ML20072H298

Brief in Opposition to Coalition for Safe Power Appeal from ASLB 830222 Memorandum & Order Dismissing 820223 Petition to Intervene.Petitioner Failed to Particularize & Support Contentions.Certificate of Svc Encl

ML20072H298
Person / Time
Site:	Columbia
Issue date:	03/25/1983
From:	Reynolds N DEBEVOISE & LIBERMAN, WASHINGTON PUBLIC POWER SUPPLY SYSTEM
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-CPA, NUDOCS 8303290382
Download: ML20072H298 (25)

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BOARD,-DATED FEBRUARE 2 2 ,., 1 9 8 31 -

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Nicholas S.-Reynolds Sanfo'rdLL..Hartmani ~ .- m-  ;,.

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DEBEVOISE & LIBERMAN-1200; Seventeenth Street, U.4 W. _

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' March 25, 1983

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UNITED STATES OF AMERICA NUCLEAR REGULATORY'CO12ilSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD-

. In the Matter of )

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WASHINGTON PUBLIC POWER )

SUPPLY SYSTEM ) Docket No. 50-397-CPA

)

(WPPSS Nuclear. Project No. 2) )

LICENSEE'S BRIEF IN OPPOSITION TO APPEAL FROM MEMORANDUM AND ORDER OF ' ATOMIC SAFETY AND LICENSING .

BOARD, DATED FEBRUARY 22, 1933

. Nicholas S. Reynolds Sanford L. Hartman DEBEVOISE & LIBERMAN 1200' Seventeenth Street, N. W.

Washington, D. C. 20036 (202) 857-9817 Counsel for Licensee March 25, 1983 -

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LTABLE OF CONTENTS TABLE OF CASES . . . . . . . . . . . . . . . i I. INTRODUCTION AND~ BACKGROUND . . . .. . . . 1 II.

SUMMARY

OF THE ARGUMENT . . . . . . . . . . 4 III. ARGUMENT . . . . . . . . . . . . . . . . . . 5 A. The Licensing Board Erred in

. Concluding that Petitioner Could Allege that Licensee Was Indifferent to Construction Delays at WNP-2 in Order to Establish a Litigable Contention in this Proceeding . . . . . . . . . . . 5 B. Assuming Arguendo that the Licensing Board Applied the Correct Standard, It Properly Held that Petitioner Failed I

to Set Forth a Litigable Contention . . . . . . . . . . . . . . . 11 l

l' l. General Legal Principles --

Basis & Specificity . . . . . . . . 11

2. Evaluation of Standard . . . . . . . 14 IV. CONCLUSIONS . . . . . . . . . . . . . . . . 17 I

l

'1 4

I TABLE OF CITATIONS CASES Page BPI v'. Atomic Energy Act, 502 F.2d _

l ,

424 (D. C. Cir. 1974) . . . . . . . . . . . . 12 Camper v. Calumet Petrochemials, Inc.

,, 584 F.2d 70 (5th Cir. 1978) . . . . . . . . . 10 r

AEC AND NRC ADJUDICATIONS

, Cincinnati Gas & Electric Co.

l (William H. Zimmer Nuclear Power Station) , ALAB-305, 3 NRC 8 (1976) . . . . . . . . . . . . . . . . . 14 Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2)-

ALAB-469, 7 NRC 470 (1978) . . . . . . . . . . 14 Duke Power Company-(William B.

McGuire Nuclear Station, Units 1 and 2), ALAB-669 15 NRC 453 (1982) . . . . . . . . . . . . . . 7 Kansas Gas & Electric Co.

(Wolf Creek Generating Station, Unit No. 1) ALAB-279, 1 NRC 559 (1975) . . . . . . . . . . . . . . . . . . 13, 14

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Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746 (1978) . . . . . . . . . . . . . . . . . . . . 14 l_ Niagra Mohawk Power Corp. (Nine Mile i

Point Nuclear Station, Unit 2),

ALAB-264, 1 NRC 347 (1975) . . . . . . . . . 10

Philadelphia Electric Company, (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974) '

. . . . . . . . . . 12, 13 Public Service Electric & Gas Company (Salem. Nuclear Generating Station, Units 1 and 2), ALAB-136 6 AEC 487 (1973) . . . . . . . . . . . . . . . 14 ..

Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 and 2),

CLI-82-29,-16 NRC , October 8, 1982, ,

slip opinion . . . . . . . . . . . . . . . . . . 3, 4, 5, 6, 8, Washington Public PowGr Supply System

, (WPPSS Nuclear Project No. :21, ASLBP Docket No. 83-480-01 CPA, February 22, 1983, slip opinion . . . . . . . 4, 6, 7, 10 FEDERAL REGISTER 43 Fed. Reg. 17798 (1978) . . . . . . . . . . . . . . 11 I

47 Fed. Reg. 4780 (1982) . . . . . . . . . . . . . 2 l

REGULATIONS 10 C.F.R. $2.714 . . . . . . . . . . . . . . . . . 3, 12, 14 10 C.F.R. {2.714(b) . . . . . . . , . . . . . . . . 11 10 C.F.R. $2.721 . . . . . . . . . . . . . . . . . 7 L 10 C.F.R. 2.732 . . . . . . . . . . . . . . . . . 13 10 C.F.R. Part 2, Subpart G . . . . . . . . . . . . 3 10 C.F.R. Part 50 . . . . . . . . . . . . . . . . 3 l

10 C.7.R. $51.5(d)(6) . . . . . . . . . . . . . . . 2

- lii -

. MISCELLANEOUS 7 LACK'S LAW DICTIONARY (4th ed. 1968) . . . . . . . 6 WEBSTER'S NEW WORLD DICTIONARY OF THE-AMERICAN LANGUAGE (College Edition 1966). . .- . . . . . . . .. . . . . . . . . .8 W .A 4

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-BEFORE THE ATOMIC SAFETY i AND LICENSING APPEAL BOARD

, In the Matter of )

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! ., WASHINGTON PUBLIC POWER -).

SUPPLY SYSTEM )' Docket No. 50-397-CPA

)

! (WPPSS Nuclear Project No. 2) )

i LICENSEE'S BRIEF IN OPPOSITION TO APPEAL FROM MEMORANDUM AND ORDER OF ATOMIC SAFETY AND LICENSING BOARD, DATED FEBRUARY 22, 1983 4

I. INTRODUCTION AND BACKGROUND ,

i

- The Washington-Public Power Supply System

(" Licensee") is the holder of construction permit CPPR-93 which authorizes the construction of Licensee's Nuclear

. Project No. 2 ("WNP-2"). The project is approximately 95%

complete. On September 4, 1981, Licensee requested'an ex-l tension of the construction permit completion date until u

! February 1, 1934. The completion date then incorporated in its construction permit was December 1, 1981. On Feb-ruary 2, 1982, an Order was published in the Federal

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Register granting the requested construction permit exten-sion. The Order stated that the extension involved no significant hazards consideration so that the construction permit amendment authorizing such extension could be '

issued without prior notice, that good cause was shown for

the construction delays, that the requested extension was for a reasonable period of time, that the licensing. action would not result in.any significant environmental impact,

, and that pursuant-to 10 C.F.R. 551.5(d)(6) no environ-mental impact statement,-negative declaration, or environ- _

y mental impact appraisal was' required to be prepared.1 On February 23, 1982, the Coalition for Safe Power

(

l (" petitioner") filed with the Commission a request for i

hearing and petition to intervene. It purported to raise a number of contentions, which both the Licensee and NRC Staff (" Staff") argued fell outside of the scope of issues litigable in a construction permit extension proceeding.

The Commission in large measure agreed that these ,

l proposed contentions were impermissible. However, with respect to one proposed contention, it found-that "[t]o

! the extent [ petitioner] is seeking to show that [ Licensee]

l was both responsible for the delays and that the delays were dilatory and thus without ' good cause'," then petitioner's claim that delays in construction have been

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l 1 47 Fed. Reg. 4780 (1982).

