ML20137P941
| ML20137P941 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 09/17/1985 |
| From: | Rader R CONNER & WETTERHAHN, DUKE POWER CO. |
| To: | Edles G, Gotchy R, Kohl C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-525 2.206, ALAB-813, OL, NUDOCS 8509190833 | |
| Download: ML20137P941 (2) | |
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Christine N. Kohl, Chairman Dr. Reginald L. Gotchy Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
.Mr. Gary J.
Edles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)
Docket Nos. 50-352 and 50-353 OL -
Dear Board Members:
Since the filing of our brief on August 6,
1985, the decision by the Appeal Board in Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-813, 22 NRC (July 26, 1985)
(served July 29, 1985) has come to the attention of the undersigned counsel.
Although I am sure that the Board is aware of this decision, I wish to make certain points for the record, on behalf of the Licensee, Philadelphia Electric Company, following the practice in the federal courts under FRAP 28(j):
1.
At pages 32-33 of ALAB-813, the Appeal Board stated that the issuance of final findings by the Federal Emergency. Management Agency
(" FEMA")
is not a
prerequisite to authorization of a
full-power operating license and that interim reviews and findings are sufficient to support NRC licensing actions.
This supports the Licensing j
Board's finding that the incompleteness of the i
FEMA review for Limerick at the time of the hearing does not impede the Board's ability to 8509190033 850917 PDR ADOCK 05000352 G
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.Christina N. Kohl, Chairman Mr. Gary J. Edles i
.Dr. Rsginald L. Gotchy September 17, 1985 Page.2 make the necessary predictive findings (Licensee's Brief at 82-83).
4 2.
At page 28 of ALAB-813, th'e Appeal Board ruled that alleged error in the curtailing of L
cross-examination is insufficient to warrant l
appellate relief and that the complaining party l
must demonstrate actual prejudice, i. e._, that the i
ruling had a substantial effect on the outcome of the. proceeding.
The Appeal Board in. ALAB-813 stated at page 29 that to demonstrate prejudice an intervenor must explicitly allege which witnesses were not allowed to testify, the reasons assigned by - the Licensing Board and the substance of the l.
precluded testimony.
This supports the Licensee's argument that appellant LEA has failed to point out any area of inquiry it was precluded from pursuing with regard. to particular witnesses and has thereby failed to specify any actual prejudice i
(Licensee's Brief at 85).
The Licensee further submits that its argument on this point is sup-a ported by the Appeal Board's finding at pages 24-25 and - 43 of ALAB-813 'that similar procedural i
- rulings, e.g.,
discovery and scheduling orders, will be overturned only when they deprive a party of procedural due process.
3.
Throughout the Licensee's brief, e.g.,
pages 14-19 i
with respect to the special needs surveys, Licens-ee argues that LEA has not clarified the specific 4
i error assigned or the reasons for finding. factual or. legal error.. At page 46, note 128,.the Appeal Board ruled in ALAB-813-that_"it is incumbent upon j
the appellant to confront directly the reasons assigned'for the challenged ruling and to identify with particularity the infirmities purportedly inherent in those reasons."
Sincerely, i
[}4.
Robert M. Rader Counsel for thel Licensee l
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