ML20086T013

Response Opposing Friends of the Earth 840224 Motion to Strike Applicant & Staff Structural Analysis Testimony. Motion Fails to Establish Testimony as Unreliable. Certificate of Svc Encl.Related Correspondence

ML20086T013
Person / Time
Site:	Limerick
Issue date:	03/01/1984
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8403060081
Download: ML20086T013 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board a t ;I b ,

In the Matter of )

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) ,

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APPLICANT'S' RESPONSE TO FOE'S MOTION TO STRIKE APPLICANT AND STAFF'S STRUCTURAL ANALYSIS TESTIMONY In a document captioned " Motion to Strike Testimony of Applicant and NRC Staff on the Structural Integrity of the Safety Related Structures by Intervenor R.L. Anthony / FOE,"

dated February 24, 1984, Friends of the Earth (" FOE") moved to strike Applicant and NRC Staff's testimony on the struc-tural integrity of safety related structures.1_/ Applicant opposes this motion.

As set forth in the Licensing Board's " Memorandum and Order Confirming Rulings made at Hearing" (January 20, 1984)

(slip op. at 3), motions to strikc testimony were to be received by the Board and parties on February 24, 1984. FOE

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3/ This motion is in addition to FOE's February 13, 1984

" Motion to Dismiss Phila. Elec. Testimony of 2/3/84 on Ability of Safety Related Structures, and Motion for Extension of Time to File Testimony for Anthony / FOE,"

which was denied in the Board's February 17, 1984

" Memorandum and Order Confirming Denial of FOE's Motion to Extend Testimony Schedule and to Strike Applicant's Testimony."

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did not mail. its. motion to strike the Applicant (s and Staff's testimony until the date it was to be received, February 24, 1984. FOE alleges that good cause exists for its lateness because the material constituting the basis of its motion was not received until February 22 and 23, 1984.

This is.a non sequitur.

Discovery in this matter has long since ended. No reason has been given why the materials FOE alleges it needed had not been timely requested. The other reasons why the motion could not be timely filed are not clear from the face of the document. A number of the grounds specified, e.g., nunbers 3-5 and 7, are unrelated to the documents listed.

Even if good cause otherwise existed for FOE's late filing, it should -have sent its pleading to the Board and parties via express mail to ensure next day delivery.

Instead, FOE mailed its motion to Applicant by regular mail, resulting in receipt by its counsel in Washington, D.C. on February 28, 1984, thus prejudicing Applicant by depriving it of its fully alloted time to respond. For this reaso'n alone, FOE's motion to strike should be denied.

In any event, the allegations presented by FOE in its motion to strike do not go to the admissibility of the Applicant or Staff's testimony, but rather, at most, to the weight it should be accorded. The points raised by FOE, to the extent comprehensible, clearly fail to establish that the testimony -is so unreliable as to be entitled to zero

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I weight.2/ In this regard, Applicant respectfully refers the Board to its " Memorandum and Order Ruling on Motions to Strike Testimony" (December 1, 1983) (slip op. at 8), in which Air and Water Pollution Patrol's similar motion to strike Applicant's testimony on contention V-4 was denied for this very reason.

Having failed to make the requisite showing, FOE's motion to strike should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

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[ /)f{I Mark J. Wetterhahn Counsel for.the Applicant March 1, 1984

-2/ For example, item 4 states there are no evaluations of the circulating water pump building. As was previously explained by Applicant's counsel to Mr. Anthony, the pump building is not a safety related structure and thus no evaluation was necessary.

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RELATED CORRESPON{Q{;;p D UNITED STATES OF AMERICA R ~5 p; 7 7 NUCLEAR REGULATORY COMMISSION

.,Pt In the Matter of s ) $C

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to New Contentions Proposed by Friends of the Earth on Onsite Storage of Unirradiated Fuel and Transmittal of Related -

Correspondence," " Applicant's Response to FOE's Motion to Strike Applicant and Staff's Structural Analysis Testimony,"

Cross Examination Plan Regarding Testimony of P.T. Kuo and Norman D. Romney,"* Cross Examination Plan Regarding Testimony of William T. Lefane,"* Cross Examination Plan Regarding Testimony of Charles W. Ferrell"* and " Cross Examination Plan Regarding Testimony of Rex G. Wescott,"*

dated March 1, 1984, in the captioned matter have been served upon the following by deposit in the United States mail this 1st day of March, 1984:

• • Lawrence Brenner, Esq. (2) Atomic Safety and Licensing Atcmic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Ccmmission Commission Washington, D.C. 20555 Washington, D.C. 205S5 Docketing and Service Section

• • .Dr. Richa-d 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

• • Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commiscion Commission Washington, D.C. 20555

ilashington, D.C. 20555

• Cross Examination Plans are only being provided to the Licensing Board

• • Hand Delivery

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I{ h 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 Suite

• • • Mr. Robert L. Anthony 510 North American Building Friends of the Earth of 121 South Broad Street the Delaware Valley Philadelphia, PA 19107 -

106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065 Director, Pennsylvania Emergency Management Agency Mr. Marvin I. Lewis Basement, Transportation 6504 Bradford Terrace and Safety Building Philadelphia, PA 19149 Harrisburg, PA 17120 Phyllis Zitzer, Esq. Martha W. Bush, Esq.

Limerick Ecology Action Kathryn S. Lewis, Esq.

P.O. Box 761 City of Philadelphia 762 Queen Street Municipal Services Bldg.

Pottstown. PA 19464 15th and JFK Blvd.

Philadelphia, PA 19107 Charles W. Elliott, Esq.

Brose and Postwistilo Spence W. Perry, Esq.

1101 Building lith & Associate General Counsel 7 Northampton Streets Federal Emargency Easton, PA 18042 Management Agency 500 C Street, 5.W., Rm. 840 Zori G. Ferkin, Esq. Washington, DC 20472 Assistant Counsel Commonwealth of Pennsylvania Thomas Gerusky, Director Governor's Energy Council Bureau of Radiation 1625 N. Front Street Protection Harrisburg, PA 17102 Department of Environmental Resources 5th Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA 17120

• • • Federal Express .

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g. Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, 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

• l Mdtk J. Wetterhahn O

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