ML20012E801
| ML20012E801 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/02/1990 |
| From: | Jonas S MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10188 LBP-90-01, LBP-90-1, OL, NUDOCS 9004060331 | |
| Download: ML20012E801 (48) | |
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!< U$NHC j UNITED STATES OF AMERICA h NUCLEAR REGULATORY COMMISSION 90 APR -3 P1 :07
" ATOMIC SAFETY AND LICENSING- APPEAL BOARDfICE OF SECRETARY DOCK [IlNG A SE.WICI.
Before Administrative Judges: BRANCH G. Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A. Wilber
)
In'the Matter of. ) Docket Nos. 50-443-OL
) 50-444-OL i PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and'2) ) April 2, 1990
)
~ RESPONSE OF THE MASSACHUSETTS ATTORNEY GENERAL TO APPLICANTS' REQUEST FOR d
SUMMARY
AFFIRMANCE OF-LBP-90-01 Applicants'(now " Licensees") request summary affirmance of ; i the Licensing Board's' disposition of certain EBS contentions ! h filed by the Massachusetts Attorney General-(" Mass AG"). / Licensees' March 20, 1990 Brief on Appeal of LBP-90-1 at 9.
. Applicants base this request on their claim that:
j I 'The facts now available suggest that MAGs (EBS] claims were l grounded.in misrepresentation and thereafter preserved by apparent concealment and deception.1/ E g. J
. Licensee's Brief-at 8. This-request should be denied as having !
r . i l- ll/ . Applicants' first made their false and contumacious ! allegations concerning the integrity of attorneys representing 1
-the Mass AGfs office ~1n their February 13 Response to " Mass -
L AG's.[ February 1,-1990] Motion to Reopen the Record." The Mass ! AG was' preparing a substantive rebuttal to these groundless charges when-this Board ruled on-that Mass AG Motion on February 26,- 1990. Applicants have now repeated their allegations in their March 20 Brief. , 9004060331 900402 i PDR ADOCK 05000443 hg) 3 G PDR m ; e !
7 6 no. basis whatsoever and the allegations set forth in Licensees' > Brief at 2-3,-6 n.23, 7'n.28, 8-9 and 24 concerning the actions , of the Mass AG should be stricken. In addition to the accompanying affidavits of Leslie Greer and John Traficonte, the Mass AG responds to these charges as follows:
- 1. Applicants charge that'the Mass AG filed an unsigned affidavit of Royce Sawyer.on October 30, 1989 which they '
" attributed" to Sawyer:
In this first (October 30) motion, MAG represented that the accompanying unsigned affidavit attributed to Mr. Sawyer > had.his " authorization and approval." In fact. Mr. Sawyer did not acorove the affidavit in the form it was filed. . Licensees' Brief at 2 (emphasis supplied). In support of the underscored sentence, Applicants cite only to " Sawyer Statement," a November 17, 1989 statement attached as Exhibit A, to their March 20 Brief. The Sawyer Statement contains not a word about the circumstances surrounding the October 30 filing. As the Greer Affidavit makes clear, Sawyer discussed- ' at length the matters set forth in the October 30 affidavit with Greer on' October 20 (Greer Aff't at 112); reviewed a draft version of the October 30 affidavit between October 26 and October 27 (Greer Aff't at 115) and expressly approved the L contents of that affidavit and the fact that the Mass AG would Lfile it without first obtaining his signature because of his medical leave (Greer Aff't at 116). Applicants' allegation is facially unfounded and false. l 2. Applicants charge that Sawyer " repudiated" his l l affidavit and that after this alleged " repudiation" the Mass AG "may have misled the Licensing Board as to why the October 30 L o-
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motion'was withdrawn." Licensees' Brief at 3 n.11. -Further, the Applicants allege that the Mase AG' continued to= file the' Sawyer affidavit after it was " repudiated" and after Sawyer was promisedsit would be withdrawn. Id. at 3, 7 n.28. These charges ~are false,
- a. Sawyer never repudiated his affidavit. He repeatedly approved its contents. Greer Aff't at 1116, 23,-25; Traficonte Aff't 15. The only substantive ~ concern that he ever expressed was that New Hampshire Yankee might have some means to activate the EBS-in the Merrimac Valley Operational area that was not set out in the SPMC and was unknown to him because he-had not worked on seabrook emergency planning for tuo l years. This concern is evidenced both in.the memorandum he wrote to Robert Boulay, dated November 6, 1989 and in the conversations he had with Leslie Greer on November 3 and November 7,- 1989 and with John Traficonte on November 8, 1989.
