been delsting and precisely what the Board had ruled was necessary.

(It should be noted in passing that CBG's contention makes no mention of armed guards, continuous presence at the facility, or the like, and the sabotage precautions listed include the full gamut of access controls, keys and locks, supervision and the like that L

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. Mr. Ashbaugh, in his Mtrch 9,1984 declaration says in paragraph 5 are the " basic means" of providing protection against deliberate attempts to damage the reactor, its equipment, etc.)

he tortured linguistic explanations are not convincing, and always amount to adding a modifier to the sentence (e.g., "of the kind required at power reactors," "like entrance searches and armed guards," "in the sense of preventing all conceivable acts of sabotage")

that were not included in the representations made and would have undermined the argu' ment being made-- against the Board's ruling th.t some measures must be in place, which measures to be resolved later.

The same Orwellian linguistic argument was advanced regarding the true meaning of the phrase " low-power research reactors have never been required to adopt security plans designed to protect against sabotage." Applicant now says "never" means "since 1979."

However, Applicant didn't say "since 1979," and, in fact, the admission that sabotage protection was required before 1979 and the assertion that something changed in 1979 have only been advanced since the misconduct charges were leveled, six months after the statements in question. Furthermore, the assertion that "since 1979" was somehow indicated by the previous paragraph *a reference to 73.67 is problematic, because the same paragraph refers to 73 40, in existence sinco 1973, not 1979, and UCIA was objecting to the l Board's ruling that 73.40 applied.

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%e Assertion that Mr. Cormier's Arguments were Legal Arguments, Not Factual Arguments Mr. Cormier, in his May 1 response, argues that the

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August 1983 statements found to be m terially false were legal, not factual assertions (and therefore, he appears to argue, could notbemateriallyfalse). However, the statements are all factual arguments in support of a legal position. If the facts are wrong, then the legal position resting on said facts no longer has support.

The Board has already ruled that the facts asserted to be facts were clearly material- its legal decision could have been affected by the asserted facts.

Ist un recall for a moment what the four assertions weres (1) that the low-power research reactors were _never required to adopt security plans to protect against sabotage (now admitted to be factually incorrect): (2) that consistent Staff practice was to not require sabotage protection (also admitted now to be incorrect):

(3) that UCIA's plan was not designed to provide protection against sabotage (denied by its author, its stated design objectives, and the Pagano letter and Sample Plan according to which it was written) ani (4) that Staff had approved the plan without sabotage protection (clearly false- Staff now merely argues it ignored the sabotage provisions in approving the plan, months after the assertion was rade, and that the approved plan at the tine had been evaluated for required sabotage protections).

THESE ARE NOT MERELY LEGAL ARCUENTS: THEY ARE FACTUAL REPRESENTATIONS IN SUPPORT OF AN ERR 0NEOUS LEGAL ARGUENT. Mr.

Cormier contradicts his own assertions about these not being factual statements in paragraph 3 of his Fay 1 affidavit when he says his statements were "as much legal as factual."

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he Assertion that Mr. Cormier Was_ Relying upon Staff Mr. Cormier argues that his statements should not be viewed as materially false beacuse he has throughout this proceeding relied "on what I understood to be the NRC Staff legal interpretation of the applicable Part 73 requirements." May affidavit, paragraph 3 Yet Mr. Cormier seems to miscomprehend the nature of one party submitting argument in support of another party. The fact that one party has taken a position in the interests of the other party does not entitle the second party to assert facts it either knows to be falso or does not know to be true. A representation in support of someone else's argument is an independent assertion of its correctness.

If one has no basis for making that assertion, or has - for knowing it not to be true, it is impropoer to make such assertions, no matter what position might be taken by others.

