ML20096G879

Response to ASLB 840806 Order Re Other Parties Responses to UCLA Motion for Withdrawal of Renewal Application. Clarification of Ambiguities in Proposals Progressing.W/Svc List

ML20096G879
Person / Time
Site:	05000142
Issue date:	09/07/1984
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:
References
OL, NUDOCS 8409110199
Download: ML20096G879 (23)

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COMMITTEETOBRIDGETHECAP) September 7, 1984 1637 Butler Avenue, Suite 203 Ios Angeles, California 90025 (213)478-0829; e

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UNITED ' STATES OF AME'RICA NUCIRAR REGUIATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD @.9

- AR, In the Natter,of Docket No.'84 RP 10g Ali:D 50-142 THE REGEFFS OF THE UNIVERSITY OF CAiLIFORNIA m ... (Proposed Renewal of u

~' h eility License)'i4 Si W

'E (UCIA Research Reactor) -

RESPONSE b BO'XRD'OhDER OF Ath,UST 6 ihrt A)

_'I. Introduction s

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By Memo 2andum and Order of August 6.1984, the Board provided

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. the parties the opportunity [ tyres' pond to each others' previous re.sponses to'UCLA's : notion for witid' rival of its renewaf application and the 1various 10' CPR 2.107'Yonditions proposed thereto., The Board also noted

.... c that the Staff had asserted in'its July 2 initial response to the UCIA N

motion that Section 189 of the Atomic Energy Act does not provide' for hearings in voluntary li'ednse terminsIion proceedingst however the Board

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. indicatedIthat this anaertion appeared to be contradicted by the June 12, 1984, notice of proposed dction and offer of hearing to interested' persons

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.1 s with re spect to,tho' applicati on of' the Tuskegee Institute to dispose of l-the co apenent parts,of its research reactor and.to terminate its license.

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This .wtter was to be addressed as well. CBG's response follows (Part B,

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' dealing with protective order astters, is being filed separately by

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an atto::ney* subject to ths. ~ 4' g.

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_2 II. Background

, On June 14, 1984, UCM moved the Atomic Safety and Licensing Board to accept withdrawal of UCM's application for license renewal upon imposition of tieo conditions, as per 10 CFR 2.107: (1)thatthereactor never operate again, and (2) that it be dismantled, decontaminated, and disposed of pursuant to a Commission-approved plan. Simultaneously, UCM requested l suspension of the then-forthcoming security hearings, which the Board granted, ordering as well (after revising previous conditions) that the reactor fuel be removed fzo a the site "as soon as reasonably practicable" and that the the reactor be made functionally unable to operate. UCM announced it had permanently disabled the rector, and committed to " expeditiously" comply with the Board Order regarding prompt off-shipment of the highly enriched uranium.

Staff and CBG both responded to the motion for application withdrawal with certain proposed modifications of the conditions put forward by

( UCus the parties were then provided an opportunity to respond to each others' proposed con 11tions. 'Ihe Board has now provided an opportunity

. tirespond to the responses to the responses to UCM's motion.

Ob.iection to Portion of August 6 Order l

UCM is the moving party with regards application withdrawal l

and proposed conditions. 'Ihose conditions are solely for the protection l of the Intervenor, by applicable laws

< When considering a dismissal without prejudice,

!- the court should keep in mind the interests of

! the defendant, for it is his position which should I -he protected. . .

l.~ ImComte v. Mr. Chip (528 F. 2d 601. 604, 5th Cir. 1976) l lj See Shaefer letter of June 25: wegst letter of June 22.

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I he Perkins Board, citing LeCompte, makes clear that a dismissal that is without prejudice in any regard must have conditions attached by the Board "so as to protect intervenors and the public from legal harm."

and if conditions on a withdrawal without prejudice, in part or in total, cannot avoid legal harm, dismissal with prejudice must be ordered.

! Duke Power Company (perkins Nuclear Station, Units 1,2, and 3), LBP-82-81, 16NRC1128,1134-5(1982). Perkins similarly makes clear that the ,

Intervonor in an NRC proceeding is in the position of the defendant in a Federal case where the plaintiff requests voluntary dismissal, and that

Ike that situation, conditions are for the protection of the Intervenor.

Herefore, it seems quite inappropriate for the moving party to receive the last word-i.e., to be permitted to raise additional, new arguments in support of, or in revision to, its pending motion, particularly when it is the intervenor the canditions are to protect.

Berefore, CBG will request, should new ar-supplementary arguments be

. submitted 1qr UCIA, the moving party, or revisions made to the original motion, the right of last response.