See Greer Aff't, 126; Traficonte Aff't, 15. In his memorandum to Robert Boulay, attached as Attachment A to Licensees' Brief, he stated: I am also concerned with the wording in paragrapa 4 that states "there does not exist any provision.for insuring that notification is made to the public in the Massachusetts emergency planning zone for Seabrook Station within the 15 minutes required by NUREG 0654, FEMA-REP-1, Revision 1 Appendix 3." Because I-(and the agency) have not been authorized to plan with New Hampshire Yankee, this agency.does not have information relative to emergency-communications from New Hampshire Yankee to radio stations in Massachusetts. After careful deliberation, I must state that I am not in complete agreement with the referenced statements in paragraphs 3 and 4 and that there nav Le eculoment in olace to activate an EBS radio station in the Merrimac Vallev pperational area by New Hampshire Yankee. 1 . (Emphasis added.) It is clear both from his_ statement in the November 6, 1989 memorandum, as well as his statements to Leslie Greer.and John Traficonte as set out in their above referenced affidavits, that Sawyer's concerns with the atfidavit were based upon his fear that there might be a communication link possessed by NHY but unknown to him. His concerns were not that statements in the signed, corrected affidavit were untrue. I
- b. The Mass AG's communication to the Licensing Board on the morning of November 8 as set out in the December 1, 1989 Traficonte Affidavit at 14 (reciting the substance of a telephone conversation between Traficonte and E Robert Pierce) was accurate and accurately set out in the- !
l December 1 Traficonte Affidavit. Sawyer that morning had twice i confirmed that the statements in his affidavit were true and j that he nonetheless no longer wanted to be involved in the proceeding. March 22 Traficonte Affidavit (attached here) at -{ i
- 15. Indeed, Traficonte had essentially the identical ~
conversation with Applicants' Attorney Dignan'concerning Sawyer's further involvement just minutes before his conversation with Pierce. Traficonte Aff't at 16.
- c. The Mass AG never promised that he would not file the affidavit Sawyer signed on November 3. Instead, the Mass AG had promised to withdraw the vnsioned affidavit and to L withdraw Sawyer as an expert witness on which the Mass AG would i
rely. Traficonte Aff't at 15. The filing of the signed Sawyer affidavit on November 9, 1989 to establish the good faith l
- c. .
efforts made by the Mass AG to timely obtain an expert in no way violates this promise.
- 3. Applicants charge that the Mass AG refused to make changes in the Sawyer affidavit after November 3, 1989.
Licensees' Brief at 2-3. This is false. The Mass AG did not object to the'particular changes that Sawyer sought on November 7, 1989. The changes were immaterial to the thrust of the affidavit and EBS motion. Indeed, the changes proposed by Sawyer in the rapidfaxed memo to Leslie Greer dated November 7, i 1988 had already for the most part been entered on the Mass AG's word processor when she spoke to Sawyer late on November 7, 1989. Greer Aff't at 126. Those changes in general went into the affidavit of Robert Boulay when he agreed to furnish the affidavit'on November 8, 1989.A! On that date L Boulay already knew the details of the affidavit from the ! meetings he attended on October 30, 1989 and November 3, 1989. ; i What was troubling to the Mass AG was the fact that changes l l would oe made to an already-filed affidavit which could give s l rise to a claim that the date of the changes and nQt the date of the original submission was the relevant date for any
" timeliness" analysis.
Applicants were under a deadline to l, file a response to the October 30 motion and entitled to have a signed affidavit and statement of qualifications prior to making their response. 2f The Boulay Affidavit of November 9, 1989 reflects the changes proposed by Sawyer in his November 7 memo. These slight and inconsequential changes are noted in footnote la of the Mass AG's November 9 Motion and are so insignificant that it appears the Applicants have failed to notice them. J
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- 4. Finally, Applicants charge that certain relevant information was " suppressed" by the Mass AG regarding his EBS
-motions. Licensees' Brief at 6'n.23; 24. Just how baseless this claim actually is can be seen by examining the facts allegedly " suppressed."
the fact,' suppressed by MAG, that a dedicated line is already in place running from Licensees to MCDA, while a-dedicated radio link exists between MCDA headquarters and f' the state's lead EBS station, WROR. See Sawyer Statement, quoted at supra note 8; see also Massachusetts Attorney. General's Second Sunclemental Resoonse to NRC Staff's First Set of Interroaatories and First Reauest for Documents (Dec. 19, 1989 (sic)) at 9. Licensees' Brief at 6 n.23. Assume first that the fact the Mass AG is alleged to have
" suppressed" in his EBS pleadings is the existence of a l dedicated-line between Seabrook Station and the MCDA headquarters-in Framingham, Massachusetts. Any Mass AG effort to " suppress" this fact would be curious, at best, since it is obviously within the knowledge and control of the Applicants and if they considered it relevant they could inform the i
Licensing Board of it in response to the Mass AG's EBS motions. Review of Applicants' November 15 Answer to the Mass
'AG's November 9 EBS Motion and the accompanying materials discloses'that the Applicants did not deem this " suppressed" information relevant enough to even mention to the Licensing Board.
