ML20069D344

Brief Supporting Appeal from ASLB 830222 Memorandum & Order. ASLB Erred in Concluding Petitioner Failed to Show Dilatory Conduct by Util & Was Not Entitled to Hearing on CP Extension.Certificate of Svc Encl

ML20069D344
Person / Time
Site:	Columbia
Issue date:	03/10/1983
From:	Bell N NORTHWEST ENVIRONMENTAL ADVOCATES (FORMERLY COALITION
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20069D281	List: ML20069D276 ML20069D344
References
ISSUANCES-CPA, NUDOCS 8303180344
Download: ML20069D344 (5)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, N BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD N 17 g7,.g In the Matter of ) .

WASHINGTON PUBLIC POWER SUPPLY SYSTEM, ) DocketNo.50-397CPAk

_et. _al. )

)

(WPPSS Nuclear Project No. 2) )

BRIEF IN SUPPORT OF APPEAL FROM MEMORANDUM AND .

ORDER OF ATOMIC SAFETY AND LICENSING BOARD, DATED FEBRUARY 22, 1983'

1. Petitioner assumed that if the Comission had intended in its Order, CLI-89-29, 16 NRC , October 8, 1982, that the word " dilatory" would be applied only in the sense of " intentional" that the Comission would have used the word " intentional" rather than " dilatory". This gave rise to Petitioner's pbsition that its use of the word " dilatory" encompassed a range of behaviors from

" tending to cause delay" to " intending to cause dalay". Transcript of Pre-hearing Conference in the Matter of WPPSS Nuclear Plants 1,&

2, Docket Nos,. 50-397 CPA, 50-460 CPA and 50-460 OL at 50. Petitioner sought as well to define a middle ground most applicable the construction of WPPSS Nuclear Project No. 2:

MR. ROSOLIE: [T]he intent would not necessarily have to be of itself intentional. That they sat down and basically said, "Well, this is what we're going to do to delay the plant." It could be that their actions, the actions that they took or did not take -- resulted

,in a delay, resulted in a continuing delay.

TR at 50. And again: .

MS. BELL: We do believe that WPPSS, regarding WPPSS 2, has repeatedly failed to improve its management procedures which would remedy their tendency towards proceeding -

in a dilatorj fashion. TR at 51.

MS. BELL: Our reading of what is intentional could be the cin (sic) of comission or the sin of ommission, and in this case what we're saying regarding WPPSS No.

2 is that there was not a sin of commission but a sin of ommission in that WPPSS knew that their management j was causing delay and did nothing about it. '

8303180344 830310 PDR ADOCK 05000397 C PDR '

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t TR at 58. The Permittee sumarized Petitioner's position:

t MR. REYNOLDS

but it seemed to me that she was saying that it was aPerh lower threshold than intentional, that dilatory somehow means " indirectly causing without intent."

TR at 55.

2. The' Licensing Board came to the same conclusion:

We understand the Commission to have used the term " dilatory" in a middle sense, as it is commonly used to describe

• litigation tactics, as intending to cause'deby or being indifferent to the delay that might be caused.

the instructions of the Comission as requiring CSP toWe interpret particularize and support an allegatien that Permittee either intended t'o delay, or took actions resultirG in delap because it was indifferent to delay.

Memorandum and Order at 6. ' '

.3.

The, Licensing Board found improperly that Petitiener

): f had not met the second test by failing to particularize and ' support its contention that the Permittee was indifferent to delays caused j by its actions.

Memorandum and Order at 6.

4. Petitioner's Supplement to Request for Hearing and Petition i

for Leave to Intervene dated January 10, 1983 establishes j

factual support for its allegation that WPPSS management was indifferent

• m' to the delays caused by its actions and inactions. It cites the .

i Washington State Senate Energy and Utilities Committee ",WPPSS Inquiry",

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a' report to the Washing, ton State Senate and the 47th Legislature,  ;.

tiarch ;i, 1981':

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( "The Committee identified a ' number of areas of.' management failure, each of'which significantly constreuted to the cost.,and schedule problems on the projects...The . . ,

cumulative impact of these deficienc'ies leads the Comittee to conclude WPPSS mismanaaement has been the most.sfgnificant }l:

' cause of cost overruns and schedule delays on the WPP55 1 projects.'(emphasis added) WPP55 InquirlyJ supra. Executive Summary.