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4 under'the full control of Licensee's management, if properly particularized and supported, would be liti-gable.2

, subsequently, a Licensing Board was convened to de-termine whether petitioner satisfied the other hearing _  ;

requirements of 10 C.F.R. {2.714; to determine whether this single proposed contention was " properly particu- ,

larized and supported" and, therefore, litigable; and, if

, c I so, to conduct an appropriate proceeding under 10 C.F.R. *y s Part.2, Subpart G and 10 C.F.R. Part 50.3 Following a prehearing conference, the Board issued its February 22, 1983, Memorandum and order disraissing petitioner's request for a hearing and denying its petition td intervene on the >

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.  % V J Washington Public Power Supply S stem'(WPPSS Nuclear ~Froject ~

Nos. 1 & 2), CLI-82-29, 16 NRC ~, October 8, 1992, slip op.

at 16 (CLI-82-29). This proposed conten' tion was also raised by petitioner in its request for hedring and petition to.'C se intervene filed with the Commission in connection with the construction permit extension sought by Licensee for its Nuclear Project No. 1 ("WNP-1"). As a result of a request by

• Licensee for an additional extension of the _ construction completion dates for WNP-1, the Board in that proceeding has not yet ruled on the admissibility of this and another --

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proposed contention. , ,

3 Id. at 16-17.

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grounds that petitioner. failed to provide'a basis for its -l proposed contention.4 It is from this order that. peti-tiener has appealed.

, II.

SUMMARY

OF THE ARGUMENT Licensee will address two issues in its brief, viz., j (1) did the Licensing Board correctly apply the teaching i

of CLI-82-29, supra, when it held that " dilatory" could mean " indifferent" to delay as well as " intending to cause

- \ delay" and (2) did the Licensing Board properly find that

. e y petitioner failed to establish an adequate and specific

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basis for its proposed contention that delays in the con-UC NN

> s w struction of WNP-2 were dilatory. As to the first issue,

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, Licensee submits that the Licensing Board impermissibly

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de'viated'from CLI-82-29 by concluding that dilatory con-

[ duce.could encompass conduct evidencing an " indifference l 1

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I , to, delay" as well as conduct intending to cause.a delay, and that the Board erred in evaluating the proposed con-l l tention against- this standard. The Licensing Board should have evaluated the proposed contention to ascertain only i

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4 \ Washington Public Power Supply System (WPPSS Nuclear Project CI ITo . 2 ) , ASLBP Docket No. 83-480-01 CPA, February 22, 1983, slip opinion ("WNP-2"). That proposed contention, which had

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been revised by petitioner to conform with CLI-82-29, alleged

^ that " delays in the construction of [WNP-23 have been under the full control of WPPSS management. The Applicant was l'

responsible for the delays and the delays were dilatory and thus Applicant has not shown the ' good cause' as required by

'N 10 C.F.R. 50.55(b)." Coalition for Safe Power Supplement to

' Request for Hearing and Petition for Leave to Intervene, Jan.

10,.1983 at 1.

l 8

I

r whether petitioner provided a basis for the claim that Licensee intentionally delayed the construction of WNP-2.

Because petitioner specifically declined to pursue such allegation, its proposed contention should have been dis-missed for that reason. As to the second issue, Licensee submits, assuming arguendo that the Licensing Board pro-perly construed CLI-82-29, supra, that the Board correctly found that petitioner did not set forth adequate basis in support of its allegation that Licensee was indifferent to delays in the construction of WNP-2. In either event, the February 22, 1983, Memorandum and Order of the Licensing Board dismissing the petition and denying petitioner's hearing request should be affirmed.

III. ARGUMENT A. The Licensing Board Erred in Concluding That Petitioner Could Allege That

Licensee was Indifferent to Construction

, Delays at WNP-2 In Order to Establish a Litigable Contention in this Proceeding The Commission in CLI-82-29 established a two-part test by which to assess whether petitioner set forth a

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litigable contention in this proceeding. The first ele-ment of the test concerns whether petitioner alleged with specificity and basis that Licensee was responsible for the construction delays necessitating extension of the construction completion dates. The second element of the test is whether petitioner alleged with specificity and

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basis that such delays were dilatory.5 When addressing this second element, the Licensing Board ruled that

" dilatory" delays could encompass delays to which Licensee was indifferent in addition to delays . intended by Licensee. As set forth below, this interpretation of

" dilatory" is inconsistent with the teaching of CLI-82-29.

