ML20214G621
| ML20214G621 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/20/1987 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | THREE MILE ISLAND ALERT |
| References | |
| CON-#287-3515 CH, NUDOCS 8705270123 | |
| Download: ML20214G621 (7) | |
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~ UNITED STATES OF AMERICA.
. NUCLEAR. REGULATORY. COMMISSION y g-ATOMIC SAFETY:AND LICENSING APPEAL BOARD OFFICE 07 EE;,y t,pg Administrative Judges:
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Alan S. Rosenthal, ChairmanL May 20, 1987 Thomas S. Moore Howard'A. Wilber SERVED MAY 201987
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In the Matter.of
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GENERAL _ PUBLIC ' UTILITIES NUCLEAR
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Docket No. 50-289 (CH)
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(Three Mile Island. Nuclear
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Station, Unit No. 1)
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MEMORANDUM AND ORDER For_two separate and distinct reasons, we are constrained to dismiss sua sponte the appeal of intervenor Three Mile Island Alert, Inc. (TMIA), from the Administrative Law Judge's April 2, 1987 initial decision in this special proceeding involving Charles Husted.1 1.
The appeal is plainly untimely without good cause.
-At the conclusion of his decision, the Administrative Law Judge advised the. parties that the decision would
" constitute final action of the commission thirty (30) days after its date, unless an appeal is taken in accordance with 10 CFR 2.762."2 For its part, section 2.762(a) provides 1 See ALJ-87-3, 25 NRC at 2
Id. at (slip opinion at 71).
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2 that~"[w]ithin ten (10) days after service of an initial decision, any party may take an appeal to the Commission
[i.e., an appeal board] by filing a notice of appeal."
Inasmuch as the decision was officially served on TMIA and the other parties on April 3, the ten-day appeal period stipulated in section 2.762 (a) expired on April 13..
Service having been by mail, however, the provisions of 10 CFR 2.710 came into play and, in the first instance, added five days to the appeal period.
Because April 18 fell on a Saturday, section 2.710 further operated to move the deadline forward to the next business day, Monday, April 20.
But the TMIA notice of appeal was not filed until April 30.
This fact prompted us to issue an order directing TMIA to show cause why its appeal should not be dismissed because the notice was filed ten days late.3 TMIA's representative responded to the following effect:
(1) as a lay person, she had interpreted the above-quoted statement in the initial decision as meaning that TMIA had thirty days within which to note an appeal; (2) not having ready access to "the up-to-date copy of 10 CFR in the Pennsylvania State Library" because of her daytime employment, she had contacted at his home by telephone a lawyer on the staff of the Pennsylvania Department of Environmental Resources; and (3) as 3 May 5, 1987 order (unpublished).
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acknowledged by him in an affidavit appended to the response, that' individual had informed her that he concurred
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in her belief that the initial decision'provided_a thirty-day period in which to note an appeal.4 We find that explanation unavailing.
To begin with, despite its endorsement by the state agency counsel, the interpretation given by TMIA's representative to the pivotal language of the initial decision is untenable.
The parties were not told that they had thirty days within wt.ich to appeal.
Rather, the clearly conveyed message was that the decision would constitute final Commission action at the end of thirty days unless an appeal were taken in accordance with 10 CFR 2.762.
Even a lay person should have understood that to require a prompt examination of the terms of section 2.762.
Such an examination would, of course, have disabused the TMIA representative of the notion that the Administrative Law Judge had provided a thirty-day appeal period.5 4 TMIA's Response to Appeal Board Order Dated May 5, 1987 (May 13, 1987) at 1-2 and attached May 12, 1987 affidavit of Thomas Y. Au.
5 Apparently, when contacted at home by the TMIA representative, the state agency counsel did not have the text of section 2.762 at hand and, although he had appeared in NRC licensing proceedings, did not recall the terms of the section.
In the circumstances, he was extremely ill-advised in providing any advice at that time (i.e.,
before consulting the section).