Mr. Cormier was telling the Boani to agree with Staff's l position, and cited four asserted fe. cts in support thereof. Rose l

facts appear to have been materially false. The fact that they l were offerred in support of someone else's motion-- a motion in one's own interest-- does not justify the making of statements not i

known to be true or known to be other than true, l

The Assertion that Mr. Cormier was Not Peferring to Specific Provisions of the Plan. but to a Design Objectivo In his March response, Mr. Cormier asserted that the plan had no specificsabotage provisions, only a design objective to protect against sabotage. In his hty response, he reversos this, saying his August statement was a general one of design objective, not a specific one of actual provisions. Besides the obvious contradiction, neither was what

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was actually said. Additionally, if his assertion were indeed about the design objective of the plan, then the assertion was materially false, because the plan itself says its design objective is "for the protection of the reactor, protection of the staff and the general public against radiological sabotage...."

We Argument that Cormier Based his ReDresentations of the Plan Not

_on the Plan. but on Reg Guide 5.59 and his Tours of the Facility FM. Cormier's August representation was clearly about the plan. To assert now that he was not familiar with the Plan at the tine he made his assertions, and that the fact that he was wrong about the plan's contents should be excused somehow by his asserted lack of reliance on its contents for his representations about its contents is problematic. he Boant clearly took the statements-- as they can only be taken-- as a representation of the plan's contents from one who knew the plan's contents. That his representation was based on ignorance of the plan itself is not a defense but a further criticism, because the implicit fact in the statements involved is that the speaker knew them to be a fact. That, FM. Cormier asserts, is not correct.

Additionally, it is difficult to understand how Mr. Cormier

" knew" the UCLA security plan followed Reg Guide 5 59 very closely if he was unfamiliar with the plan. It turns out from the author of the plan that it follows both 5 59 and the Sample Plan very closely- as it must, because both sets of guidance were sent out simultaneously to licensees, with instructions to use both (see Pagano letter of transmittal) so as to comply with both 73.67 and 73 40. How Pk. Cormier could have "known" that the plan followed 5 59 very closely, without knowing the plan, and how he could not know it alco followed the Sample Plan closely I

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-54 (for sabotage and theft protection, compliance with 73.67 and 73.40) is not explained.

De Assertion that " radiological sabotage" Means Armed Guards and Entry Searches Mr. Cormier asserts in paragraph 35 of his Vay 1 response, that "Nowhere is the expression ' protection against radiological sabotage' defined." However,10 CFR 73 2(p) provides the 1ccal definition:

" Radiological sabotage" means any deliberate act directed against a plant or transport in which an activity licensed pursuant to the regulations in this chapter is conducted, or against a component of such a plant or transport which could directly or indirectly erdanger the public health ard safety by exposure to radiation.

This is almost identical to Mr. Ashbaugh's definition of the term as he used it in the security plan, except that his use is more general, including the above definition plus non-radiological forms of sabotage. Ashbaugh declaration of 3/9/84, para.l. We words

" radiological sabotage" are defined in the appropriate regulation, the phrase is used in the plan in a fashion which included the Part 73 definition, and surely in an NRC proceeding if one uses the phrase in a legal pleading one must presume it will be understood according to the definition in the regulation.

Furthermore, nowhere in CBG's contention can it be found that sabotage protection is equated with armed guards and entry searches. C3G lists a dozen or so security measures it contends are inadequate at the facility for sabotage protection. The Board

explicitly ruled that it would not decide which measures were or were not necessary at this stages it merely resolved the threshold issue that some as yet unidentified measures were required. Mr.

Cormier repeats that conclusion of the Board in the preceding paragraph of his August 1963 pleading, argues it is in error, and asserts once again na protection is required whatsoever.

Mr. Cormier bases this argunent on the assertion that sabotage means access controls, and access controls means armed guards and entry searches. However, his own security officer, Ashbaugh, in paragraph 5 of his March 9,1984, declaration, says that the reactor is_ protected against deliberate attempts at destruction, and that "the basic means of providing such protection is to control access to the facility and to have a means of detecting unauthorized access should it occur." Sus, the person on which he must rely for information about the plan- because he wrote it- says the plan is designed to protect against sabotage, does so 17 access controls, but does not do so with continuous armed guard presence nor mandatory f personnel searches (id.). We affidavit of the author of the security i

i plan would appear to indicate that equating sabotage protection with access controls is partly correct, but to equate it with searches and guards is not.