The word dilatory means "[t3ending or intended to cause delay or to gain time or to put off a decision."6 As the Licensing Board correctly recognized, the Commis-I sion could not have meant to use such term in the broadest possible sense (" tending to cause delay"):

, If the Commission had intended to use dilatory in its broadest sense, it would not have established a 2-part test, because if [ Licensee] were responsible for the delays, its ac-tions would a fortiori be dilatory in its broadest sense since one's acts cannot have caused delay without having tended to cause delay.7 However, rather than concluding that the Commission meant for the balance of the definition to apply

(" intended to cause delay or to gain time or to put off a

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decision"), the Licensing Board held that dilatory conduct could be demonstrated by showing that Licensee intended to o

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[

i 5 CLI-82-29, supra, October 8, 1982, slip op. at 16.

6 BLACK'S LAW DICTIONARY, 554, (4th ed. 1968) (definition of

" dilatory").

7 WNP-2, supra, February 22, 1983, slip op. at 6.

cause delay or was " indifferent" to delay.8 The Board thus evaluated the specificity and basis of petitioner's proposed contention in light of this standard.

, Licensee submits that the Licensing Board erred by engrafting a standard of " indifference to delay" onto the

, concept of " dilatory" conduct. The Commission itself established the standard of " dilatory" conduct and the Licensing Board could not deviate from it. Yet, that is precisely what the Licensing Board did. As it stated,

"[w]hile the Commission may have intended to equate

' dilatory' with intentional delay, we could not justify such a narrow interpretation given the dictionary meaning."9 However, the issue is not whether the Licens-ing Board could justify this " narrow" interpret'ation of l the term dilatory. Rather, it is that the Commission mandated that such an interpretation be used in evaluating the adequacy of petitioner's proposed contention. In light of the definition of dilatory, the Commission clearly intended the " narrow" definition of dilatory to

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apply (as the Board recognized in the quoted text above).

a It was error for the Board to broaden the clear intent of f

the Commission.10 8 Id.

9 M . at 5.

10 See 10 C.F.R. 52.721; Duke Power Co. (McGuire Nuclear 4

(footnote continued)

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Moreover, the Licensing Board could not have, 1

consistent with CLI-82-29, construed dilatory conduct to encompass indifference towards delay. Dilatory conduct even in-its broadest sense connotes an-inclination or ten-dency, if not an overt intention, to delay or'put off a-

• particular action. Indifference,towards delay in contrast 1 . suggests. conduct which is taken in the absence of any re,a,1 feelings one way or the other as to whether an action will j be delayed or put off. " Indifferent".is defined, as follows:

1. having or showing no partiality,

! bias, or preference; neutral.

! 2. having or showing no interest, concern or feeling; uninterested; apathetic. 3. Of no consequence or importance; immaterial. .

11 Importantly, the Licensing Board provided no reason or support for its conclusion that dilatory conduct could encompass indifference to delay, a conclusion which on its L face stretches the term dilatory far beyond its meaning.

l One last point should be noted. The standard created by-the Licensing Board as practical matter is nearly impossible to meet. Given the definition set forth above, 8 it is difficult to imagine a situation in which a l

l l

(footnote continued from previous page)

Station, Units 1 and 2), ALAB-669, 15 NRC 453, 465 (1982)

(" directives of superior tribunals must be given effect whether or not the subordinate tribunal agrees with.them").

11 WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE (College Edition 1966) at 742 (definition of " indifferent") .

L -

construction permit holder would be or even could be

" indifferent" to scheduling delays (as alleged for petitioner in this case) when constructing a power reactor. To the contrary, as the complexity and cost (including debt service) of power reactor construction has increased, scheduling factors have obviously commanded a great deal of licensee attention. It would take a showing l of complete and utter licensee irresponsibility to meet this threshold, a showing certainly not made here and nearly impossible to make in any case. It seems l inconceivable that the Commission could possibly have i intended to establish such an unrealistic standard.

