ML20140B478

Response to Aslab 810824 Order to Show Cause Why Appeal Should Not Be Dismissed as Untimely.Untimely Filing Due to Misunderstanding Re Computation of Commission Time Limits for Appeal Filings

ML20140B478
Person / Time
Site:	Palisades
Issue date:	08/31/1981
From:	Campbell L MARSTON, SACHS, MUNN, KATES, KADUSHIN & O'HARE, UTILITY WORKERS UNION OF AMERICA
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20140B471	List: ML20140B467 ML20140B478 ML20140B483
References
EA-81-018, EA-81-18, NUDOCS 8109140201
Download: ML20140B478 (5)

Text

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UNITED STATES OP AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY Docket No. 50-255 (EA 81-18)

(Palisades Nuclear Power Facility) ,

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RESPONSE OF UNION TO ORDER TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED AFFIDAVIT OF LAURA J. CAMPBELL PROOF OF SERVICE i

i MARSTON, SACHS , NUNN, KATES, KADUSHIN & O' HARE, P.C.

By: Laura J. Campbell (P-32217)

Attornefs for Union 1000 Farmer Street

. Detroit, Michigan 48226 (313) '365-3464 8109140201 810831 PDR ADOCK 05000255 G PDR

O e UNITED STATES OF A!CRICA N0 CLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY Docket No. 50-25:

(EA 81-18)

(Palisades Nuclear Power Facility)

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RESPONSE OF- UNION TO ORDER TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED On July 31, 1981, the Atomic Safety and Licensing Board issued a Memorandua and Order denying the request for hearing filed by the Utility Workers Union of America and its affiliate, the Mi chigan State Utility Workers Council (Union) regarding a March 9, 1981, Confirming Order issued by the Commission.

On August 4 or August 5, 1981, the Ur. cn received the ASLB's Memorandum and Order. Fourteen days later, the Union

. sent by express mail its Notice of Appeal and supporting l brief for filing with the Atomic Safety and Licensing Appeal l

Board.~ On August 24, 1981, the Appeal Board issued an Order stating that the Union's appeal was untimely and directing the Union to show cause why its appeal should not be dismissed.

The failure of the Union to timely file its appeal was not due to the culpable negligence of the Union, but was, ra ther , the result of an unfortunate misapprehension of Union-counsel' regarding the computation of the Commission's time

! limits for filing of appeal. The appeal, which was filed one l

l day late, raises an important and novel issue of substantial I i l

legal significanca. The Union respectfully submits that the filing error will- have no prejudicial effect on any party, and requests that the Utility Workers , which were in no manner responsible for the error, be spared the heavy penalty of dismissal for counsel's misunderstanding, and be permitted to go forward with the appeal.

As set forth in the attached Affadavit of Union counsel Laura J. Campbell, although counsel was fully aware that under the Commission's Regulations, 10 CFR S 2. 714 (a) and S2.710, an appeal must be submitted within fif teen days, counsel erroneously believed that the fif teen days began to run following receipt of the Board's Order. It was therefore Union counsel's ndsapprehension that an appeal was timely when received by the Appeal Board for filing within fifteen days of receipt of the original Order. Counsel acted according to this misapprehension and the appeal, although received by the Appeal Board within fif teen days ' of the receipt of the Order, was filed one day late according to Appeal Board calculations.

Union counsel's error, although grievous, did not amount to culpable neglect or disregard for the Commission's l procedural rules, but was instead an unfortunate misunderstanding l

concerning the application of those rules. In addition, the appeal was sent within one day of the correct filing date, and consideration of the merits of the appeal would in no manner 1

l prejudice any party to the proceeding. Nuclear Engineering I Company, Inc. (Sheffield, Illinois, Low-level Radioactive l

Waste Disposal Site), ALAB-606, 2 Nuclear Reg Rep (CCH) 130,513 (1980).

The cppeal, which concerns the issue of whether the Union, as exclusive representative of the workers in the Palisades Nuclear Facility regarding terms and conditions of employment, is entitled to be heard regarding a Commission Order altering the working conditions of such employees, presents an important and legally significant question of first impression. The role of the licensed workers in enforce-ment proceedings has never been addressed by the Commission.

The issue is one of great importance to the Palisades plant operators, who are entirely blameless in this matter and who should not be prejudiced due to its counsel's misunderstanding.

The Union fully understands and respects the desire of the Commission to preserve the integrity of its procedural rules. However, the time limits established by the Commission's rules with regard to appeals from Board deci7 ions and orders are not Jurisdictional, N'uclear Engineering Co. , supra, and the Union respectfully submits that the instant case presents con-siderations which justify relief from the harsh penalty of dismissal. ~1/The Union does not appear three months late without explanation and ask to be heard, as was the case in Houston Lighting and Power Company (Allens Creek Nuclear Generating S ta tion , Unit 1), ALAB-547, 2 Nuclear Reg Rep (CCH), 530,386 (1979).

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In the context of motions for extensions of time for

. filing of briefs, where there has been no clear necessity for expedited resolution, appeal boards have been quite liberal.

Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1) ALAB-204, AEC Rep (CCH), 111,713.06, fn 2 (1974).

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Rather, it mnde a mistcken calculation based upon an unfor-tunate misappre.hension regarding the application of Commission appellate procedures. The Union ther'efore respectfully requests that the Appeal Board consider the merits of its appeal on bahalf of the licensed nuclear operators at the Palisades nuclear facility.

Respectfully submitted, MARSTOM, SACHS, NUNN, KATES, KADUSHIN & O'HAPI, P.C.

BY: _

@ pU J. CAMPBKL (P-32/17) actorneys for Cnion 1000 Farmer Street Detroit, Michigan 48226 (313) 965-3464 DATED: -

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