ML20083N688

Answer to Limerick Ecology Action 840402 Motion to Strike Selected Portions of Applicant Testimony on Onsite Emergency Planning.Motion Raises No Valid Evidentiary Objection. Certificate of Svc Encl.Related Correspondence

ML20083N688
Person / Time
Site:	Limerick
Issue date:	04/16/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8404190262
Download: ML20083N688 (7)

Text

,i hN RE!ATED COhnt.st'ONas;NCE Y

DOLKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 34 APR 18 40:32~

Befo're the Atomic Safety and Licensing Board:F SECRtiTAR-

- u. . bG 4 SEpyrr,r In the Matter of ) 3RA t1CH

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S ANSWER TO MOTION BY LIMERICK ECOLOGY ACTION TO STRIKE SELECTED PORTIONS OF APPLICANT'S TESTIMONY ON ONSITE EMERGENCY PLANNING Pursuant to the Order dated March 15, 1984 issued by the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board"),1! intervenor Limerick Ecology Action

(" LEA") filed a motion to strike certain portions of the written testimony filed by Philadelphia Electric Company

(" Applicant") on April 2, 1984. Applicant opposes LEA's motion to strike on the ground that the objections it has raised would, at most, bear upon the weight to be accorded the testimony sought to be stricken.

The sole objection raised by LEA in its motion to strike relates to certain portions of the testimony which LEA characterizes as hearsay. Nonetheless, LEA acknowledges

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1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , Docket Nos. 50-352-OL and 50-353-OL, " Order Confirming Miscellaneous Oral Record Rulings" (March 15, 1984) (slip op. at 5).

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__9 52 PDR

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that hearsay evidence is admissible in administrative proceedings such as this, and correctly states that, under 10 C.F.R. S2.743(c), the governing consideration is whether the evidence'is " reliable."

The Appeal Board has long since ruled that even evi-dence which is " entirely hearsay . . . is generally admissi-ble in administrative proceedings," including NRC licensing cases.

2/ The Appeal Board more recently reiterated this holding in Catawba, where it added: "Thus, whether certain evidence falls within an exception to the hearsay rule is beside the point."3_/ And in San Onofre, the Appeal Board held: "Whether evidence is or is not hearsay is significant only insofar as it bears upon the question of its reliabil-ity."1/

Accordingly, LEA's objections to alleged hearsay .are without legal merit because they do not relate to the admis-sibility of the testimony, but rather to the weight- it should be accorded. This Licensing Board has so ruled in a similar context, denying an earlier motion to strike because the objections "go to the weight to be accorded to the 2/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 412 (1976).

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3/ Duke Power Company - (William B. McGuire' Nuclear Station, Units I and 2), ALAB-669, 15 NRC 453, 477 (1982).

4/ Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3) , ALAB-717, 17 NRC 346, 366-(1983).

evidence, but do not establish that the evidence is so unreliable that it can be determined at this time to be entitled to zero weight."5_/ LEA's objections as to hearsay are therefore argumentative rather than evidentiary.

Applicant's officials responsible for coordinating the availability of offsite fire department equipment and personnel are certainly knowledgeable with regard to the procedures applicable to their dispatch by Montgomery County (paragraph 40) as well as their availability for Limerick (paragraph 54). Those individuals (including represen-tatives of Applicant's consultant, RMC) who have negotiated and discussed the agreement with Pottstown Memorial Medical Center likewise have sufficient personal involvement and knowledge to testify as to the arrangements which have been agreed upon with the hospital (paragraphs 43 and 5 6 ) . 6_/

Finally, Applicant's emergency planners have obviously had 5/

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Limerick, supra, " Memorandum and Order Ruling on Motions to Strike Testimony" (December 1, 1983) (slip op. at 8). The Board in the Pebble Springs proceeding ruled similarly that "the evidence adduced need not be accepted in its entirety, and likewise, need be given only the weight that the [ Licensing Board] concludes is persuasive." Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), Docket Nos.

50-514 and 50-515, " Order Denying Intervenors' Motion to Strike Certain Testimony of Gordon T.C. Taylor" (November 4, 1976) (slip op. at 5).