Assuming in the alternative that the fact the Mass AG is alleged to have " suppressed" is the existence of a dedicated link between MCDA headquarters in Framingham and the state's lead EBS station, WROR, the analytical result is even more
= a
revealing of Applicants' willingness to baselessly attack the integrity of the Mass AG.. Put simply: the fact of this link ! l Was exeressly disclosed by the Mass AG. Not only did the: October 30 EBS Motion (at 15), the October 30 Sawyer Affidavit '
-(at 14), the November 9 Motion (at 17) and the Boulay Affidavit (at 14) all indicate that WROR does provide a path into the EBS for.the Merrimac Valley,M but the existence of a link between MCDA in Framingham and WROR was exeressiv disclosed by the Mass AG in answer.to an NRC Staff discovery request which the ADolicants cite in their Brief. In December 1988 (and np1 December 1989 as significantly miscited by the Applicants);the Mass AG had stated:- j Dedicated radios are located in the following Civil Defense
. Area locations for interface with the Emergency Broadcast 1.
System in Massachusetts: State Headquarters to. radio 1 station WROR, Boston. { Mass AG's December 19, 1988 Second Supplemental Response to NRC Staff's First Set of Interrogatories and First Request for Documents, at 9. Thus, the Applicants allege that the Mass AG- =i
" suppressed" a fact and in support of this allegation, Applicants cite and rely upon the disclosure of this fact by !
'the Mass AG.
[ 2/ Licensees' Brief at 24 appears to assert that this is the suppressed fact at issue. Applicants also assert that Sawyer "tried to insert" this fact. Id. In support of this allegation ' Applicants cite only to the November 17 Sawyer Statement. That Statement in turn nowhere indicates that Sawyer tried to
" insert" the fact that "WROR does provide a path into the EBS system in-the Merrimac Valley area." Sawyer Statement at 2.
Not only did the October 30 Sawyer Affidavit already state this fact-(and so it would not need to be " inserted") but the November 6 Sawyer Memorandum referenced in the Sawyer Statement at 2 was never provided to the Mass AG by Sawyer. Greer Aff't at 126; Traficonte Aff't at 19. . J
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.- -)
i Applicants' attacks on the Mass AG'are. baseless. Their request.for~ summary' affirmance should be denied and'their '! contumacious statements regarding the actionsLof the Mass AG should be stricken. Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS ; JAMES M. SHANNON M e@ien 7. Jonas Deputy Kttorney' General , Chief, Public Protection Bureau- r Department:of the Attorney General-One Ashburton' Place Boston, MA_02108 (617) 727-2200-Dated: April 2, 1990 i b l
yy - ~ .a ; p g'.. r jr I , , UNITED STATES OF AMERICA y NUCLEAR REGULATORY COMMISSION t ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges: G. Paul BollwerkiIII, Chairman Alan S..Rosentnal Howard A. Wilber
)
-In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL
.PUBLIC SERVICE COMPANY ) .
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and 2) ). March 22, 1990-
)
AFFIDAVIT OF JOHN TRAFICONTE 1 I, John Traficonte, do make oath and state: L 1. I am an Assistant Attorney General in the Commonwealth f of Massachusetts and Chief of the Nuclear Safety Unit in the Department'of the Attorney General. I: had and have supervisory i K authority over and-responsibility for all materials and pleadings. ' i fprepared by the Massachusetts Attorney General (" Mass-AG") irr the- l l Seabrook proceeding. This affidavit was written on February 22, i typed in virtually final form on February 26 and signed on March j L 22, 1990. ' 1.
- 2. 1 authorized the filing on October 30,-1989 of an !
unsigned affidavit of an individual named Royce Sawyer, an employee of the Commonwealth. I was informed and believed at that time (as I do now) that Mr. Swayer was familiar with the i
a u>w 1 j
.. 1 contents of that affidavit, had supplied the information set
~
.forth in'it, had verified the accuracy of that information and had otherwise taken all steps necessary, except signing, to.make I L
- the statements set forth in that October 30 affidavit his 1
. testimony. I authorized its filing before it could be signed because it was (and is)-my judgment that all filings in the l- Seabrook proceeding by the Mass AG are scrutinized in great r detail regarding timeliness. Further, I was and am aware of occasions in this proceeding when the NRC staff has filed unsigned affidavits of Staff experts, following these filings up shortly thereafter with signed signature pages. To the extent this practice has been used without eliciting comment by the adjudicatory Boards, I reasoned that a delay in the filing of-the Sawyer affidavit (and the October 30 Motion which it supported) due solely to the ministerial act of obtaining a signature on an otherwise-prepared and approved affidavit (particularly when the affiant istan-employee of the Commonwealth) would be held to be inexcusable and thus work to negate the very purpose of preparing the pleadings in the first place.