We basic problem is that Mr. Cormier's argument asserts

! es=entially that it is appropriate to make representations about a i

v security plan without really having seen it-- if that ascertion is L

l correct. Nowhere do we hear from anybody else. besides the individual i

most directly accused of misconduct._ as to whether they tcld Cormier L

m that the plan did or did not protect against sabotage. %is_ omission colors the entire defense. If there is a hearing, it must be remedied.

Mr. Cormier's Assertion That %ere was "No Institutional Advantage to be Gained" in Making the Allegedly False Statement he Board has already ruled that "by making a material falso statement, Mr. Cormier has put his client, the other parties, and this Board to needless effort and controversy." (OnlerofApril13, 1984,at28). By insisting on resolving a " threshold" issue which was not a threshold issue, lased on assertions which were false, a hearing that could have commenced' years before now may not even be able to be concluded in time to redress identified weaknesses prior to the Olympics, a period of vastly escalated sabotage rihk.

Had the Board been told that the current plan, approved by Staff, contained sabotage provisions, as did the proposed plant and that UCIA had been informed by Skovholt in 1973 and by Pagano in 1979 that it must have plans to protect against sabotage under 73 40s and that Ostrander had been reminded of this at the August 1979 Upgrade Meeting, we could have gone to hearing years ago and long ago resolved the matter. That resolution might not have been favorable to Applicant, whereas the delay occasioned by the material false statements has given the University three additional years of operation without a ruling that might have been against it. The delay ensured continued operation, without new license conditions:

had the " threshold" issues not been asserted, or falso lases for them put forward, hearing would have occurred long ago and continued operation, without new license conditions, could not be guaranteed.

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-57 Were was clearly an institutional advantage in making material falso statements, and clearly an injury to CBG-- three costly additional years of litigation-- and to the public - three additional years of operation with a security plan that might be found, upon scrutiny, to have sabotage provis_lons, but insufficient ones.

Mr, Cormier Asserts _ HE Pointed out the Proposed Erpurgations It was because Mr. Hirsch insisted that the Board be provided the unexpurgated version of the security plan and inspection t

reports that the Board saw the sabotage provisions.

he Arguments About Whether the Boarti Should Take the Action It Indicated In its February 24, 1984, Memorandum and Order, the Board identified two appropriate actions under the regulations for material false statements: 2.713 action against counsel and 50.100 against the licensee. It directed counsel to indicate why 2 713 action should not be taken a6ainst them, and the Regents and others within the University to indicate the extent of their supervision and involvement in the representations made on their behalf, under penalty of license suspension, revocation or modification pursuant to 50.100 Two of the four attorneys did not respond at all, despite their apparent involvement in and supervisorial or other responsibility for the representations made, and despite a second opportunity to respond. he response made by Mr. Coraier failed to address their involvement in the 3} years of representations on the matter, and we have no independent verification that they did not, in fact, review even the August and December 1983 pleadings they were sent and charged i

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with supervising. No case has been made for action not being taken against them, despite two opportunities provided to do so.

Mr. Reidhaar's declaration states that he was not involved in the case, but had instead assigned that duty to Mr. Cormier and the supervision of Mr. Cormier to Mr. Woods and Ms. Helwick, Whereas the adequacy of Reidhaar's supervision of the latter may be called into some question, he asserts no involvement in any of the representations madeoverthelast3dyears,havingleftthattothethreeothers,and no action against him seems appropriate.

As to Mr. Cormier, he has filed two responses. Se Board found the first unconvincing, and determined that material false statements had been made and that he should be formally reprimanded.

(4/13/84 Order at 29). Se Board extended to Mr. Cormier additional opportunity to demonstrate why such action is not appropriate, ani his ar6uments have been addressed in detail above, hey essentially boil down to (a) he didn't know the contents of the plan about which he was making representations: (b) he really meant the term " provide protection against radiological sabotage" in one of approximately a dozen different ways, all of which differ from the Part 73 definition or the nearly identical way the author of the plan used its (c) his assertions were not statements of fact but arguments of laws and (d) ho followed the position of Staff.