Se Proposed Conditions in Brief i

UCIA, as discussed above, proposes the conditions hos (1) the

. reactor not operate again, and (2) it be dismantled and disposed of l

according to a Commission-approved plan. Two other conditions have already been established prompt off-shipment of HEU, an! permanent f

_ disabling of the reactor.

Staff proposes deferral of application withdrawal until completion of decommissioning, as well as the requirements to maintain the reactor, i: . in a non-operable condition and removal of the SNM as soon as reasocably practicable. . (Staff July 2 response, at 9.)

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CBG proposes that the conditions be mde explicit, that dates certain for initiation and completion of off-shipment and decommissioning be included, and that coriain document preservation and reporting requirements consonant with the case law for for withdrawals be included. Certain clean-up matters related to the protective orders are also identified.

'Ihe Case law in 9eief l

As discussad above, voluntary withdrawal is generally permitted, without prejudice if appropriate conditions are atinched for the protection of the Intervonor. Prejudice is defined in NRC practice as being foreclosed from applying for a different reactor at the same site.

Fulton (AIAB-657,14 ~ NRC 967, 973). '!his is essentially the standard '

proposed in UCIA's June 14 Motions persanent disabling ani decommissioning of this reactor, but not foreclosing the right to apply for a different l

reactor at the same site in the future.

Because many of the issues in contest in this proceeding (site -

suitability, managerial controls and Applicant competence issues, past record of regulatory non-compliance, and so on) could thus be re-litigated were UCIA to exercise the without prejudice right it requests as to a different reactor at the UCIA site, the case law requires conditions to protect the Intervonor if that occurs. One such condition aften imposed is document and discovery preservation. Pacific Cas and Electric Company.

Stanislaus Nt clear Project, Unit 1, CLI-82-5,15 NRC 404 (1982) LBP-83-2, 17NRC45(1983). Continued service of all material related to the facility in question is required the final disposition of the application is le6 ally effective. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), AIAB-179, 7 AEC 159,183. 'Ihis service must

. continue until the period for appeal of any final disposition of the

application has lapsed. Carolina Power & Light Co. (Shearon Harris Nuclear 2 Power Plant, Units 1,2,3, and 4) AIAB-184, 7 AEC 229, 237 (1974).

If conditions are ath ched to the withdrawal that must be accomplished. ,

i after the Withdrawal Order issues, Intervenors are provided right to reporting and inspection to assure compliance with the conditions until the conditions are finally accomplished. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), LB-82-29,15 NRC 762 (1982):

LBP-82-37, 15 NRC H39 (1982). Thus, until the withdrawal is legany effective, and through any appeal of the withdrawal matters, continued service on all J

matters related to the facility in question is required if conditions are attached that are to be completed thereafter, continued service, Nim t.ing, and inspection rights prevail.

In all cases where site restoration was necessary-whether the environmental effects to be corrected occurred by virtue of the in esiding Board or not-site restoration conditions were to be added by the Board (not Staff) presiding over the withdrawal request pursuant to the Board's 10 CPR 2.107 authority and responsibility to attach conditions to withdrawal requests. Nuclear Engineering Compa m. Inc. (Sheffield, Illinois Iow-level Radioactive 1 Taste Disposal Site), CLI-79-6, 9 NRC 673 (1979):

- Toledo Edison Company, et al (Davis-Besse Nuclear Power Station, Units 2 and 3),

AIAB-622,12NRC667(1980): LEP-81-33,14NRC586(1981): Bainy supra Public Service Company of Oklahoma, et al (Black Fox Station, Units 1 and

, 2),LEP-83-10. Note that Bainy and Sheffield were both renewals / extensions where the environmental effects to be corrected had occurred previously and haki-not been authorized by the presiding Board, which had yet to rule on the renewal requests, but which had both the power and the duty to impose site restoration conditions, pursuant to 2.107

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- - In no_ case, be it a renewal or otherwise, has the effective l

date of application withdrawal been deferred until completion of site

- restoration or any other conditions. In each case, withdrawal was immediately effective with conditions that were legally bi nding attached thereto. 'Ihis issue has been squarely addressed in the case law, where the concern that. the facility needed to have an active license or permit and thus a pending application was rejected, citing sufficient authority through 10 CFR 2.107 conditions to ensure compliance with all applicable

. requirements as the site is restored. Bailly, supra citing the procedure sanctioned by the Appeal. Board in Davis-Besse, also supra.

In no case were site restoration matters not included as withdrawal conditions, but left instead to the Staff or to license termination procedures spplicable for facilities with an active license and no pending

, renewal proceeding. In each case,, site restoration plans were approved by the Board after input from the parties, and included as 2.107 conditions.

