ML20023D934
| ML20023D934 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/20/1983 |
| From: | Posner P PARENTS CONCERNED ABOUT INDIAN POINT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8306060180 | |
| Download: ML20023D934 (3) | |
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UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION 00tETjD ATOMIC SAFETY AND LICENSING BOARD
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33 aga-3 M134 1i In the Matt'er of Dock'et Numbers 501 47-SP 2
CONSOLIDATED EDISON COMPANY 50-286-SP OF NEW YORK (INDIAN POINT UNIT 2)
May 20, 1983 POWER AUTHORITY OF THE STATE OF NEW YORK (INDIAN POINT 3) j PARENTS CONCERNED ABOU'T INDIAN POINT'S REPLY TO LICENSEES' MOTION FOR RECON-SIDERATION OF MAY 9, 1983 The Applicable Law Prohibits Admission of this Deposition into Evidence 1.
Federal Rules of Civil, Procedure 32 (a) (2) does not apply to Interested States in this proceeding.
Rockland County is not an adverse party in this proceeding.
As a governmental agency and an interested state, its role is to represent its citizens and not to necessarily oppose the licensees.
The licensees themselves point out that Fed R Civ P. 32 (a) (2) sometimes allows.the use of a deposition of an adverse party for any purpose.
Since McGuire was a witness of an interested state and not an adverse party, his del;asition does not fall under this provision.
2.
The Board can, in its discretion, refuse to admit the deposition, as it already did at the hearings.
Even if the deposition did meet the " adverse party" requirements of Fed R Civ P. 32 (a) (2), which we contend it does not, the decision 7
to admit the deposition lies within the discretion of the Board.
The licensees can not insist it be admitted as a matter of right.
hh 8306060100
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" Th$ Board, in its discretion, may refuso to admit the deposition as it did here during the hearings in the presence of all parties affected.
3 To admit the deposition of McGuire would allow it to be used against Parents and other intervenors who were no't represented when the deposition was taken.
Parents and all other intervenors besides NYPIRG and Westbranch were not present at the deposition, nor did Parents have any notice that the deposition would be in lieu of testimony.
Admission of the deposition as evidence would be directly outside the purpose allowed by Fed R Civ P. 32 (a) (2).
4.
The relevancy of the contents of the deposition has no bearing on its admissibi. y.
The licensees spend half their motion quoting McGuire's deposition out of context in order to convince the Board of its relevancy.
We.
submit', however, that the relevancy of the deposition. is not a basis for its admission under Fed R Civ P. 3R (a).
l Much emphasis is placed on the fact that Rockland County's non-compliance is one of the major deficiencies found by FEMA in its April 15,1983 report.
However, the subject matter of the deposition does not alter the fact that it is not admissible as evidence under Fed R Civ P 32 (a), which makes no concessions to the possible relevancy of a deposition.
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The deposition should be excluded to be consistent with previous Board rulings.
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l On April 26 the subject came up of stipulating testimony offered l
by Kathy Toscani on behalf of the intervenors regarding observation of the March 9, 1983 exercise.
Ms. Toscani had been deposed by the
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deposed by the Power Authority on April 22 but was unable to take i
the stand during the week of April 25 s-
' ' The Board struck Mrs. Toscani's testimony on the grounds that she was not present for cross-examination (T.14623).
The licensees objected to the use of Ms. Toscani's deposition for the purpose of completing the record in these proceedings.
Representatives of Parents did not have notice of Mr. McGuire's deposition, we did not attend, and intervenor representatives who did attend did not question Mr. McGuire with the understanding that the depositbn would be used in lieu of testimony.
l CONCLUSION The Board should not alter its original position.
The deposition is inadmissible as evidence under Fed R Civ P. 32 (a).
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Respectfully submitted.
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i Pat Posner Parents Concerned About Indian Point p P. O. Box 125 id Croton-on-Hudson, New York 10520
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