We have indicated above that ignorance of the contents of the plan is difficult to believe, not independently corroborated despite Board Order to do so, and no excuse for amking assertions which were not known to be true. %ere wore two components to the assertions

involved, the factual representations themselves and the representation that he knew the facts of which he spoke. To assert that the second aspect was not true is in some ways an admission of material falso statements.

As to the second defense, that he meant the phrase " provide protection against radiological sabotage" in one of a number of different ways, that is not what he said. He omitted any qualifier.

In fact, the argument being advanced in August, that the Board erred in finding that some as yet undetermined means for sabotage protection were required under 73.40, would have been nonsensical had the now-asserted qualifiers been added.

As to thg assertion that the representations were assertions of law, not fact, that is not true on the face of it, and he elsewhere in his declaration (P 3) acknowledged that they were fact statements.

He claimed that the plan was not designed to provide sabotage protection, when it was that the Staff had approvet UCLA's plan without sabotage provisions, when they didn't that low-power research reactors had never been required to adopt security plans to protect against sabotage, when they had3 and that_the Staff had consistently not required i sabotage protection, when that wasn't so.

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'Ihe facts to the contrary were all in the licensee's possession, yet it failed to disclose them. The Board was not informed of the provisions of either security plan, of the Pagano or Skovholt letters requiring 73.40 sabotage protection at UCLA, of the 1974 and 1979 interim guidance and Sample Plan which included 73 40 sabotage protection and which UCIA used in producing its plans, of the conclusions now stated in the Ashbaugh affidavit that the UCIA facility is_s protected against 4

m theft and deliberate attempts to damage the reactor and its essential equipment, of the inspection reports which routinely involved sabotage protection, of the Catton or Lear correspondences.

Security Officer Ashbaugh, NEL Manager Ostrander NEL Supervisor Zane, NEL Director Catton, among others, had been at the facility for a decade and had long-term access to, and involvement with (via draf ting, reviewing, approving, transmitting) the plan and related documents. Yet none of these facts were brought to the Board's attention.

Wo question of who knew of the representations made over 3iyearsremainsalmostentirelyunanswered. But there are only three alternatives: (1) Those in a position to know the true security situation and requirements at the facility so informed Cormier, and he made his assertions to the contrary anyway; (2) Rose who were in a position to know the true situation knew of his representations but failed to tell him the facts , in which case they withheld material facts from the Board; or (3) Mr. Cormier's representations were not based on requesting the facts from those who knew them, and those who knew were not aware of his representations, and thus his assertions of facts were baseless. It would appear that any of the above explanations lead to the conclusion of material falsehoods: either through the assertion by Cormier of facts he did not possess, or nisrepresentation of facts he did possess, or misrepresentation or material omissionc by others who did possess the facts.

We sane is true regarding the supervision for Mr. Cormier.

Paterial facts in the possession of the University, who Er. Cormier s . . ,. -

. , - - .n.<- ,

purportedly represented and spoke for before the Board, were for many years not provided the Board. Representations were made, for many years, which were not true. The license holder is respo'nsible for the truthfulness- and lack o2 material omissions-- in the information provided on its behalf to Licensing Boards. 'lhe Re6ents failed-for three and a half years-- to fulfill that obligation under section 186 of the Atomic Energy Act. Scienter is not required for the statement to be materially false, and omissions of material facts is likewise a " material falsehood" subject to the Section 186 (and 10 CPR 50.100) standard of license revocation for material false statements.

See _ Virginia Electric & Power Co (North Anna Power Station, Units 1 & 2) AMB-234, 3 NRC 347 (1976) and CLI-76-22, 4 NRC 480 (1976).

One should note a distinction between the situation at hand and the VEFC0 cases- there no injury resulted, because the VEFC0 case was an initial licensin5 and thus occurred prior to operation and thus any public risk. In the UCM case, it is not an initial licensing, and thus the delay occasioned by the material falso statements over many years, and the insistence of resolving so-called " threshold" issues despite information in Applicant's possession contrary to the position it had taken, created three additional years of risk and operation with the adequacy of the security plan unresolved. More particularly, it has led to a situation where additional protective measures, if found necessary for the extraordinary risks associated with the upcoming Olympics, may be inpossible to put in place in time, 61ven the risks of release of long-lived isotopes unaffected by shutdown in the ovent of sabotage involving incend,iaries or arson. Tremendous injury has resulted to CBG's interests, as well as its resources, and

significant damage done to the integrity of the procealing.