Initiation and completion dates for conditions are routinely imposed in the withdrawal conditions. See Bailly and Black Fox.

Bailly explicitly addressed the fact that site restoration corditions without

' initiation and completion dates could lead to indefinite postponement of l

l compliance with the conditions, which would be,' the Board there ruled.

. unacceptable, and thus-imposed dates.

In all withdrawal cases, all existing permits and licenses are

. -immediately. terminated, whether granted in the proceedin6 at hand or whethe2'

- extant through timely application rule 2.109. Rochester Gas and Electric Corporation, et al (Sterling Power' Project, Nuclear Unit No.1), ALAB-596,

! 11NBC867(1980): Davis-Besse Bailly: Black Fox. Sterling was quite explicit p

" Surely, the applicants cannot improve their position--i.e. , insure the

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i retention of the permit--by having us terminate the proceeding...."

(emphasis added). Davis-Besse was likewise explicit, spelling out in the Withdrawal Order that the permits in effect due to 10 CFR 2.109 timely

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application rule were, automatically by operation of law, terminated

-(by 2.109 expiration, not any separate terminstion procedure) and could

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not ]p_ revived. his is very important in the instant proceeding.

In no case has a Board deferred the effective date of withdrawal.

In fact, Board's are directed not to retain on their dockets applications that ha've become academic, i.e., that the. applicants have abandoned.

Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1),

-ALAB-605,12NRC153(1980).

Iastly, dismissal without prejudice can be utde contingent upon

- psyment of attorneys' fees, costs, ard other disbursements of the Intervenor.

Perkins, supra. Such conditions for withdrawal without prejudice are not awards of costs for winning, generally prohibited by the American Rule, nor Intervenor funding by the NRC, but rather an established exception of conditioning withdrawal-without prejudice upon payment of costs. g.

So general rule is that voluntary withdrawal is permitted, upon payment

'of costs . Cone v. West Virginia Pulp & Paper Co. 67 S. Ct. 752; Jones v.

Securities and Exchange Commission. 56 S. Ct. 654. - Most voluntary dismissal cases in Federal practice have involved conditions that requh e payment of costs and attorney's fees. LeCompte, supra, at 603, and citations therein, he .NRC has established certain exceptions to the granting of fees and coe.ta as withdrawal coMitions, following the Federal practice -

therein, but none of these apply in the UCIA case. See discussion in CBG previous pleading, end the standard -(which CBG does fit) for granting of such a condition set by the Appeal Board in North Coast and in Perkins).

In short, the case law is consistent: withdrawals are effective

. immediately, with conditions of site redress to be carried out thereafter.

Dates certain are established, continued document preservation and reporting requirements are imposed, extant licenses and permits immediately terminated by the Board. Conditions are included as legally binding commitments, enforceable by th Commissionandthecourts(seeBailly.) his is all w e- -%-, -,-x---m.=-= e-m- --, - , - -- - - - ,-r.-mw--,-a,, -w.r--4,----,--ew---, ,m.---evr-. -,-.wyw-.r-~ec-, .e,y,-mwg n- ev,-- ---**----e-

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_S true whether the proceeding is an initial application, a renewal or extension request. Conditions to protect the Intervenor are to be imposed if such coniitions cannot make the Intervenor whole or remedy any loss ,

of substantive right, the withdrawal is not to be granted, at least not without prejudice.

III. The Staff Response Staff Confuses 10 CFR 50.82 License Termination Procedures for Facilities With Active License and No Pendim Renewal Proceeding with 10 CFR 2.107 and 2.109 Renewal Application Withdrawal Procedures If there were no Board, and no renewal proceeding on the docket, a decision to decommission a reactor would normally be conducted under 10 CFR 50.82 procedures. However, when there is a Board established to rule on a renewal application, ani the expired license is in effect only hr virtue of that renewal application pursuant to 10 CFR 2.109, 3- termination occurs automtically, by operation of law, upon acceptance of the withdrawal by the Board, ani therefore site restoration conditions must be approved and imposed by the Board as 10 CFR 2.107 conditions.

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The Bailly case-an extension proceeding whereby the existing, permit

[ ' was in effect solely by virtue of the pending application for which f - withdrawal was requested-is explicit on this point.

1 10 CFR 50.82 simply does not apply. It is for the Board to g .

! - determine decommissioning conditions to be attached to the withrirawal i.

Order, for that Order will, by operation of law pursuant to 10 CFR 2.109, i terminate the license. 10 CFR 50.82 has nothing to do with 10 CFR 2.107 L

withirawal requests where there is an active Board.

l 1he Staff's argument that withdrawal conditions are outside the Board's authority because they were not included in the notice of hearing i

issued when the request for renewal was filed by UCLA is particularly weak.