Having established that the Licensing Board evaluated petitioner's proposed contention using an incorrect stan-

dard, the question arises as to whether this Appeal Board can nevertheless. uphold the decision of the Licensing Board or whether it must remand this proceeding. Licensee l-submits that in view of the record developed by the Licen-sing Board, its decision can be affirmed and that a remand

^

is not needed.

As discussed above, the Licensing Board should have w

limited its evaluation of petitioner's proposed contention to the question of whether petitioner set forth any basis for the proposed contention that Licensee was dilatory, l 1.e., intended to delay the construction of WNP-2.

_. - - . .- _ - - - - _ _ - - - - , _ - - _ _ _ - -. _ - _ _ - - _ - - _ - . - . . , . . . ~ .

Nevertheless, the broad definition of dilatory used by the Licensing Board encompassed intended delays and also went beyond'to " indifference." Thus, the findings made by the

, Board that petitioner failed to provide an adequate basis

for an acceptable contention necessarily included findings i

on both int'entional delay and indifference to delay. In fact, the Board noted petitioner's acknowledgement that Licensee did not intentionally delay construction of WNP-2.12 As a result, the record clearly reflects that no basis was provided for contending that Licensee inten-tionally delayed the' construction of WNP-2, and that had

, the correct (more narrow) legal standard been applied, the petition to intervene and request for a hearing would have been denied. Under these circumstances, to remand the proceedings would be an empty formality and one which is not required as a matter of law or prudent as a matter of policy.13 1

12 WNP-2, supra, February 22, 1983, slip op. at 5; Washington Public Power Supply System Nuclear Projects Nos. I and 2, Transcript of January 26-27, 1983, Prehearing Conference b~ ("Tr.") at 50-52.

13 Cf. Camper v. Calumet Petrochemicals, Inc., 584 F.2d 70, 71

1. TTth Cir. 1978) (per curiam). In a related procedural matter, Licensee notes that as the successful party before the Licensing Board, it "may urge that [the Board's] decision be sustained on any ground which finds support in the record, even where the ground has been rejected or disregarded below." Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975) (citations omitted). In the instant case, Licensee argued before the Licensing Board that petitioner failed to provide any basis t

(footnote continued) y ,--,---,n - . _ . . . . - . _ . _ . , . , , _ . . , , _ . _ _ _ , ~

1 B. Assuming Arguendo that the Licensing Board Applied the Correct Standard, It Properly Held that Petitioner Failed to Set Forth a Litigable Contention Assuming arguendo that the Licensing Board properly a

considered allegations that Licensee was " indifferent" to 4

f delay and as such did not establish good cause for the construction permit extension, the Board correctly held that petitioner failed to set forth a litigable conten-tion. -

1. General Legal Principles -- Basis & Specificity

, The Commission's Rules ' of Practice require that:

l . . . the petitioner shall file . . . '

l a list of the contentions which peti-tioner seeks to have litigated in the matter, and the bases for each conten-tion set forth with reasonable speci-l ficity.14 l

i The Statement of Considerations for Section 2.714(b) indicates the importance which the Commission attachea to the basis and specificity requirements, and states that "a proposed contention must be set forth with particularity and with the appropriate factual basis."15 It is clear t

( footnote continued from previous page) for its proposed contention that Licensee was dilatory, i.e.,

I intended to delay construction of WNP-2. As discussed above, this position was rejected by the Licensing Board.

1 14 10 C.F.R. 62.714(b).

15 43 Fed. Reg. 17798 (1978). -

that the Commission intends the requirement to establish a threshold test which a contention must meet before it can be admitted as an issue in controversy in a proceeding.

, , The Appeal Board has explicitly recognized the impor-l .tance of the basis and specificity requirements, as

! S

follows:.