-6/ While LEA has characterized its objection as one relating to the witness's " qualifications," it is clear that its objection is directed to the witnesses' knowledge rather than their qualifications.

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enough contact with the United States Department of Energy and the Pennsylvania Bureau of Radiation Protection to testify as to the responses which are planned by those organization's (paragraph 60). Such testimony concerning discussions with representatives of offsite organizations upon which Applicant has based its Emergency Plan provisions and procedures is inherently reliable.

Conclusion For the reasons discussed above LEA's motion to strike raises no valid evidentiary objection, but merely argues the weight to be accorded the evidence. Its particular concerns as to reliability are properly addressed to cross-examination of the witnesses.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Q T B Conner, Jr.

z.

Mark J. Wetterhahn

. Robert M..Rader Counsel'for the Applicant April 16, 1984 4

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

., 1 00LKETEC USNRC i

UNITED STATES OF AMERIC24 APR 18 N0:32 NUCLEAR REGULATORY COMMISSION RLE OF SECRtTAN *

! 1;K rT

. tNG & SEftVICf.

In the Matter of ) BRANCH

. . )

Philadelphia Electric Company ) Docket Nos. 50-352 l'

) 50-353

-(Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Motion by Limerick Ecology Action to Strike Selected

, ' Portions of Applicant's Testimony on Oniste Emergency Planning," dated April 16, 1984 in the captioned matter have been served upon the following by deposit in the United-l States mail this 16th day of April, 1984:

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.

• Lawrence Brenner, Esq. (2) Atomic Safety'and Licensing Atomic Safety.and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory _ Commission Commission-

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Washington, D.C. 20555 Washington,.D.C. 20555 Docketing and Service Section

• Dr. Richard F.-Cole Office of the' Secretary

. Atomic! Safety and U.S. Nuclear Regulatory Licensing Board Commission-

.U.S. Nuclear-Regulatory Washington, D.C. 20555

Commission

, Washington,:D.C. 20555

• Ann P..Hodgdon, Esq..

. Counsel for NRC Staff Office i- *Dr.~ Peter A. Morris of'the Executive Atomic Safety and Legal Director

' Licensing Board > U.S. Nuclear. Regulatory.

U.S.-Nuclear Regulatory Commission Commission  ; Washington, D.C. 20555'

-Washington, D.C. 20555-4

'* . Hand Delivery' M

i g , y ~ > - w s< .-~-w,ma --s:- ,

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Atomic Safety and Licensing Steven P. Hershey, Esq.

Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.

Commission Law Center West North Washington, D.C. 20555 5219 Chestnut Street Philadelphia, PA 19139 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. Angus Love, Esq.

Vice President & 107 East Main Street General Counsel Norristown, PA 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore,-PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.

Sugarman, Denworth &

Mr. Robert L. Anthony Hellegers Friends of the Earth of 16th Floor, Center Plaza the Delaware Valley 101 North Broad Street 106 Vernon Lane, Box 186. Philadelphia, PA 19107 Moylan, Pennsylvania 19065 Director, Pennsylvania Mr. Marvin I. Lewis Emergency Management Agency 6504 Bradford Terrace Basement, Transportation Philadelphia, PA 19149 and Safety Building Harrisburg, PA 17120 Phyllis Zitzer, Esq.

Limerick Ecology Action Martha W. Bush, Esq.

P.O. Box 761 Kathryn S. Lewis, Esq.

762 Queen Street City of Philadelphia Pottstown, PA 19464 Municipal Services Bldg.

15th and JFK Blvd.

• Charles W. Elliott, Esq. Philadelphia, PA 19107 Brose and Postwistilo 1101 Building lith & Spence W. Perry, Esq.

Northampton Streets Associate General Counsel Easton, PA 18042 Federal Emergency Management Agency Zori G. Ferkin, Esq. 500 C Street, S.W., Rm. 840 Assistant Counsel Washington, DC 20472 Commonwealth of Pennsylvania Governor's Energy Council Thomas Gerusky, Director 1625 N. Front Street Bureau of Radiation Harrisburg, PA 17102 Protection Department of Environmental Resources 5th Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA 17120

• Hand Delivery

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Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prus,sia, PA 19406 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Robert M. Rader