ML20093H928

Reply Opposing Committee to Bridge the Gap (Cbg) 840703 Response to Univ Request to Withdraw Application.Cbg Not Established as Participant in License Termination Proceeding.Certificate of Svc Encl

ML20093H928
Person / Time
Site:	05000142
Issue date:	07/20/1984
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8407250410
Download: ML20093H928 (11)

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9-CCCMETED UShBC

'84 JLt 25 All:41 UNITED STATES OF AMERICA..-. __ ...

NUCLEAR REGULATORY C0t@tISSION. Vf d .

BEFORE THE AT0f1IC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-142 -E THE REGENTS OF THE UNIVERSITY (Proposed Renewal of Facility-0F CALIFORNIA License Number R-71)

(UCLA Research Reactor) ) . July 20, 1984

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. UNIVERSITY'S. REPLY TO CBG'S RESPONSE TO UNIVERSITY'S REQUEST TO WITHDRAW THE APPLICATION i

DONALD L. REIDHAAR

-GLENN R. WOODS CHPISTINE HELWICK 590 University Hall 2200 University. Avenue-Berkeley, California 94720 Telephone: (415)642-2822

-Attorneys'for Applicant

-THE REGENTS 0F THE UNIVERSITY OF CALIFORNIA

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I. INTRODUCTION l

On' July 3,.CBG filed a response to University's request to

- withdraw its license renewal application. CBG does not object to the .

- withdrawal request provided that ~the Board in accepting the withdrawal imposes certain conditions and takes care of certain. procedural matters.

Among the conditions which CBG seeks to. impose are the following: that

. University _ ship from its facility all of its special nuclear material by January 1,1985; that University submit a plan for dismantlement of the

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reactor by January 1,1985; that the reactor. be dismantled; that CBG be kept informed in the matter of. the UCLA reactor by continued service of

~ staff-applicant correspondence and-maintenance of the local public document room until such time as dismantlement is complete; that until

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the year 2000 University provide notice:to-CBG of any intended. change in-licensing status of the. reactor; that CBG be given an opportunity to.

copy for its records the reactor security' plan and .other security -

documents comprising.the security file'fo'r-the UCLA reactor; and that;

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University be required to' preserve and permit copying of'essentiall'y all

-other documents.related~to.the reactor facility until final

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-dismantlement of the reactor occurs. As. discussed, below,-University;

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opposes the: imp'osition>of:thesefconditions. -

'II. BACKGROUND .

University submitted an applica' tion to renew the c_ operating: 7 O

clicens'e of its ~ UCLA research reactor' in = February,'1980.. l Notice oLthe' proposedirenewal offthe license!.and the!opportunityifor; hearing was .

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'" Committee to~ Bridheithe' Gap's' ResponseJto~ liniversity's1Reques't to! s

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-. WithdrawLits; Application for:Licen.se -Renewal" (Response)e -

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. _2 published'in the Federal Register in April, 1980. CBG petitioned to intervene in May, 1980. The Licensing Board accepted CBG as a party to the proceeding in September, 1980, and, by March, 1981, twenty contentions had been admitted for litigation. A period of extensive discovery followed. Summary disposition was granted on one issue (the financial qualifications of the University), but denied or deferred on the remaining issues. Evidentiary hearings were held on the class of license issue in May, 1983, and on the " inherent safety" issue in July, August and October, 1983. With the exception of its ruling on the adequacy of the financial qualifications of the University, the Board did not issue any decisions on factual issues in contention.

On June 14, 1984, University informed the Commission of its intention to withdraw the application and requested that the Board suspend the proceedings for the purpose of considering University's-request to withdraw. In orders issued June 18 and June:22, 1984, the Board suspended the proceedings pending consideration of the withdrawal request. Staff.and CBG both responded to the withdrawal request. On June 22, 1984, CBG submitted a petition to the Commission to require immediate removal of the-fuel from the UCLA facility.- That petition is still pending.

