ML20093L352

Response Opposing Intervenor 841012 Motion to Strike. Certificate of Svc Encl.Related Correspondence

ML20093L352
Person / Time
Site:	Turkey Point
Issue date:	10/17/1984
From:	Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-565 OLA, NUDOCS 8410180512
Download: ML20093L352 (5)

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RELATED CORRESFONDENCE UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ffN C In the Matter of ) '84 OCT 18 A11 :33

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FLORIDA POWER & LIGHT COMIrANY ) Docket Nos. 50-250

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(Turkey Point Nuclear ) .W' Generating Units 3 and 4) )

l LICENSEE'S RESPONSE TO INTERVENORS' MOTION TO STRIKE On September 21, 1984, Florida Power & Light Company

( filed a motion to strikc. both the Intervenors' response to FPL's earlier filed Motion for Summary Disposition and the affidavits which Intervenors submitted in support of that response. Thereafter, on October 12, 1984, the Intervenors filed a pleading entitled "Intervenors' Response to the Florida Power & Light Company's Motion to Strike." There they contend, among other things, that FPL's motion to strike the affidavits supporting the Intervenors' opposition to FPL's motion to strike "is inappropriate and premature,"

apparently on the theory that the Board is not legally authorized to rule on the competence of the affiants without first having them put on the stand for a hearing on voir dire. As an alternative to denial of FPL's motion to strike, "Intervenors motion that it be stricken." (p. 3).

It is somewhat unusual for a motion to be buried in a pleading that is simply labelled a response, and it is not clear to us that the Board will in fact expect a response to 84101Bg2 O O PDR AD PDR

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such a motion. However, the NRC's rules do not expressly preclude such a procedure. Accordingly, as a-matter of caution, on behalf of FPL we submit this brief response to the Intervenors' motion to strike.

It is well establiched that the NRC summary disposition rule, 10 CFR S 2.749, is analogous to Rule 56 of the Federal Rules of. Civil Procedure. See, e.g., Alabama Power Company (Joseph M. Farley Nuclear Plant Units 1 & 2), ALAB-182, 7 AEC 210,'217 (1974); Gulf States Utilities Company (River Bend Station, Units 1 & 2) , LBP-75-10, 1 NRC 246, 247 (1975);

Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-34, 7 AEC 877, 878 (1974). Both 10 CFR S 2.749(a) and Rule 56(e) expressly require, in identical language, that affidavits submitted in support or opposition to a motion for summary relief "shall show affirmatively that the affiant is competent to testify to the matters stated therein." It would therefore seem plain that an affidavit which does not make such a showing is subject to a motion to strike. Indeed, careful counsel should do no less.

An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike; and formal defects are waived in the absence of such a motion or other objection.

Even if an affidavit does contain some inad-missible matter, the whole affidavit need not be stricken or disregarded; the court may strike or disregard the inadmissible parts and-consider the rest of the affidavit. Although-the court may disregard inadmissible matter ir. affidavits on its own motion, as it may do at an actual trial, if counsel do not object to inadmissible matters the court may consider m ---m -

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them on the motion for summary judgment.

Careful practice would therefore suggest that a motion to strike the inadmissible portions of the affidavit or the whole affidavit, as the case may be, should be made promptly.

6 Moores Federal Practice (2nd Ed. 1982), 16522 [1] , pp. 56-1330 to 56-1332; footnotes omitted; emphasis added.

Accordingly, if the Board considers Intervenors' motion to strike as properly before it, that motion should be denied.

Respectfully submitted, i '

Harold F. Reis Michael A. Bauser Of Counsel: Steven P. Frantz Newman & Holtzinger, P.C.

Norman A. Coll, Esq. 1615 L Street, N.W.

Steel, Hector & Devis Washington, D.C. 20036 4000 Southeast Financial (202) 955-6600 Center Miami, FL 33131 Attorneys for Florida Power &

(305) 577-2800 Light Company Dated: October 17, 1984 J

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7  : UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION

BEFORE'THE' ATOMIC" SAFETY AND LICENSING BOARD

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In the Matter of .)

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Docket Nos. 50-250-OLA-1 FLORIDA PCWER & . LIGHT COMPANY. ) -:

-)' 50-251-OLA (Turkey Point Nuclear- )

Generating Units 3 and 4) )

CERTIFICATE OF SERVICE I hereby certify that a-copy.of the attached " Licensee's Response to Intervenors' Motion to-Strike" was served on each of the following by deposit in the United States mail, first class postage prepaid and properly addressed, on the date shown below.

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( Dr. Robert M. Lazo, Chairman (i Atomic Safety and Licensing Board Panel L U.S.'Noclear Regulatory. Commission Washington, D.C. 20555 Dr. Emmeth A. Leubke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission l Washington, D.C.. 20555 Dr. Richard F. Cole Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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

' Attention: Chief', Docketing and Service Section (original plus two copies)

Colleen P. Woodhead, Esq.

U.S. Nuclear Regulatory Commission Office of Executive-Legal Director Waahington, D.C. 20555

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Mitzi A. Young, Esq.

U.S. Nuclear Regulatory Commission Office of Executive Legal Director Washington, D.C. -20555 Norman A.-Coll, Esq.

Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida- 33131-2398 Martin H. Hodder,-Esq.

1131 N.E. 86th St.

Miami, FL 33138 l

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Ha'rbl~d F. Reis Newman & Holtzinger, P.C. )

1615 L St., N.W. j Washington, D.C. 20036 (202) 955-6600 Dated: October 17, 1984 i

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