A purpose of the basis-for-contention

' requirement in Section 2.714 is to help assure at the; pleading stage that the hearing process is not im-properly invoked.. For example, a licensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for chal-1enges to the basic structure of the

Commission's regulatory process.

l Another purpose is to help assure that i

other parties are sufficiently put on I notice so that they will-know at least

[ generally what they will have to de-

fend.against or oppose. Still another purpose is to assure that the proposed issues are proper for adjudication in the particular proceeding. In the final analysis, there must ultimately be strict observance of the require-ments governing intervention, in order that the adjudicatory process is in-voked only by those persons . . . who seek resolution of concrete issues.16 In short, what was cequired of petitioner la that, first, it identify each allegation against whien Licensee must defend. .However, in NRC proceedings, mere " notice i

16 Philt.delphia Electric Company, (Peach Bottom Atomic Power i Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974)

(citaticns omitted). See BPI v. Atomic Energy Commission, 502 F.2d 424 (D. C. Cir. 19'i4) (Specificity and basis requirements are consistent with Section 189(a) of the Atomic Energy Act).

L_

pleading" is insufficient, and the Commission's require-ments clearly extend beyond the simple " notice pleading" allowed in the Federal courts.17 This is a point of par-

,, ticular importance because in NRC licensing proceedings an applicant bears the burder. of proof on any contention  ;

admitted,18 and thus is entitled to clear and specific ,

notice of the issues on which it is expected to bear that burden. Second, the basis of the contentions must be set forth with sufficient specificity so that the Board can detenmine that they have adequate foundation "to warrant further exploration" and that they state issues " proper for adjudication in the particular proceeding."19 As it recognized, the Licensing Board must require that petitioner file meaningful contentions which properly state the matters it wishes to place in controversy and to otherwise meet the requirements of the Rules of Practice.

Petitioner has participated and is now participating in a number of other NRC licensing hearings and is therefore familiar with the Rules of Practice governing such

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proceedings.20 Accordingly, deficiencies in its pleadings S

17 . Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 575 n. 32 (1975).

18 10 C.F.R. $2.732.

19 Peach Bottom, ALAB-216, supra, 8 AEC at 21.

20 -See 52 of Request for Hearing filed by petitioner on February 22, 1982.

should not be excused on the basis that they were prepared by a " layman."21 Lastly, the admission of contentions with insuf-

. ficient specificity and basis could result in the hearing process being invoked when it is not truly necessary.22  ;

g were it not for this petitioner, no hearing would be held i in this matter. Therefore it was essential for the Board to satisfy itself that petitioner has satisfied both the basis and specificity requirements of Section 2.714. The Board properly concluded that petitioner had not met its.

burden in this regard.

2. Evaluation of Standard. In order to provide a basis for its proposed contention, petitioner was required i

by Section 2.714 to provide a basis for its assertion that Licensee was dilatory.

( The Licensing Board correctly found that petitioner failed to do so. The entire purported basis identified on appeal by petitioner for its proposed contention is a report prepared by the Washington State Energy and Utili-ties Committee (January 12, 1981 and March 1, 1981).

t

'O 21 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746, 748 (1978); Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470 Tf978); Wolf Creek, ALAB-279, supra, 1 NRC at 576-77; Public Service Electric c Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AFC 467, 489 (1973).

22 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station) , ALAB-305, 3 NRC 8, 12 (1976); Peach Bottom, ALAB-216, supra, 8 AEC at 20-21;

Petitioner cites various excerpts from that. report in its 4 -

attempt to show that Licensee's management was responsible for'the delays and that it was. aware of them.23 Howevere

, even assuming arguendo thet management was responsible for the delays (a claim Licensee does not concede), it clearly does not follow that such delays were dilatory, i.e., that management was indifferent to them. Nor does the report so state. The basic thrust of petitioner's proposed contention was that management indifference resulted in constructien delays, not simply that management may have been responsible for the delays. The Board correctly concluded that petitioner provided rK) factual basis to show that such indifference existed.