Much of the reconi established to date on Contention II and safety--

based as it in significantly on testimony by Ostrander, Wegst, and Ashbaugh, and representations made by UCIA counsel-- is now tainted and called into question, as is any future recon 1 resting to any significant degree on testimony of those three or others potentially involved in this matter or on representations made in the future by Mesces. Cormier or Woods or Ms. Helwick. To ensure that the integrity of the record was maintained, the Boani demanded full disclosure by these and other individuals. It received none. The Board gave the University another chance to comply, and still it received the most partial of responces. The Boani still has not

.bcen told who knew of the long-standing representations, who approved and who tried to rake changes. None but the accused FM.

Cormier has done more than graze the surface of answering that directed question, and it affects the integrity of the entire proceeding.

What Should Be Done?

'Ihe Boani told UCIA what the regulations randate if adequato explanations were not forthcoming: 2.713 actions e. gainst counsel, 50.100 licenso suspension, revocation, or modif5 cation for material falso statements or omissions by the institution. Two of the four attorneys rumed, Helwick and Woods, made no defonser the; the 2 713 actions identified by the Boani are thus appropriate. One of the four attorneys, FY. Reidhaar, swears that he was not personally involvedi no basis for action exists, although the adequacy of his supervision can be questioned. Mr. Cormier the Boani has already fourd to have trade

-63I material fal'e statements: nothing in his second response provides adequate basis for reversal-- to the contrary. The only adequate action, in light of the Board's three prior findings of failure of candor and failure to obey Board orders in 1980-81, and accompanying threat of action, is suspension from the proceeding. The integrity of any future record, and the effectiveness of the incentive to the institution that permitted these material misrepresentations to be made on its behalf, as well as the severity of the injury and materiality of the falsehoods suggest no less for the counsel involved.

IT MUST BE NOTED THAT HAD THE FATERIAL FALSEHOODS SUCCEEDED, THE BOARD WOULD HAVE DISMISSED THE SABOTAGE CONTENTION AND THUS FAILED IN ITS ASSIGNED DUTY OF RESOLVING SERICUS PUELIC HEALTH AIO SAFETY ISSUES IEGALLY COGNIZABLE. IF THE FALSE STATEEENTS HAD FULLY SUCCEEDED, FAJOR SABOTAGE DEFICIENCIES AT A REACTOR IN A HIGHLY PCPUIA7ED AREA WITH NO CONTAINEENT STRUCTURE OR BUFFER ZONE COULD RESULT IN PREVENTABLE RADIOLOGICAL SABOTAGE. THE FALSE STATEMENTS PARTIALLY SUCCEEDED-- YEARS OF ADDITIONAL PUBLIC RISK RESULTED, WHICH CNLY LUCK PREVENTED FROM LEADING TO A RADIOLOGICAL INCIDENT. AND THE DEIAY RESULTING PAY STILL RESULT IN AN UNTOWARD INCIDENT, PEr1 HAPS DURING THE OLYMPICS, THAT ColED HAVE BEEN PREVENTED BY TIFELY ASSESSMENT OF THE EFFECTIVENESS OF UCIA'S SABOTAGE PROTECTIONS, RATHER THAN S0 MUCH TIME WASTED UNNECESSARILY DEBATING THE EXISTENCE OF SUCH PROTECTIONS A10 REQUIREMENTS.