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9 De Board's s uthority is established by Part 2 of the NRC Regulations,

'which give to the presiding officer the authority to attach such conditions

- as are necessary for accepting withdrawal of any application. It is clear that a:Boani empowered to act on an application is also empowered to act on a request to withdraw that application, and to set such conditions are are necessary. 10 CPR 2.107. Rose coniitions, as discussed above, have

- consistently been site restoration requirements never have site restoration matters in an application withdrawal been restricted to a separate license i termination proceeding over which the Board did not have jurisdiction.

• Staff Errs in A==arting Cases Where Site Restoration Conditions Vere Matters of Board Authmity Were Only Where Board's Had Taken the Actions for Which Redress Was Needed first of all, Staff provides no authority whatsoever for its assertion e

that Boards do not have authority to impose site redress conditions if the environmental effects were not undertaken pursuant to their decisions.

Furthermore, Staff cannot cite a single case of a renewal or extension where site redress was not permitted as a condition on this base.

L Moreimportantly, Staff'ositstworenewal/extensioncaseswhere L site restoration matters were clearly within the jurisdiction of the Boards as they considered 2.107 withdrawal conditions. Bailly and Sheffield both were situation where the presiding Boards had not authorized any l permit or environmental effects both were permit extension or renewal

. Proceedings and in both cases site restoration was within the Board's authority. as was license termination because of 10 CFR 2.109 l

Staff thus has no authority whatsoever for its assertion that-

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license termination and site restoration natters are outside the Board's 2.107 responsibilities and . authority all the case law goes against Staff, 1

in fact.

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i Staff Errs in Its Discussion of Document Preservation and Continued Service Staff tries to make a distinction with the Appeal Board requirement in Vermont Yankee that service continue through the pendency of judicial review of any licensing board rulings by claiming no initial decision has issued. Se Board's final Order disposing of the withdrawal request will be appealable by CBG if conditions sufficient to protect CBG's

interests are not included (although generally not appealable by the

' Applicant, who can take or leave the Withdrawal Order by declining to accept withdrawal on those conditions.). Sus, until the Beard's Order is finally effective, and the period of judicial review thereof has lapsed.

- Vermont Yankee requires continued service. (Staff leaves out mention of H

Shearon Harris, which requires continued service of all material related tothefacilityinquestion). Furthermore, Bailly requires continued service after withdrawal until the conditions are finally met Stanislaus requires document preservation after withdrawal if the withdrawal is to be in any fashion without prejudice to another application.

In summary, Staff attempts to usurp Board authority to establish

-site redress conditions pursuant to 10 CFR 2.107, and confuses the overriding i

Board 2.107 authority and responsibility with the totally inapplicable 10 CFR 50.82, which applies only when there is an existing license and no renewal proceeding pending before a Board which the applicant wishes to withdraw. 10 CFR 2.107 and 2.109 are the operative regulations when an applicant wishe..to withdraw a renewal application, not 50.82

11-IV. '1HE UCIA RESPONS UCIA Likewise Confuses 50.82 Procedures for Situations Where here is No Pending Renewal Proceeding with 10 CFR 2.107 and 2.109 Procedures for Condition Withdrawals of Renewal Applications his matter has been addressed above. 10 CFR 50.82 does not apply in the instant situation. Where no Board exists, and no renewal application is thus pending before the Board, 50.82 procedures provide a means of terminating existing licenses upon completion of dismantlement, decontamination and disposal. Where a Board exists, and license ternination will be automatic by operation of law pursuant to 2.109, site redress conditions

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are to be approved by the Board and established as a 2.107 withdrawal condition.

4 Se dismantlement, decontamination, and disposal plan must go to the Board for approval, after input from the parties, and be imposed as a binding condition, enforceable by the PRC Commission and the courts.

UCIA Claims CBG Has No Right to Participate in the Termination Procedure-Se Termination Conditions are for the Protection of CBG and the Public.

Are Totally a Part of the Board's Jurisdiction to Determine Withdrawal Conditions and CBC is Fully a Party to hat Application Withdrawal Conside2a tion What is pending is a motion before this Board to accept withdrawal l of UCIA's renewal application, and thus temination of it's license via

,the timely application rule, as well as UCIA's proposal for 2.107 withdrawal conditions, including decommissioning according to a Commission-approved f plan. Se Board represents the Commission when it comes to site redress conditions for renewal application withdrawalg license termination is l automatic, via 10 CFR 2.109, as part of this withdrawal consideration.

