ML20215J669

Discusses Aslab Decision in TMI Proceeding Re Licensee Argument That Air & Water Pollution Patrol Requests for Hearing & Leave to Intervene Invalid.Participant Consulting Another Assumes Risk That Advice Erroneous

ML20215J669
Person / Time
Site:	Limerick
Issue date:	06/16/1987
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Cole R, Morris P, Wolfe S Atomic Safety and Licensing Board Panel
References
CON-#287-3812 OLA, NUDOCS 8706250074
Download: ML20215J669 (9)

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2.AW OYFICEN CONNER & WETTERH AHN. P.C. DOCKEiEO 17 4 7 I'E N N S Y LVA N I A ' AV E N U E, N. W.

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ER:.lD1 case a sooness arcutaw Sheldon-J. Wolfe, Chairman Dr. Richard.F. Cole Atomic Safety and Licensing Atomic Safety and Board- Licensing Board United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission' Washington, D.C. 20555 Washington, D.C. 20555 Dr. Peter A. Morris Atomic Safety and Licensing Board United States-Nuclear Regulatory Conmission Washington, D.C. 20555 In the Mntter of Philadelphia Electric Company (Limerick Generating Station, Unit 1)

Docket No. 50-352-OLA-(TS Iodino)

Gentlemen:

On .May 20 and May 22, 1987, Philadelphia Electric Company .(" Licensee") filed answers in opposition to the requests for hearing and leave to intervene by Air and Water Pollution Patrol (represented by-Frank R. Romano) and Robert ,

L. Anthony, respectively. In its answers, Licensee argued  ;

that each petition is invalid and cannot constitute a legal basis for a hearing or intervention.

Today I became aware of a decision by the Appeal Board in the special Three Mile Is],a,nd proceeding which is relevant to Licensee's argument.1' In that decision, the J_/ General Public Utilities Nuclear (Three Mile Island Nuclear Station, Unit No. 1), ALAB " Memorandum and (Footnote Continued) 8706250074 870616 PDR ADOCM 05000352 Q PDR

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-Sheldon J. Wolfe, Chairman Dr. Richard'F. Cole Dr. Peter.A. Morris

. , _ June'1G,'1987 Page~2 Appeal Board dismissed sua. sponte the ~ appeal: of an intervenor as untimely without good cause. The intervenor had contended that its lateness was excusable because, as a

-lay person,' the intervenor's representative '

had misunderstood.the time for appeal.and had reasonably relied upon the advice given by an- attorney representing the Commonwealth of Pennsylvania in ' the proceeding 'as to the timeliness'of its appeal.

What the Appeal Board ruled with regard to the Rules of  !

Practice p plies equally to the Commission's a'

formally published' notices in the Federal Register. The Appeal Board  ;

stated: '

A participant . who chooses not to { con-sult .the Rules), but instead .to rely upon the advice of anoths; person as to when a particular filing is due under the Rules,. assumes the risk that the advice will prove e r r o n e o'ul ~ - - a risk that 'unfoi tunately materiaTI' zed in this instance.2/

Sincerely,

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' Troy B Conner, Jr. y!

Counsel for Licensee sdd-Enclosure l cc: Service List

'(Footnote Continued) i Order" (May 20, 1987).

l For the convenience of the Licensing Board and parties, a copy is attached.

2/ Id. at 4 (emphasis added).

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T COCKETED JiNFC UNITED' STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION +87 MAY 20 P2 :19 ATOMIC SAFETY AND LICENSING APPEAL BOARD

Fr Administrative Judges: 00 Lei ,

Alan S. Rosenthal, Chairman May 20', 1987 Thomas S. Moore Howard A. Wilber '

SERVED MAy 20 ggg)

In the Matter of )

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GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)

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(Three Mile Island Nuclear )  ;

Station, Unit No. 1) ) l

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MEMORANDUM AND ORDER For two separate and distinct reasons, we are constrained to dismisc 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

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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 "[wlithin 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 1 responded to the following effect: (1) as a lay person, she n 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 i

Department of Environmental Resources; and (3) as l 1

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 in her belief that the initial decision provided a thirty-day period in which to note an appeal.4 ,

I 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 1 were not told that they had thirty days within which 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 1

with 10 CFR 2.762. Even a lay person should have understood

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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 I 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.

Apparently, when contacted at home by the TMIA representative, the state agency counsci 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 l,

the section. In the circumstances, he was extremely ill-advised in providing any advice at that time (i.e.,

before consulting the section) .

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t 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 i nonlawyer." As we pointed out ,

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i In some respects, we do relax our rules to accommodate the fact that a party may not have the ,

benefit of counsel. . . . But no good reason exists why a double standard should obtagn insofar as observance of deadlines is concerned.

1 In this connection, we think the asserted unavailability of i l

the Pennsylvania State Library to the TMIA representative to'  !

be of no present moment. It is not unreasonable to expect j 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 chooscs not to do j i

so, but instead to rely upon the advice of another oerson as to when a particular filing is due under the Rules, assumes I

the risk that the advice will prove erroneous -- a risk that

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unfortunately materialized in this instance.

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2. Our reading of the initial decision leads to the i conclusion that the result reached was entirely favorable to l

TMIA. Indeed, the Administrative Law Judge expressly stated )

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Metropolitan Edison Co. (Three Mile Island Nuclear l Station, Unit No. 2), ALAB-474, 7 NRC 746, 748 (1978). l l

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that he was finding "in TMIA's favor as to its two contentions."

This being sc, 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).

8 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)).

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I trial tribunal. This is because "'[a]n appeal lies from the l- decision of the [ trial tribunal), not its opinion; it is the

[ 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 a 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- l 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 oth result) .gg. party which is seeking a dif ferent 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 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),

j 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. As just seen, in that brief TMIA will be free to urge affirmanca 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.

TM1A's appeal is dismissed.

It is so ORDERED.

FOR THE APPEAL BOARD v,_- ._ 1 - Jh, a A.

Barbara A. Tompkins Secretary to the Appeal Board i

11 See supra note 7.

12 See 10 CFR 2.762(c), (d), (e), (f) (form and time requirements for responsive brief s) .