As to the licensee itself, it was its long-standing failure to appropriately supervise its representatives that contributed to these material false statements. Information and documents in the possession

1

-63b of the Applicant, raterial to matters before the Board and which delayed it performing its required hearing duties on the real issues before it, were withheld from the Boani and parties. Had the information in Applicant's possession been provided-- the Pagano letter, the Sample Plan, the Catton, Icar, and Skovholt letters, the 1974 Interim Guidance, to name just a few, then the applicability of 10 CFR 73 40 sabotage provisions would have been rapidly resolved. Had the Boani & parties been provided the above documents, had the knowledge in,the possession of UCLA security personnel been brought forward, had the existence of sabotago protection in UCIA's then-current and then-proposed plans been revealed, the Board could have had a very different record upon which to base its deterninations. The Regents had an obligation to ensure that maerial facts were brought before the Boani. It had such an obli6ation even had no one asked the University for such informtion.

However, CBG did ask for it. On July 20, 1982, CBG submitted a request for production of documents reganling the limited issue of applicable security regulations on which the Boani had opened discovery and directel UCLA to respond. Item 7 was as follows:

All documents referring or relating to NRC reauirer:ents for procedures, struc_^ures and other measures designed to minimize the potential for radiological sabotage at the reactor facility. If any of the documents requested in this Request No. 7 contain protected informtion please identify each such document and produce those portions which do not contain protected inforration.

(emphasisadded)

'Ihe UCIA response, signed by Willian Cormier and dated August 9,

1982, was as follows:

University objects to the request on the grounds that the only document responsive to the reauest is the physical

_ security plan for the facility, which consists of protected information and such information _is not relevant to and is not reasonably calculated to lead to the discovery of

_ evidence admissible on _the question of the applicability of 10 CFR Part 73 safeguards regulations, which is the extent of the scope of discovery that has been permitted by the Boarti.

(emphasisadded)

We now know that that response by the University, made by Mr. Cormier who was required to check with the custodian of security records for the facility, was materially false. First of all, the University possessed numerous other documents, protected or not, relevant to the question of NRC requirements for sabotage protection (e.g., the Sample Plan, the Skovholt letter and Interim Guidance, the Catton, l4ar, and related correspondence). Had the University identified and produced those documents, the current situation would not obtain in the proceeding. Secondly, the passages in the one document i

that was identified as responsive to the request, the security plan, l

was deemed not relevant, despite the clear relevance and the eiplicit i

request to produce the relevant portions which did not contain protected inform tion. Had the University simply provided the Design Objective and Purpose passages, or not denied that they were relevant, the entire proceeding would have been different. How Mr. Cormier can now assert that he was unaware of the existence of any of the relevant documents ani the sabota6e passages of the plan at the time he made his August 1983 statements is difficult to understand inlight of his August 1982 assertions- for which he was requiral to check with his security staff and custodian of records-- that no other document relevant to NRC sabotage requirements for the UCLA reactor existed, and that i

m i ( .

4 '

4h those portions of the security plan responsive to the request were not relevant to the que'st' ion of applicability of Part 73 sabotage safeguards for the facility in question. To make that assertion, he aust, one would think, know the contents of the document he asserts is irrelevant to the issue. Its relevance- and those of numerous other documents in UCLA's possession neither identified nor produced- is no longer in question.

_ Conclusion Wree years ago this Board accused the Regents institutionally and these attorneys personally of lack of candor (Board Orders of 12/22/80,3/10/81,5/29/81). The Board directed that such behavior cease. Applicant continued todeny the existence of documents it knew existed and facts in its possession, and the Board a second time directed the behavior cease, threatening sanctions:

his Board in charged with the responsibility of obtaining a complete record on which to tase a decision. We will not allow this duty to be compromised. or the proceeding to be further delayed, by gamesmanship. Failure of the parties to fully cooperate in responding to discovery re-quests in the futuro may well result in the imposition of sanctions by the Board under 10 CFR 2.707.

(Order of 3/10/81, emphasis added) l UCIA still did not comply, failing this time, as in the situation before us nowr to respond as directed to. (In the present instance,

! none of the Regents, two of the attorneys, and essentially none of the key personnel answered the basic question posed by the Board.