III. DISCUSSION

'A. Applicable Legal Standards The NRC Staff'has reviewed.the regulations.and Appeal Board Jdecisions pertinent.to the' withdrawal of.a: license application.and:

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. i Jtermination ofla license.2. Staff points out'that-University must-i

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. retain' a valid . license pending completion of the license termination n '

procedures. - Accordingly,-Staff concludes that the withdrawal of the

_ application for license renewal can be granted on condition that University apply for termination of licence, pursuant to 10 C.F.R. 950.82 3

and comply with the procedures necessary to obtain an order termi.nating the license. Staff Response, at 8. Staff also concludes that the Board should' vacate its ruling on Contention XVIII-(financial qualifications) and ~ dismiss the adjudicatory proceeding without prejudice. Staff Response, at 9-10. University concurs in Sta'ff's application of the relevant legal standards to University's request to withdraw its -license renewal-application.

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B. Additional: Conditions Being Proposed.by CBG In its Response, CBG proposes a number of conditions to be-

. imposed on University 11n " consideration of the Board's acceptance of:the -

withdrawal-request". In_ general, CBG's proposed conditions ~ pertain to

- the. lice ~nse termination procedures of 10 C'.F.R.c950.82 and not to the.-

proceeding to consider University's applicationf to renew.the~ UCLA..

. reactor..' operating license. However, CBG.has not.; established,L nortcould J -

it establish, any rightlto participat'e in the-licen'se termination

- process.1 As -justification .forjits' proposed conditions' CBG . relies 2l '"NRC'.St3ffResponsetothe: Request:bythe-Oniversity'ofCalifornia'.

. to Withdraw the Application ~for Renewal of the License-for; the UCLA- ,

LResearch Rea'ctor"f, dated:' July.2, 1984 (Staff's Response).JStaff>

zrefers to the: standards established by'the. Appeal' Board in ,

' Philadelphia Electric Co'.-(Fulton1 Generating Station, Unitstiland; ,

J 2), ALAB-657,_14 NRC.967c(1981) and PuertoHP.ico Electric = Power

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. Authorityi(North? Coast' Nuclear: Plant,: Unit 1),- ALAB-662, .14 NRC

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principally on the Black Fox and Bailly cases.3 CBG's reliance on these cases is misplaced. Black Fox and Bailly both involved decisions by licensing boards granting withdrawal of construction permit applications on condition that the site be restored. As noted by Staff, restoration of the site was an appropriate condition to be imposed by the boards in the circumstances of those cases because the site improvements were made under limited work authorizations (LWA's) which the-boards had granted during the construction permit proceeding. Staff Response, at 4, citing, inter alia, Black Fox. The circumstances of the instant proceeding are entirely different. This Board has not authorized UCLA to take actions affecting the environment which now it might properly be asked to consider reversing.

The first specific condition which CBG proposes is that the reactor remain out of operation. University is not opposed to this condition but the condition is unnecessary. As University has reported to the Board, the UCLA staff has rendered the UCLA reactor permanently inoperable by severing the control blade shafts to-the reactor.

The third condition proposed by CBG is that University is to ship all SNM off the UCLA site by January 1,1985. The removal of fuel from the UCLA facility site is part_of the decommissioning process. CBG cites Black Fox and Bailly in' support.of this condition b't, u as discussed above, these cases are inapposite. University has committed 3

Pu'blic Service Company of Oklahoma et al. (Black Fox Station, Units 1 and 2), LBP-83-10, 17 NRC 410 (1983); Northern Indiana Public

. Service Company (Bailly Generating Station, Nuclear-1), LBP-82-37, 15 NRC 1139.(1982).

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consistent with its obligations as licensee. In view of this commitment the setting of.a specific date is unnecessary.

It is'also imprudent since it would serve to define for potential adversaries the " window" within which the fuel is to be shipped. In-any case, University could not commit;to shipping its fuel by January 1, -1985, and CBG has not provided any reasons for setting such a date.

Considered together, the second and fourth' conditions proposed  !

by CBG are that the reactor be dismantled; that a plan for dismantlement-

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be submitted by January 1,1985; that University produce progress reports periodically to be se'nt to Staffiand CBG; and that Staff thereafter provide written reviews of thes'e reports to University and:

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CBG. CBG also cites Black Fox and Bailly.in support:ofLthese conditions. But again.-these cases provide no such~ support...'UniversityJ

-is~ proceeding-to decommission its reactor and terminate:its license '

I pursuant to Section 50.82 'of.the Comission's ' Rules of Practice. CBG has:no right to seek.to interpose litself. in this process by asking this Board to impose conditions.pertainingLto the license terminationi procedures. ~ Moreover,-University ~ cannot! commit to submitting its plan by. January 1,1985. :The UCLA staffj plans to .' dismantle,.the reactor core .