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We can well understand UCIA's desire to have no scrutiny of its

' dismantlement plan by either CBG or this Board, and no binding commitments as to completion, but that is contrary to law and the requirements for acceptance of withdrawal of'such applications.

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_12 UCLA' Misrepresents Bailly-Site Restoration Conditions 'fere Not Imposed Only Where Work Had Been Conducted Under Limited Work Authorizations (INA)

. Granted in the Proceeding from Which Withdrawal is Reauested

. Unable to find a single authority to support the assertion that site restoration conditions cannot be imposed by the Board in this case, UCLA attempts to draw a non-existant distinction between the UCLA case and those where site redress was required. UCLA claims they all involved situations where the work to be redressed had been conducted under LWAs given by the Boards in question. UCIA goes so far as to claim that was the case in Bailly, which of course it was not. Bailly was solely a permit extension proceeding-i.e.' a renewal of the permit. No LWA had been granted by that Boards the Board had not reached the one issue that was in its jurisdiction, whether to exteni the expired permit-precisely the situation in this case, where the original. license had been granted separately, and this Board was to determLne whether to extend the expired license. In Bailly, as in UCLA, site redress as a 2.107 coniition of withdrawal was a Board responsility,

.as part of the withdztwal action.

Se same situation pertains in Shafield. W at was a license renewal proceedings no Board action had occurred, and before the Board could rule on the renewal application, the applicant requested to withdraw the applica. tion.

Site redress conditions were a matter of Board jurisdiction, with the parties L

able to litigate those matters in the withdrawal proceeding. Dere, as in Bailly and UCIA. the license wouLi terminate upon withirawal, so site restoration /stabilisationconditionsweretoberesolvedbytheBoard.

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L .(Note that the Commission inclusion of the show cause issue of whether St aff l had appropriately restrained the licensee from walking off the site prior to the Board accepting the withdrawal does not changes mattain at all; the decisions' sake clear that the Board had site redress jurisdiction indopendently.)

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- UCM Says It is Not Opposed to Condition #1. ht the' Reactor Remain Out of Operation his is as it should be, as UCM proposed this condition.

UCM any feel the condition it has proposed is unnecessary because it intends to comply with it anyway; CBC's interests will be daanged if the intention is not legally binding, which will cause UCM no inconvenience.

Since they do not oppose it, and since they proposed it, it should be incitded explicitly in the withdrawal Order.

UCM's Claim %at Off-Shipment of -the Fuel is Outside his Proceedim Is At Odds with the Boards June 22 Order here already is a condition that the fuel be off-shipped as soon as reasonably practicable. Sus any condition that makes that condition more explicit cannot be outside this proceeding.

UCIA Has the Burden of Demonstratim Why It cannot Comply with Off-shipment

- s_nd Decommissionim Dates and to Propose Alternative Dates-No reasons whatsoever have been given' to demonstrate why off-shipment cannot be accomplished by January 1. ht is six months from when the I

Board ordered it be removed "as soon as reasonably practicable."

• If there $s some real reason-not just stubbornness or some attachment to weapons-6rade asterials--a factual showing is required, with affidavits and supporting matetial and an oppvd,uulty to challenge them. CBG has no interest in unreasonable dates for completion bein6 required, and if UCLA can put forward dates for completion it can demonstrate are reasonable, there will be no problem. But that burden is on UCM, and dates certain are absolutely essential. Without dates certain, the conditions are meanin6 1 ess and indefinite renewal of portions of License R-71 would have been impermissibly granted by the act of withdrawal, in violation of. Sterlim, the. AEA 2n quirements for heazing and findings on applications m , ,

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-for renewals. UCIA stubbornly refuses to commit to any date whatsoever; tit is its burden to put forward a reasonable date if it has good cause for not being able to complete that obligation under the June 22 Order by next year. BUT WIMOUT COMPIETION DATES, EE CONDITION IS IARGELY MilANINGIESS. - BAIIJJ supports the necessity of completion dates on such conditions.

The argument that'it would be icprudent to include a date certain for security reasons is totally fraudulent--one isn't asking that the date of shipment be included in the Order, but rather that some reasonable deedline be included by which the fuel would have long since been gone, and the SSNM possession license lapse and that portion of the application be withdrawn for purposes of 2.109 firal determination. Figure out when the stuff will be out, consistent with "as soon as reasonably practicable",

add a margin of time to it, so that there is an expiration time on the ,

SSNM license and a final determination on the SSNM request in Ilcense R-71 renewal application.

It isn't that UCIA can't commit to removing the fuel by next year--it is that it won't. Set a reasonable completion date, or CBG is faced with indefinite license authority for weapons-grade material with totally unresolved security issues.

