ML20084M667

Answer Objecting to Util Motion to Substitute Certain Onsite Emergency Plan Implementing Procedures in Applicant Exhibit 33

ML20084M667
Person / Time
Site:	Limerick
Issue date:	05/09/1984
From:	Elliott C LIMERICK ECOLOGY ACTION, INC.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8405150485
Download: ML20084M667 (4)

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Before the Atomic Safety and Licensing Board,O:;,UI

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) ) ,

LEA REPLY TO " APPLICANT'S MOTION TO SUBSTITUTE CERTAIN ONSITE EMERGENCY PLAN IMPLEMENTING PROCEDURES IN APPLICANT EXHIBIT 33"

SUMMARY

LEA objects to " Applicant's Motion to Substitute Certain Onsite Emergency Plan Implementing Procedures in Applicant Ex-hibit 33" (" Motion") because it improperly seeks to reopen a record now-closed on LEA's on-sito cmcrgency planning conton-tions, it socks to substantively change proceduros rolovant to LEA's contentions (and thus change Applicant's testimony in the proceeding), and seeks to destroy LEA's right of cross-examination.

ARGUMENT The record on LEA's contentions on on-site emergency ,

planning is now closed. Tr . 10,274. Plainly, in order to 8405150485 840509 PDR ADOCK 05000352 h

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" substitute" the " revised" cmergency plan implementing pro-cedures, they must be received into evidence. For them to be received into evidence, the record must be reopened. Thus, the relief sought by the Motion, to " substitute" exhibits al-ready admitted'into evidence, is highly irregular and improper.

The Applicant's Motion should be denied on this basis alone.

However, even treating the Motion as a Motion to Reopen the Record, the Motion must be dismissed. It is fundamental that to reopen an evidentiary record, a party must establish inter alia, the existence of newly discovered evidence having a material bearing upon the proper result in the proceeding.

Kansas Gas

& Electric Co.(Wolf Creek Generating Station) ALAB-

. 462, 7 NRC 320, 338 (1978).

The facts asserted on the face of Applicant's Motion,  ;

and the face of the revised procedures Applicant seeks to  !

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" substitute", are fatal to Applicant's Motion. i 5

2 First, the " evidence" in the form of the procedures is plainly not

" newly discovered" -- it was in existence and pre- 5 pared by Applicant weeks prior to the hearing in this matter.

Applicant's counsel's oversight does not excuse it.1/

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II . is Indcod, it is not moroly a question of ovorsight by counsel.

Representations by counsel on the record were made regarding ,%

'the authenticity counsel of the procedures, which were accepted by LEA's (Tr. 9764). In addition, Applicant's witness Ms. Kankus' testified under oath that the testimony and exhibits were true -

.and correct, and_ adopted them as her testimony. (Tr. 9769) s -

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.Second, if Applicant's Motion is to be believed, the changes in the procedures "do not affect the function or mission of the individuals or groups responsible for carrying out the procedures or the manner in which their activities under the procedures are performed", (Motion, p. 2), and each witness, and counsel "has determined that none of the revisions would require a change in his or her testimony before the Board".

Thus, if Applicant's-Motion is-correct, the revisions could not possibly have a " material bearing upon the proper result in the proceeding", and Applicant has failed to make-the necessary showing to reopen the record.

Applicant's Motion was unsupported by affidavit or any

- other document. LEA's review of the procedures sought to be

" substituted" show material, substantive changes, directly relevant to LEA's contentions.

This revised testimony is impermissibly lato (plainly, as it comes after the hearing). It is offered without any sponsorship, or indicia of reliability.

However, more darkly, Applicant's " substitution" pro-cedure would utterly deprive LEA of'its fundamental right of cross examination on those procedures upon which Applicant expects the Board to rely.

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e For all of these. reasons, LEA respectfully requests the Board to deny Applicant's Motion in all respects.

gu a B 2t W' Charles W. Elliott, Esquire 1101 Building

~ Easton, Pennsylvania 18042 (215) 258-2374 Dated: May 9, 1984 i

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