Nor could petitioner have expected the Licensing Board to assume that alleged management failures neces-sarily evidence an indifference towards delay. For ex-ample, during the construction of WNP-2, a number of or-ganizational changes were made, such as the adoption of integrated management. Petitioner cites this change as an indication that Licensee was indiffferent towards delay L ,

because, according to petitioner, this change slowed con-struction.24 However, the allegation that such a change 23 Brief in Support of Appeal From Memorandum and Order of Atomic Safety and Licensing Board, Dated February 22, 1983

(" petitioner brief") at 3.

24 Id. at 4.

i . _ _ _ _ . _ _ -. _ _ . _ _ __ .__ .____ .._____ _ , _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ . _

in management organization slowed construction provides no basis for concluding that Licensee was dilatory. Simi-larly, the alleged failure of Licensee to " improve pro-ductivity . . . and . . . construction planning"25 does not evidence indifference towards delay. ,

, Indeed, petitioner concedes as much in its brief, as

follows

4 Petitioner went on to show that while i management was aware of scheduling de-lays that actions were never taken to remedy the problems. Since the role of management is to ensure completion of a job in a timely manner [,] failure to effect a change on the construction schedule of [WNP-2] can only be attri-buted to indifference on the part of management.26 As this excerpt shows, petitioner seeks to support its

! proposed contention not by establishing a specific basis.

Instead, it offers only the unsubstantiated argument that i

management was responsible for construction delays and that construction delays were not alleviated. It then follows with the illogical conclusion that management had to be indifferent to those delays. Accordingly, because petitioner has failed to provide any factual basis for its 4~

proposed contention that Licensee was indifferent towards delay, the Licensing Board properly declined to admit petitioner's proposed contention.

25

_Id.

26

_I_d.

. - - . . . .- . . . . . . , , , .-_ , . _ _ . . _. -- - . . ~ . . . _ . . - - - - - - , - .

IV. CONCLUSIONS In light of the foregoing, Licensee urges that the Appeal Board affirm the decision of the Licensing Board dismissing this proceeding but on the grounds that peti-tioner failed to particularize and support its contention .

that Licensee intended to delay construction of WNP-2.

Alternatively, Licensee urges that the Appeal Board affirm the decision of the Licensing Board for the reasons set forth in its February 22, 1983 Memorandum and Order.

Respec fu y submitted, Nicho LfS Sanfo r; L.

Reynolds-3artman Couns d f Licensee DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D. C. 20036 (202) 857-9800 March 25, 1983 i

e i

l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD p In the Matter of )

)

WASHINGTON PUBLIC POWER ) Docket No.50-397-CPA ,

.h SUPPLY SYSTEM )

)

(WPPSS Nuclear Project No. 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Licensee's Brief in Opposition to Appeal from Memorandum and Order of Atomic Safety and Licensing Board, Dated February 22, 1983" in the captioned matter were served upon the following persons by deposit in the United States mail, first-class, postage prepaid this 25th day of March, 1983:

Stephen F. Eilperin, Chairman William D. Paton, Esq.

Atomic Safety and Licensing Office of the Executive Appeal Board Legal Director U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Ms. Christine N. Kohl Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Panel Appeal Board U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 l

Dr. Reginald L. Gotchy Herbert Grossman, Esq.

Atomic Safety and Liceneing Chairman, Atomic Safety g Appeal Board and Licensing Board U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission commission Washington, D. C. 20555 Washington, D. C. 20555 Chairman, Atomic Safety and Mr. Glen O. Bright Licensing Appeal Board Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U. S. Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D. C. 20555

Dr. Jerry Harbour Mr. Eugene Rosolie Atomic Safety and Licensing Coalition for Safe Pcwer Board Suite 527 U. S. Nuclear Regulatory 408 Southwest 2nd Commission Portland, Oregon 97204 Washington, D .- C . 20555

• Mr. Gerald C. Sorensen Mr. Scott W. Stucky Manager of Licensing Docketing & Service Branch .

-o, Washington Public Power U. S. Nuclear Regulatory Supply System Commission 3000 George Washington Way Washington, D. C. 20555 Richland, Washington 99352 f)

/~ VSanfofd L. Hartman 9

h l

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