L UCIA Claims It Cannot Submit Its Decommissioning Plan by January 1-l-

But Has Already Submitted It

-On July 26, UCIA submitted its plans for dismantlement, decontamination and disposal. There are some problems with it, and these should be addressed by the Board before accepting withdrawal and determining that UCIA's condition

- #2, proper decommissioning application approved by the Commission, is

! appropriate and should be imposed as a binding condition. But the plan l is there in its essentials already..

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The one thing that is essential is that a completion date for-removal of the metallic m sponents (Phase 2 of the plan). UCIA should be required to make a factual showirs of what that coz:pletion date should be. Otherwise, .there is no legally MnMna commitment whatsoever, if there is no requirement that it be completed by any set time. Once aEmin, t

one can be quite reasonable about what the specific completion date should f

be, upon a factual showing and responses thereto (this is all something 1- that resonable parties ouc;ht to be able to work out themselves), but

without a Bailly-type completion date far at least Phases 1 & 2 of the dismantlement plan, UCLA's proposed condition #2 (submission of a decommissioning plan and compliance with its requirements) is meningless.

Please note also that the plan as submitted does not call for completion

- 'of " Phase 4" until many years in the future, with the option retained of

- not removing the contamination and never making the facility available for unrestricted use. For that re son, license possession must end with j completion of Phase 2, if not soonarr once the metallic components have been zemoved and the facility dismantled, it no longer needs a reactor liconse and can get by with a Part 40 by-product license.

Mr. Cormier claims that .the " imposition of conditions related to

-: University's decommissioning plans is unreasonable and unwarranted."

But Mr. Cornise himself propoemd that the withdrawal be conditioned on submission of an acceptable plan and compliance with its requirements.

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'lhe plan must be approved by the Board, as modified as necessary, and be a binding condition with binding dates for compliance.

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-1 6-UCM Creates s' Non-Existent Distinction With Stanislaus Regarding Document Eg: sap vntion Stanislaus requires, as a condition of withdrawal without prejudice, pc Ation of discovery and documents. 'Ihe prendse is long accepted in ,

dealing with voluntary withdrawals, that if the withdrawal is to be in any fashion without prejudice to an additional litigation, the opposing party should not suffer loss of documents because of the withdrawal.

UCM rightly indicates that Stanislaus was a withdrawal without prejudice. But UCLA wrongly implies that the UCLA withdrawal is with Irejudice.

UCM's motion for withdrawal clearly indicates it is' requesting withdrawal i without prejudice. It is true that UCIA says it has abandoned its plans

- for this Argonaut--and it is for this reason that that aspect of withdrava_1_

t that is with prejudice must be explicitly delineated in the Withdrawal Order.

- But UCLA requests that it retain the right to apply at a future time for another reactor at the UCLA site, and since such a large fraction of the contentions in this case, for which discovery was very extensive, deal with past compliance _ history, managerial competence issues,- Applicant qualification and site adequacy issues which would arise if UCM did exercise its requested right to apply for a non-Argonaut at UCIA, then all that discovery materials must be retained. UCLA cannot have it both ways ~eithe: the withdrawal is ,

with prejudice to and - application at the UCIA site, in which case Stanislaus

- would indeed not apply, or document preservation must be ordered because Stanislaus does apply, a portion of the case being without prejudice.

If documents are not preserved, and the application is in some measure withdrawn without prejudice, the question of- costs as a condition becomes much stronger, as it does if any of Staff's proposal of' deferral and license possession is granted.

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IX:LA's Rejecti on of the Bailly Requirement that Conditions be Legally Binding

.is Unexplained and Imgally Indefensible

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Without the conditions being legally binding, CBG suffers cognizable--

legal' harm from withdrawal. Whereas UCIA must obey NRC regulations, the conditions contemplated for the Board's withirawal order are specific matters not touched upon in the regulations. If they are to be imposed, the conditions must be le6 ally binding requirements, or they have no force.

V. AEA 189(a)

- Section 189a of the Atomic Energy Act Requires Hearing if Beauestod on Rose Decommissioning and Termination Matters Firstlof all, as discussed above, application withdrawal and site 4

redress matters as conditions thereto are part of the application proceeding currently at har, to which CBG is already a party. Bere is no separate' Proceeding-UCIA's license is in force because of the renewal application, it now wishes to withdraw that application, which would terminate 'the b license by operation of law, and it is up to this Board to determine what-site redress and other conditions are necessary if such withdrawal is to betCCepted.

. Secondly, even were there such a thing as a separate proceeding for these dismantlement issues-and there most emphatically is not- .

