ML082750564

Fpl'S Answer in Opposition to Saporito Energy Consultants' Motion to Strike

ML082750564
Person / Time
Site:	Turkey Point
Issue date:	10/01/2008
From:	Fernandez A Florida Power & Light Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-OLA, 50-251-OLA, ASLBP 08-869-03-OLA-BD01, RAS 1204
Download: ML082750564 (5)

Text

October 1, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Florida Power & Light Company ) Docket Nos. 50-250

) 50-251 (Turkey Point Units 3 and 4) )

FPLS ANSWER IN OPPOSITION TO SAPORITO ENERGY CONSULTANTS MOTION TO STRIKE INTRODUCTION Pursuant to 10 C.F.R. §2.323 (c), Florida Power & Light Company (FPL) hereby opposes the motion to strike by Saporito Energy Consultants, Thomas Saporitos alter ego, (hereinafter Saporito) filed on September 27, 2008. See Petitioners Opposition to FPLs Motion to Strike Saporitos Reply and for Sanctions (Saporitos Motion) at 5. Saporito has not complied with the procedural requirements for filing a motion and his request that the Board strike portions of FPLs filing is meritless. Therefore, Saporitos motion must be denied.

DISCUSSION The procedural history of the instant case is known to the Board and FPL does not herein recount it. 1 In response to FPLs Motion, Saporito filed a timely reply wherein he impermissibly filed a cross-motion to strike portions of FPLs Motion filed September 26, 2008. See Saporito 1

For a more detailed background of this case and the decades-long vexatious litigation endured by FPL from Saporito please refer to FPLs Motion to Strike Saporitos Reply and for Sanctions (Sept. 26, 2008) (hereinafter FPLs Motion).

Motion at 5. Saporito failed to follow the Commissions strict requirements for the filing of Motions. See 10 C.F.R. §2.323 (b). The Commissions rules unambiguously state that [a]

motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. Id. (emphasis added). In the instant case Saporito failed to contact FPL or the NRC Staff prior to filing his motion. Consequently, the language of the rule, on its face, removes any discretion from the Board to entertain Saporitos Motion and requires its dismissal. See id. (stating that a motion must be denied). In addition to the plain text of the rule, the Board should also be mindful that in the instant case undersigned counsel made Mr.

Saporito expressly aware of the requirement that parties try to resolve their differences prior to filing motions with the Board. See FPLs Motion at 2 n.2. Therefore, in light of the Commissions clear procedural requirements for the filing of motions and Saporitos awareness of such requirements, Saporitos Motion must be rejected.

If, despite the Commissions clear procedural requirements for the filing of motions, the Board entertains Saporitos Motion, the Board should deny the motion as lacking any merit. Saporitos Motion demands that portions of FPLs Motion be stricken because FPL argues matters that should be reserved for an evidentiary hearing. See Saporito Motion at 5 (requesting that pages 12-19 of FPLs Motion be stricken). A close examination of the pages Saporito requests the Board to strike from the record shows that these pages address the procedural defects of Saporitos Reply. See FPL Motion at 12-19 (explaining that Saporito may not raise new arguments in a reply and enumerating the new arguments raised in the reply).

Clearly, FPL did not raise any issues that are relegated to an evidentiary hearing and, consistent 2

with the Commissions Rules of Practice, sought to address the procedurally defective reply filed by Saporito. Therefore, Saporitos Motion must be denied.

CONCLUSION For the reasons stated above, Saporitos Motion must be denied.

Respectfully Submitted,

/signed (electronically) by/___________

Antonio Fernández FLORIDA POWER & LIGHT COMPANY Law Department 700 Universe Boulevard P.O. Box 14000 Juno Beach, FL 33408-0420 Phone: (561) 304-5288 Fax: (561) 691-7135 E-mail: antonio.fernandez@fpl.com Dated: October 1, 2008 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Florida Power & Light Company ) Docket Nos. 50-250

) 50-251 (Turkey Point Units 3 and 4) )

CERTIFICATE OF SERVICE I hereby certify that copies of FPLS ANSWER IN OPPOSITION TO SAPORITO ENERGY CONSULTANTS MOTION TO STRIKE dated October 1, 2008, have been served upon the following persons by the Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 William J. Froehlich, Chair Marcia Simon, Esq.

Administrative Judge E-mail: mjs5@nrc.gov E-mail: wjf12@nrc.gov Lloyd Subin, Esq.

E-mail: lbs3@nrc.gov Thomas S. Moore OGC Mail Center Administrative Judge E-mail: OGCMailCenter@nrc.gov E-mail: tsm2@nrc.gov Michael F. Kennedy Administrative Judge E-Mail: mfk2@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov

Saporito Energy Consultants Post Office Box 8413 Jupiter, Florida 33468-8413 Thomas Saporito E-mail: saporito3@gmail.com

/signed (electronically) by/_______

Antonio Fernández Dated at Juno Beach, Florida this 1st day of October 2008 2