4 Some years.ago, we observed that the time limits prescribed by the Commission's Rules of Practice must be honored even if "the party happens to be represented by a nonlawyer."
As we pointed outs In some respects, we do relax our rules to accommodate th'e fact that a party may not have the benefit of counsel.
.But no good reason existswhyadoublestandardshouldobtagninsofar as observance of deadlines is concerned.
In this connection, we think the asserted unavailability of the Pennsylvania State Library to the TMIA representative to be of no present moment.
It is not unreasonable to expect active participants in NRC licensing proceedings (whether lawyers or lay persons) to equip themselves with at least a copy of the Rules of Practice, which can be conveniently consulted as needed.
A participant who chooses not to do so, but instead to rely upon the advice of another person as to when a particular filing is due under the Rules, assumes the risk that the advice will prove erroneous -- a risk that unfortunately materialized in this instance.
2.
Our reading of the initial decision leads to the 9
conclusion that the result reached was entirely favorable to TMIA.
Indeed, the Administrative Law Judge expressly stated 6 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746, 748 (1978).
5 that he was finding "in TMIA's favor as to its two contentions."
This being so, our show cause order included a request that TMIA provide us with a brief statement of the grounds upon which it proposes to challenge the initial decision.
Its response to that request confirmed our suspicion:
TMIA does not intend to question the outcome below but simply desires to attack, as unsupported by the record, some of the subsidiary findings contained in the decision with which it is in disagreement.
It is well-settled that a party that has prevailed before the trial tribunal (i.e., has achieved the ultimate result desired by it) may defend the tribunal's decision on an appeal taken by the losing party on any ground that finds support in the record, even if the ground has been rejected or disregarded below.8 It is equally established that this is the only mechanism available to a prevailing party to complain of specific findings and determinations of the 7 25 NRC at (slip opinion at 71).
In essence, the Administrative Law Judge concluded that, because of his conduct and attitude, Mr. Husted should not serve in certain capacities in the course of his employment by the GPU Nuclear Corporation.
Ibid.
That conclusion closely tracked the TMIA contentions.
See id. at (slip opinion at 7).
O See Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975)
(citing Jaffke v. Dunham, 352 U.S. 280 (1957), and California Bankers Assn. v. Shultz, 416 U.S. 21 (1974)).
6 trial tribunal.
This is because "[a]n appeal lies from the decision of the [ trial tribunal], not its opinion; it is the I
[ tribunal's] orders (the administrative equivalent of a judgment) which are subject to appellate review."9 In sum, as explained in an early decision that manifestly applies to the situation at hand yet obviously has not come to TMIA's attention:
It is often the case that a party will be entirely satisfied with the result but, at the same time, will not subscribe to some of the findings of fact or conclusions of law contained in the initial decision.
In such circumstances, although normally precluded from taking an independent appeal, that party will be free to challenge any or all of those findings or conclusions in defending the result (should it be appealed by some othyg party which is seeking a different result).
Accordingly, even had it been timely filed the TMIA appeal could not have survived.
TMIA nevertheless will have the opportunity to present its views on any material findings in the initial decision with which it is in disagreement.
We have before us the appeal of Mr. Husted from the initial decision, who (in contrast to TMIA) was adversely affected 9 Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-478, 7 NRC 772, 773 (1978).
10 Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-282, 2 NRC 9, 10 n.1 (1975) (citing Nine Mile Point, supra).
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by it.11 As a party to the proceeding, TMIA will be entitled, of course, to file a brief in response to Mr.
Husted's brief in support of his appeal.12 As just seen, in that brief TMIA will be free to urge affirmance of the result below on any ground that has adequate record support, whether that ground was accepted, rejected or not passed upon in the initial decision.
TMIA's appeal is dismissed.
It is so ORDERED.
FOR THE APPEAL BOARD
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Barbara A. TompE ns~# ' '
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Secretary to the Appeal Board 11 See supra note 7.
12 See 10 CFR 2.762(c), (d), (e), (f) (form and time requirements for responsive briefs).
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