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the Atomic Energy Act still requires oppw'Adty for hearing. Section

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_ 289a-roads as follows in pertinent part In any proceedingsunder this Act, for the granting, suspending, revoking, or amending of any license or construction permit,

. or application to transfer control...the Commission shall grant

! a hearing upon the request of any person whose.interst may to i

- affected by the proceeding,-and shall admit any such person as a party to such proceeding.

i A latter part of Section 189a states that a hearing shall be mandatory,

(. whether there is a request for one or not, in any application for a construction permit. Staff may have merely meant by its statement that I-

l no hearing is required absent a reauest, as is the case in a CP proceedingy

-but a hearing is clearly required for any alteration of a license, including revocation,' amendment, and tranafer of control. Dismantlement, decontamination and disposal clearly fits within these categories.

Dismantlement,. Decontamination and Disposal Reauire License Amendments and Therefore Trister Right to Hearing -

In order to change the facility as described in the technical specifications, and to undertake dismantling and related decommissioning actions not authorized by the license, license amendments are required.

UCIA recognizes this, as it has already submitted two requests for license amendments to begin the decommissioning process. More will follow

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as the process sees along. he current proposed amendments to' the technical specifications, identifying certain preliminary decommissioning steps, are, like au such amendments, subject to right to hearing and party

-status as indicated in Section 189.

(Se issue. of whether hearing must occur before or can occur after grant of such amendments-i.e., whether the Shony amendments permitting no significant hazards considerations in the timing of hearings-is tangential.

First of all, even were the Commission authorized under the Sholly amendment I-t'o employ no significant hazards considerations in research reactor amendments, there would still have to be a hearing.. All Shon y amendments did was affect whether the amendments could go into effect before the hearing was completed. Secondly, in promulgating the Sholly amendments, the Congress required the NRC to come up with standards for no significant hazards determinations within a set period. We Commission did for power reactors, but put off coming up with such standards for research reactors. 'herefore, the Stolly amendments do not apply to research reactors, ani the Sholly decision does, requiring a hearing whether there is a significant hazari

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consideration or not. Lastly, dismantlement of the facility, its decontamination and disposal clearly have significant hazards considerations anyways importantly, UCLA has not' applied for significant hazards consideration for any of the preliminary decommissioning amendments it has already proposed.

(See 48 FR 14864 for Commission decision not to bring research reactors into the Shollly amendment no significant hasards consideration option.)

Transferring contzol of the HEU to DOE, which UCIA claims is part of its decommissioning plan, is clearly "appli' cation to transfer control"

- as included in 189a hearing oppmt,imity rights, as is disposal of the contaminated component parts by transfer to an authorized recipient.

Rose too are within 189a. Additionally, as discussed below, a construction permit is requisd for the dismantlement, and cps are included within 189n.

' Material Alteration of a Licensed Facility Recuires Issuance of a Construction Permit--10 CFR 30 92(a)

UCLA's current license does not authorize it to remove component parts or disable safety systems, except for certain testing modes. To do e so requires amendment of its technial specifications, extensive preliminary amendments are already proposed.

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. UCIA's decommissioning actions involve the mtarial alteration of i

the licensed facility. 10 CFR 50.92(a) requires, in addition to license l

amendments, a construction permit for such material alterations.

! So.92(b) says further, "no Commission will be particularly sensitive to .

a license amendmant request that involves irreversible consequences..."

l Dr. Wegsts' proposed amendments specifically indicate that some of the changes identified are irreversible.

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Even Were One' to Accent for the Sake of Argument that 50.82 Decommissioning j and Licaamine Termination AVVlications do Not Have a Reauirement for i Hearing Unon 'tenuest--Which is Very Mlach in Error-the Board Still Has l Authority to iodify any Staff Order Issued 'thron Pursuant to 10 CFR2.717(b) l l

10 CFR 2.717(b) gives' the Board the authority to modify any Order issued by Staff related to the facility in question. This has been interpreted to include Orders on other matters than that directly included in the notice of hearing, so long as there is a cognizable relationshLp (i.e., a Board has the authority to alter an Order by Staff approving a request for a Part 70 materials license even if the Board were only convened to rule on a separate Part 50 license. Cincinnati Cas and Electric Co.

, - (William H. Zimmer Nuclear Statiopn) LBP-29-24,10 NRC 226, 7.28 (1979) hus even were one to accept the wildly erroneous argument that this Board pursuant to 10 CFR 2.107 and 2.109 does not have the authority to deal with site redress. conditions of withdrawal and license termination, it still has the authority to modify any Order the Staff might issue on those matters pursuant to 2.717(b) and the Z_imag, case.

