ML20005B911
| ML20005B911 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 09/15/1981 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20005B912 | List: |
| References | |
| EA-81-018, EA-81-18, ISSUANCES-SP, NUDOCS 8109160104 | |
| Download: ML20005B911 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f911SSION BEFORETHEATbMICSAFETYANDLICENSINGAPPEALBOARD In the Matter of CONSUMERS POWER COMPANY Docket No. 50-255 SP (Palisades Nuclear Power Facility)
(EA-81-18)
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N cp NRC STAFF'S REPLY TO THE UNION'S SHOWING OF CAUSE FOR LATE FILING I
Stephen G. Burns Counsel for NRC Staff September 15, 1981
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d UNITED STATES OF /.MERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT"0MIC SAFETY AND LICENSING APFEAL BOARD In the Matter of
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1 (EA-81-18)
Docket No. 50-255 SP CONSUMERS POWER COMPANY (Palisades Nuclear Power Facility)
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NRC STAFF'S REPLY TO THE UNION'S SHOWING OF CAUSE FOR LATE FILING On August 24, 1981, t.he Appeal Board ordered the Utility Workers Union of America, AFL-CIO, and its 'tichigan State Utility Workers Council (hereinafter " Union") to show cause why the Union's appeal from the Licensing Board's July 31, 1981, order should not Ue dismissed as untimely.
By order dated September 3,1981, the Appeal Board invited replies to ti.s Union's showing of cause. Because the Union has not provided " compelling" reasons why its tardiness should be excused, the Appeal Board should dismiss the appeal. If The Union argues that the Appeal Board should take up its appeal for two reasons:
(1) counsel's error did not comprise " culpable negligence",
but only an " unfortunate misapprehension" of the appropriate filing date; l
1/
On previous occasions, the Appeal Board has indicated that it will accept otherwise untimely appeals only in " compelling circumstances".
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 NRC 638 (1979); Iowa Electric Light & Power Co.
(Duane Arnold Energy Center), ALAB-108, 6 AEC 195 (1973).
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i and (2) the Union's appeal involves a " novel" issue of " substantial legal significance". Union Response at 1-2.
Counsel avers that she mistakenly calculated the time for filing the Union's appeal from the time of receipt, rather than Jervice, of the Licensing Board's decision. y While a detemination of the timely filing period requires a reading of three regulations (*0 C.F.R. 2.710, 2.712, and 2.714a), these regulations are reasonably clear with respect to the calculation of timely filing.
Section 2.714a expressly states that the period for appeal is calculated from time of service, not receipt, of an order denying a request for a hearing. 3/ The Union's excuse for tardiness does not appear " compelling", particularly in view of the Appeal Board's dismissal of an appeal filed one day late by a pro,s_e intervenor in Iowa
_ Electric Light & Power Co. y y
Counsel's affidavit describes in part her recollection of a telephone conversation with Ronald E. Mount, then counsel to the NRC Staff.
In order to afford the Appeal Board a full account of the recollections of that conversation and to dispel any notion that the Staff inadver-tently gave counsel the impression that the proper filing date for the Union's appeal was other than August 17, 19871, the Staff submits the attached affidavit of Mr. flount.
Mr. !!ount left the service of the Nuclear Regulatory Commission on September 4,1981.
_3f The Staff notes that the rules of the National Labor Relations Board, with which counsel for the Union is presumably familiar, calculate the time for filing appeals from the date of service of the order from which an appeal may be taken.
- See, 102.67,102.81,102.88,102.111-102.ge.., 29 C.F.R.102.45,102.46, 114.
y ALAB-108, 6 AEC 195 (1973). The fact that a late filing may not work any substantici delay on proceedi'.gs is not itself sufficient cause to permit the appeal. Cf. Project Management Corp. (Clinch River Breeder Reactor Plant), ALABH4, 4 NRC 303, 394 (1976), with respect to late intervention.
The Union's other argument for accepting its untimely appeal stems f om its belief that this proceeding involves a " novel issue". The Union states that "[t]he role of licened workers in enforcement proceed-ings has never been addressed by the Commission." Union Response at 3.
This broad characterization is itself incorrect. 5/ But more importantly, the decision from which the Union appeals does not purport to resolve such a broad policy issue.
The only issue that would be examined on appeal is the limited question of whether the Union has shown it has a right to a hearing on the order.
The gravamen of the Union's appeal is the Union's belief that it has " constitutionally" protected interests which it has a right to defend before this Commission.
However, the Union relies on assertedly protected interests which even it concedes are beyond the jurisdiction of the Nuclear Regulatory Commission to remedy. 6f Moreover, the Union cites in support of 5]
For example, the Commission has promulgated regulations regarding inspections requested by workers and consultation with workers during inspections in 10 C.F.R. Part 19. Moreover, the Commission has pub-lished a proposed general statement of policy for enforcement actions that addresses enforcement actions against licensed operators.
See f
Fed. Reg. 66754, 66756 (Oct. 7, 1980). The scope of the Commission's inspection authority with respect to investigating the cause for the firing of workers was adjudicated in Union Electric Co. (Callaway Plant, Units 1&2) LBP-78-31, 8 NRC 366 (1978), aff'd, ALAB-527, t
9 NRC 126 (1979).
6f The brief states, " Federal law protects these employment interests by making it an illegal ' unfair labor practice' for an employer to unilaterally change a term or condition of employment without f
bargaining over the change with the Union.... Concededly, the National Labor Relations Board has exclusive jurisdiction to remedy these unfair labor practices." Union Brief on Apmel at 7-8 (footnote omitted).
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its constitutional argument Klein v. Califano 7f which is of questionable precedential authority for the Union's position. While no one disputes the validity of the broad due process principles stated by the Klein court, 8]
Klein's application of those principles has been overruled at least implicitly by the Supreme Court's decision in O' Bannon v. Town Court Nursing Center, 447 U.S.773(1980).9] Presumably, the Union compares its position to that of the residents in Klein who sought a hearing on the decertification of a nursing home. While the Third Circuit found in Klein, and in its companion case Town Court Nursing Center, that residents had a right to a hearing before an agency could revoke a nursing home's authority to provide care at govern-ment expense, the Supreme Court found on review of Town Court Nursing Center:
"Although we recognize that such a revocation may be harmful to some patients, we hold that they have ne constitutional right to participate in the revocation proceedings." 447 U.S. at 775.
_7]
586 F.2d 250, 257 (3d. Cir.1978), cited in Union Brief on Appeal at 8.
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8]
In fact, ;he Licensing Board found that application of the basic principles stated in Klein to this case supported the Staff's, rather than the Union's, position. tiemorandum and Order Ruling on Petition to Intervene at 16 (July 31,1981).
l 9/
The Court's holding reversed and remanded the Third Circuit's de-cision in Town Court Nursing Center v. Beal, 586 F.2d 280 (3d Cir.
1978), in which both the opinion of Judge Aldisert for the court and the concurring opinion of Judge Adams relied on the reasoning in Kl ei n.
See 447 U.S. at 779, 783.
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t Thus, to the extent the Union is relying on Klein to establish that it has raised a " novel issue" regarding standing before this agency, the Union's reliance is misplaced.
For the foregoing reasons, the Appeal Board should dismiss the Union's 4
appeal as untimely.
Respectfully submitted, Stephen G. Burns Counsel to NRC Sta'f
Enclosure:
Affidavit of Ronald E. Mount Dated at Bethesda, liaryland i
this 15th day of September,1981.
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