By narrowing what little response there was to the most circumscribed of answers, the Board still does not know who was aware of the representations mde over the years, and whether they approved or I

k.

attempted to alter. If the proceeding continues, those questions cannot go unanswered third chances at narrowly limited affidavits willnolongersuffice.) he University's refusal to comply was called " unacceptable and blatantly insulting," and the Boad cried "Enough is enough." h e Boa d threatened sanctions under the same 2.713 provisions they now face. We attorneys asserted it was all a misunderstanding, and apologized. The Board finally ruled that no sanction was appropriate under the circumstances given the lack of experienced counsel for Applicant. (Order of August 24, 1981, at3-4).

Certainly, three years later, lack of experience can be no excuse. W e Board said then, "Enough is enough!" but it has not been. Iack of candor on material matters persists. he Board said three years ago that it "will not allow" its duty of obtaining a complete record "to be compromised, or the proceeding to be further delayed, by gamesmanship." 2 ree years later, it appears clear the duty of obtaining a complete record has indeed been compromised, and the proceeding much delayed by continued gamesmanship.

Were are only so many times presiding bodies can threaten sanctions and not enact them before the adjudicators lose the authority necessary to regulate the proceedings, ensure a full and complete

, record, and avoid delay. CBG submits this is such a turning point. l CBG opposes the Applicant's plea that it reverse its findings of material false statements. CBG urges the Board to adhere to its ruling, and to impose the sanctions it put the parties on notice of on February 24, and about which it gave Applicant one last chance on April 13- 2 713 action against counsel, and 50.100 license

f

. revocation or suspension for the Regents. Faterial false statements, as well as material omissions, have been made gravely putting at e

risk the integrity of the proceeding, its evidentiary record, and its ability to timely resolve- safely- matters of significant public health and safety and common defense and security import. Continued license possession in the face of these material falsehoods and needless delays, and failure once again to impose sanctions it has itself identified can only result in the Board's duties to timely rule based on a truthful .

record to be compromised, as the Board presaged three years ago, by

" gamesmanship."

Should the Board not take 2.713 action against Mr. Cormier

\

and 50.100 action against the licensee, both of whom are responsible, in their own way, for these material false statements and years-long delays, CBG respectfully requests, as the party injured by the mis-representations and delays, a hearing in which the questions unan-swered by the two UCLA responses (and the failure to responi by so many of its representatives and staff) can thoroughly explored.

Respectfully submitted, q

/

,!, C/, '

/

q Yp k' / MN-Daniel Hirsch President t CBG l

Executed at Ben Iomond, CA on this 9th day of Fay,19PA i

L

. UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION

{

. BEFORE THE ATOMIC SAFE'rY AND LICENSING BOARD In the Matter of Docket No. 50-142 (

OF CALIFORNIA (Proposed Renewal of

) Facility License)

(UCLA Research Reactor) ) I DECIARATION OF SERVICE I hereby declare that copies of the attached: CBG RESPONSE TO

_ APPLICANT'S REQUEST FOR REFERSAL OF THE toAHu s AFHIL lj (

FINDING OF MAThMIAL FALSE STATtJ1ENTS _ _ _

An the above-captioned proceeding have been served on the following by deposit in the United States mail, first cl tss, A postage prepaid, addressed as indicated, on this date: May 9, 1904 .

John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Clenn R. Woods U.S. Nuclear Regulatory Commission Office of Ceneral Counsel t 590 University Hall Dr. Emmeth A. Imebke 2200 University Avenue Adminis 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 c

hiiinistrative Judge Lynn Naliboff Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Vashington, D.C. 20555 I 1685 Main street Chief, Docketing and Service Section Office of the Secretary Dorothy Thompson U.S. Nuclear Regulatory Commission .

Washington, D.C. 20555 Nuclear law Center 6300 Wilshire Blvd., #1200 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ms. Carole ' gan Esq.

Atomic ety ice e ard Fanel attention Ms. Colleen Woodhead U.S 'ucl Reg cry Conmission

(

Washing ' 20555 William H. Cormier '

Office of Administ:a tive Vice Chancellor '

// , /

University of California g /f g[Lg f'

/

405 Rilgard Avm ue ,a Los Angeles, California 90024 -

~

g President -

COMMITTEE TO BRIDGE THE GAP i