Even Vere On to Accent for the Sake of Argument that 50.82 Apolies--and .

it doesn't-50.82 itself Mandates Requirement for Hearing l

i 10CFR50.'82(b)thatnoticetointerestedpersons.beprovided regarding the proposed dismantling actions. Clearly the Commission did not intend its requirement to mean that no action on the decommissioning '

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l~ . request can be taken prior to notice to interested persons, but denying those interested persons right to do anything once they have been given notice. Notice has always been. notice of right to hearing and intervention.

l Sat the notice requirement is a requirement of notice of right to I hepring is clear from the past notices that have been routinely given of 50.82 applications. Se Board correctly noted the contradiction in

. the Tuskegee case between Commisalon action there and Staff position here ,

that no hearing is permissible. But a review of the Federal Register

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indicates that notice of right to hearing and intervention in proposed 50.82 license termination and decommissioningcases is NRC practice, and.that notice as used in 50.82 is notice of right to hearings

• North Carolina State University, M FR 20338-93' 46 FR 31394-5:  ;

'48 FR 28372-3

• Stanford University, 43 FR 3634: 48 FR 30227-8

• California Polytechnic State University, M FR 33148, 46 FR 50632

• Babcock & Wilcox, M FR 53821-2

• Cregon State University, 43 FR 52305, 44 FR 16508-9, M FR 57208 In each case, plus Tuskegee, notice as requiredIby 50.82 was detailed notice of right to request hearing and to intervene.

It is clear that 50.82 itself provides right to hearing and to 4

-intervention.

Even were one to accept the argument that this is all discretionary-ani there is no basis whatsoever for that, given the AEA and 50.82 itself ani 2.105 and 50 92-it is clear that the commission would be guilty of

. abusing its discretion by arbitrary and capricious action were it to offer opportunity for hearing in the above six research reactor decommissionings, where it was not aware of conkvin-i or public interest, and deny it in the UCIA case. In particular, if the Commission offered a hearing in the Tuskegee case, where the reactor had never operated and therefore l there was no contamination whatsoever to deal with, no fission products or activation products to decontaminate and dispose of, it would be arbitrary and capricious to the extreme to deny the same right in a case i of a facility that had operated for 24 years.

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_,- ,.- . . _ ~ . - . _ _ _ _ , , _ _ _ . . . . _ _ . _ . _ _ . _ . ~ . . . _ _ _ _ . . ,.________;_______,

e Y. CONCLUSION

'CBG respectfully requests the Board carefully consider the matters identified in this pleading and in the previous two dealing with UCLA's -

request to withdrew its application upon certain conditions.

'Ihe Board should be aware, at the same time, that CBG has undertaken to resolve amicably with Staff ani UCIA remaining disputes so as to remove the potential for extending this already lengtlylitigation. All parties agree that th'e application be withdrawn, facility decommissioned and IGU remved off-site, and license terminated. Some of the proposals for doing that have ambiguities that have created difficulties. Staff has clarified

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' for CBG its intention with regards some of those ambiguities in its proposal,~

which may go a long way to resolving the principal remaining stumbling blocks to final resolution. CBG will be reporting to the Board shortly on progress in this roeptrd.

In the meantime,' CBG respect" fully requests, should amicable resolution i

not turn out possible,. to fini the law and the facts as proposed by CBG so that explicit, binding conditions are established for the withdrawal that adequately protect CBG and the public.

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Respectfully subnttted, g'g'l AJl -

President Committee to Bridge the Gap i'

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dated this 7th day of . September,1984, I

at Ben Iomond, California l

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v-f' UNITED STA'IES OF AERICA NUCIEAR REGULATORY COMMISSION BEFORE 'DGE ATOMIC SAETY AND LICENSING BOARD

-I_hereby declare that copies of the attached CBG Response to Board Order of August 6 in the UCIA proceeding have been served on the following by deposit ,

intheU.S. mail,firstclass,postageprepaid,addressedasindicated,9/7/84:

' Judges Frye, Bright,' and Luebke' ASLB

.USNRC Washington, D.C. 20555 Chief, Docketing

- USNRC -

-Washington, DC 20555 Colleen P. Woodhead US 1mc Washington DC 20555-William H. Cormier Office of Administrative Vice

' Chancellor University of California 405 F"s=M Ios Angeles, CA 90024 Grristine Helwick

.Glenn Woods Office of General Counsel S90 University Hall 2200' University Avenue Berkeley, CA 94720

! Irnn Naliboff City Hall 1685 min St. -

r}

Santa M,nion, CA 90401 ,

$. &h /  % -

, Daniel Hirsch L

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