,and tofremove:and~ dispose.of the exterior plumbing and metallic?

ccmponents of the core.- Oncethefuelandthe.corecomponentsofthel s

reactor are. removed, the staff intends to' conduct:a; detailed radiation ,

_ : survey to evaluate:.various options related'to further: dismantlement'of! .-

' the facility., The manner' and timing of. any further dismantlement"that' a

may be .needed-(for example,; of Lthe concrete shielding) can' only;be~ .

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determined after the radiation survey is conducted. The imposition of conditions related to University's decommissioning plans is unreasonable and unwarranted.

The fifth condition which CBG seeks to impose is that Staff and University cor.tinue to serve staff / applicant correspondence on CBG until dismantlement is complete and notify CBG of any intended changes in licensing status until the year 2000. CBG relies here on the Stanislaus case4 but has failed to. properly disclose the circumstances of that case which-has little relevance to this proceeding. In Stanislaus, the construction permit applicant Pacific Gas and Electric Co. (PG & E) moved to withdraw its application pending its challenge in federal court to California's nuclear safeguards laws .that prohibited the-construction of new nuclear 91 ants until a determination had been made by a State commission that proper means exist for the disposal of high-level nuclear waste. Stanislaus, 17 NRC at 47. PG & E planned to reinstate its application and go forward with the project when conditions so permitted and, accordingly, it proposed a method for the preservation of discovery documents as a condition of its withdrawal of the application. Over intervenors' objections the. Licensing Board granted PG & E's request to withdraw, without prejudice, and adjudicated the parties' disagreements over the most suitable method of preserving documents.- Id., at 50, 52,.and.55. It is worth noting that the document preservation order finally adopted.by the Licensing Board'in.the Stanislaus case included a provision.that the parties' obligation to 4 ~

Pacific Gas and Electric Company -(Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45 (1983).

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~ ' retain documents would terminate upon Applicant's report that it had eliminated the project from its future plans. I_d., at 57 (1 3.3).

. University has eliminated its reactor project from its future plans.

Under the circumstances in this proceeding, the Stanislaus document preservation order has.no relevance.

In addition to the five sets of conditions discussed above, CBG requests that the Board " wrap-up" certain procedural matters. CBG first requests that the Board dissolve the protective orders of June 17, 1982 and January 18,1984 (revised April. 20,1984 and again on June 1, 1984). In effect, CBG requests that the Board vacate these orders to be effective on the date the SNM has departed the UCLA reactor site. These protective orders were promulaated to give CBG a conditional right of access to certain security-rek ted information in order that CBG could litigate certain of its contentions in the' license renewal proceeding.

But for the adjudicatory proceeding CBG would have had no right-to take the photographs which are the subject matter of the 1982~ order, nor--

would it-have had any right to access to the " protected information"' '

that is the subject of the 1984 order. -Both orders.provided that CBG

would give up the information it received pursuant to the orders:when the adjudicatory proceeding terminated. .CBG should be required.to comply with these terms of the protective' orders wh~en the Board dismisses the proceeding.

CBG apparently assumes that once the fuel-is~ removed'from the L facility. University will no longer have an interest in, protecting.

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information~about the physical security system at the facility. CBG is I

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-8 mistaken. University has invested considerable resources in its physical security system and intends to maintain that security system even after the SNM has been removed from the facility. Throughout the period of decommissioning and until a final termination order issues, University will be required to maintain physical security at the facility to prevent inadvertent exposure of personnel to any residual radiation. Aside from its responsibilities as licensee during decommissioning, University may decide to use the facility as a secure-storage area in order to benefit from its investment in a security. The Board should recognize Univesity's legitimate and continuing interest in protecting security information for its facility.

The regulations cited by CBG do not support tihe remedy which-

.CBG seeks. Section 2.744 is not applicable. It is concerned with  :

requests for protected information made during the course'of adjudicatory proceedings. CBG's . request is being made after the.

adjudicatory proceeding has. terminated. CBG can no longer assert any legitimate right.or interest in information concerning the physical security system at the UCLA facility respecting which it now seeks unrestricted access. Section 2.790 establishes' administrative procedures applicable to the disclosure and withholding of final NRC.