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Specifically, lacking to show: the Committee* concluded that evidence was 5 ee5(([4

"that the officially adopted completion dates for the plants are used by WPPSS management to monitor or control the progress of work at the plant site." Supra p. 22 However, the report quotes a Mr. McElwee of WPPSS management:

"We have never claimed and we do not claim that low productivity is the fault of labor. Low productivity is generally our fault, management. Either the material is not available when and where it should be or the engineering is not available when and where it should be, or the equipment or we've gotten interferences or our planning is incomplete or what have you." Supra, p. 45-46. ~

"WPPSS does not have nor has it ever had, an effective change management system. The failure of WPPSS management to institute such a system is a direct and principle cause of project schedule delays." Supra, p. 38. l l

" Changes directed by the Nuclear Regulatory Commission were found to be significant but not necessarily controlling and never more important than the lack of timely engineering and procurement."(emphasis added) 5-1 Report, p. 2-6.

The C0mmittee also concluded that this matter had been brought to the attention of WPPSS management numerous times to no apparent avail. Supra, p. 39.

The Committee concluded that WPPSS management directly affected the procurement of materials:

" Integrated management [ adopted by WPPSS at all sites by 1979] affected all aspects of project adminstration and construction. It slowed procurement and design, interferred with material and engineering support of construction, contributed to unnecessary rework, added to access and interfered with problems on the job site, and confused inspection."

5. These findings paint a picture of continuing delays for which WPPSS management was both responsible and aware. The Licensing Board concludes that Petitioner did particularize and support the ,

allegation that the Permittee was responsible for the delays in construc-tion. Memorandum and Order at 4. The manner in which Petitioner did so was to show th' ta it was WPPSS management, not labor, NRC regulations and other externalities that caused the delays. Petitioner went on to show that while management was aware of scheduling delays that actions were never taken to remedy the problems. Since the primary

role of management is to ensura completion of a job in a timely manner failure to effect a change on the construction schedule of WPPSS No. 2 can only be attributed to indifference on the part of management.

6. The. Licensing Doard states that Petitioner was required to " particularize and support an allegation that Permittee either intended to delay, or took actions resulting in delay because it '

was indifferent to delay." Petitioner has done the latter. As stated in paragraph 4 above, WPPSS management failed to act to:

1) institute an effective change management system;

2) utilize official completition dates to monitor and control progress of construction work;

3) improve productivity by ensuring that material, engineering and equipment were available; and

4) improve construction planning.

Furthermore, WPPSS management adopted " integrated management" at the site in 1978 which slowed construction. Petitioner thus showed that WPPSS management was indifferent to delay.

7. For the foregoing reasons the Licensing Board erred in concluding that the Petitioner failed to show dilatory conduct on the part of the Permittee and was thus not entitled to a hearing on the request for an extention to the construction permit for WPPSS Nuclear Project No. 2. '

Respectfully submitted.

Dated this day the tenth ( wER Nina Bell of March, 1983. Coalition for Safe Power

UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fEISSION T~

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 83 y ;7 p,, 03 In the Matterof )

WASHINGTON PUBLIC POWER SUPPLY SYSTEM Docket No. 50-397f0Pk N IWPPSbkuclearProjectNo.2) f CERTIFICATE OF SERVICE ,. J

' ' I h'ereby certify that copies of " NOTICE OF APPEAL FROM MEMORANDUM AND ORDER OF ATONIC SAFETY AND LICENSING BOARD, DATED BEBRUARY 22, 1983" and "BRIEFGIN SUPPORT OF APPEAL" in the above captioned proeceeding have bec.' served on the fo1&owing by deposit in the U.S. Mail, first class po; . age prepadd on this 10th day of March,1983.

Herbert GRossman, Chairman WNicholas S. Reynolds ASLB Debevoise & Lieberman USNRC 1200 Seventeenth St. N.W.

Viashin6t on, D.C. 20555 Suite 700 Washington, D.C. 20036 Glen O. Bright Administrative Judge ASLAB Panel ASLB USNRC USNRC Washington, D.C. 20555 v.ashington, d.c. 20555 State of Washington D r. Jerry Harbour Energy Facility Site Evaluation administrative. Judge Counc 11 ASLB Mail Stop PY-11 USNRC Olympia, Via , 98504 7!ashington, D.C. 20555 l Docketing and Service Section i USNRC Viashin6 ton, D.C. 20555 William Paton i

Counsel for NRC Staff I U.S.N.R.C.

Gerald C. Sorensen Washington D.C. 20555 f.ianager, Licens ing Program 7!PPSS 300 George Viashington Way Richland, Wa, 99352 ..

144.( h y l Nina Bell l Intervenor for CFSF l

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