It is not directly applicable to documents

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records and documents.

' disclosed subject to protective ~ orders duri .g adjudicatory proceedings.

Section -73.21 imposes certain affirmative duties' on licensees and others :

to protect " safeguards information'!. .CBG asserts?that under this

.section the Board has an affirmative-duty to remove information from the-

[ , protected category when the original justification vanishes. Whatevet

, the merits:of that argument, the original justification'for protecting '

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information related to the physical security ~ of the UCLA facility has not vanished.

CBG also wants an order preserving, until the reactor is finally dismantled and disposed of, all documents in UCLA's " security file" and all documents listed on " Attachment 1" to its Response which includes essentially all documents related to reactor operations.

Further, CBG wants an opportunity to copy all these documents "for .its records" before the documents are destroyed by the University.

Basically, what CBG is requesting is that its discovery rights continue even after the adjudicatory proceeding is dismissed. CBG can provide no justification for such an extraordinary extension'of the rules of discovery. The Stanislaus case is inapposite.

The last conditions proposed by CBG purportedly concern the parties' legal rights after the proceeding is dismissed. CBG requests

- that the Board's order specify that any rights that exist or accrue to CBG will . devolve upon CBG at any future address or upon .its designated successor. This condition. is unnecessary. University.is unaware'of any rights that could properly _ accrue.to CBG by . virtue of the Board's order dismissing this proceeding other than those that are already specified in the Commission's Rules of Practice. _. Finally, CB'G urges the Board to-

" follow the Bailly model" and order that the conditions to be imposed _be considered as an obligation assumed by~ University in consideration of

- the Board's accepting the withdrawal at this~ time. This' condition.isi

. likewise unnecessary. University's obligations as a licensee.with

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respect to any order wh'ich the Board may issue are defined in the Comission's Rules-of Practice and the case law.

IV. CONCLUSION For the reasons above, University respectfully requests that

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the Board reject the conditions proposed by CBG and instead grant University's request to withdraw its license renewal application on the

- conditions proposed by Staff only.

Dated: July 20, 1984.

DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK

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. WILLIAM H. CORMIER Representing UCLA

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0007 ry JJtme In the Matter of )

Docket No 0 142 THE REGENTS OF THE UNIVERSITY- (Proposed Renewa of#ar2Eli1 0F CALIFORNIA ) License Number R-71) ;y; g3 (UCLA~Research Reactor) ) Ob[h h gg CERTIFICATE OF SERVICE I hereby certify that copies of the attached: UNIVERSITY'S REPLY TO CBG'S RESPONSE TO UNIVERSITY'S REQUEST TO WITHDRAW THE APPLICATION.

is the above-captioned proceeding have been served on the following by deposit in the United States mai:, first class, postage prepaid, addressed as indicated, on this date: Ju:y 20, 1984 ,

John H. Frye, III, Chairman Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Comission Los Angeles, CA 90025 Washington, D.C. 20555 Mr. John H. Bay, Esq.

Dr. Emmeth A. Luebke Chickering & Gregory Administrative Judge Three Embarcadero Center ATOMIC SAFETY AND LICENSING BOARD Suite 2300 U.S. Nuclear Regulatory Comission San Francisco, CA 94111 Washington, D.C. 20555 Mr. Daniel-Hirsch Mr. Glenn 0. Bright Box 1186 Administrative Judge Ben Lomond, CA 95005 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Comission Nuclear Law Center Washington, D.C. 20555 c/o Dorothy Thompson 6300 Wilshire Blvd., #1200-Counsel for the NRC Staff Los Angeles, CA 90048 0FFICE OF THE EXECUTIVE LEGAL DIRECTOR U.S. Nuclear Regulatory Comission Ms. Lynn G. Naliboff Washington, D.C. 20555 Deputy City Attorney Attn: Ms. Colleen P. Woodhead City Hall-1685 Main Street Chief, Docketing and Service Section (3) Santa Monica, CA 90401 0FFtCE OF THE SECRETARY U.S. Nuclear Regulatory Comission ,

Washington, D.C. 20555 l WILLIAM H. CORMIER Representing UCLA  ;

THE REGENTS OF THE UNIVERSITY

. OF CALIFORNIA m