- 3. Between October 30 and November 3, 1989 I made daily inquiry of Ms.- Leslie Greer as to when a signed Sawyer affidavit would be filed. I was informed on Friday November 3, by Ms.
Greer that the affidavit was signed, that handwritten changes had
'been made and initialed by Mr. Sawyer, that it was too late on Friday to file the affidavit, that a resume still needed to be prepared and that the resume and signed affidavit would be filed on Monday, November 6, 1989.
1 2 e i On-Tuesday afternoon, November 7,. I was told by Ms. 4. Greer that Mr. Sawyer now requested that additional changes be_ made in his affidavit. lE told Ms.Greer that we would'make no further changes beyond the handwritten and initialed changes made 1 by Mr. Sawyer on November 3 when he signed the affidavit. I told her to communicats that fact to Sawyer and to inform him that if f ne continued to make changes we would simply withdraw his affidavit and the motion it supported. Late that day, sometime after 5:00 P.M. Ms. Greer informed me that Mr. Sawyer did want to L make further changes. 1
- 5. On the. morning of November 8, 1989, sometime between 9:15 A.M. and 10:00 A.M. I. spoke with Mr. Sawyer by telephone.
It was and is the only contact I have ever had with him. After describing my role as Chief of the Nuclear Safety Unit and my relationship to Ms. Greer, I asked him whether any of the statements made in the affidavit he' signed on November 3 were untrue. He' asserted that he had concern regarding the capacities of New Hampshire' Yankee. He stated that_he was simply not s knowledgable about these capacities and, therefore, was uncomfortable with the statement in the November 3 affidavit that read:' While-in theory in the event of a radiological emergency at Seabrook Station, the Governor could activate the EBS on a statewide _ basis by activating it'through WROR in Boston,_ there does not exist any provision for insuring that notification is made to the public in the Massachusetts emergency planning zone for Seabrook Station within the 15 minutes' required by NUREG 0654, FEMA-REP-1, Revision 1, Appendix 3. Sawyer stated to me that his concern with this statement was that he was unaware of whatever capacities New Hampshire Yankee
-3_
O ', 1 y il had which might enable it to meet the 15 minute require 1uent.
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I stated that he was attesting in this statement (and in the rest of paragraph.4)-to the abilities of the Commonwealth to meet the 15 minute requirement. I asked him directly whether he knew if the present capacity of the EBS system in the Seabrook
. operational area if activated by the commonwealth insured a 15 minute notification. He told me that he knew of no tests, no
'I other exercises and no other information that insures such a 15 i minute notification. But he repeated again that he was not.
aware of what New Hampshire Yankee's capabilities are. For the ' second time, I asked Sawyer whether any of the statements set forth in his November 3 affidavit were untrue. He stated that they were not untrue but that because he was uninformed about
. i New Hampshire Yankee's planning activities, he did not want to y be involved further in the proceeding. He stated to me that in-light of the position taken by the Massachusetts civil Defense-l' Agency (which has refused to work with New Hampshire Yankee) he did not want to get involved in the proceeding. At this point, 1
I told Sawyer that I had filed his affidavit and represented him as an expert on the capacities of the Massachusetts EBS. I told him that I certainly did not want an unwilling expert ' witness and that I would withdraw his affidavit and the motion it supported and that he would no longer be represented as an l= expert-witness on which the Mass AG would rely.
- 6. After-this conversion, I conferred with Ms. Greer L
concerning my conversation with Sawyer. Ms. Greer told me that Robert Boulay, Sawyer's superior, had indicated that he would l l
provide expert testimony about the-Massachusetts EBS. I then called Thomas Dignan, an attorney representing the Applicants,
'at or around:10:30 A.M..on November 8 and informed him that the ,.
-Mass AG's affiant Sawyer no longer wanted to be' involved in the L
. proceeding, that therefore the October 30 motion was being withdrawn and that Sawyer's superior was going to sign a virtually identical affidavit that day or the next in support of.a virtually identical motion. Mr. Dignan told me that he
'was going to call the Licensing Board and try to arrange an immediate telephonic conference concerning these events.
- 7. I then authorized the withdrawal of the Mass AG's October 30 Motion, which withdrawal was filed by telefax.- I then called Robert Pierce, Esq., told him of my conversation with Mr. Dignan and informed him of the fact that the Mass AG's .
affiant Sawyer no longer wanted to be involved as a witness in this proceeding.
- 8. I have rehd a document headed Statement of Royce N.
Sawyer dated November 17, 1989 and attached as Exhibit A to Applicants' February 13 Response to " Mass AG's Motion to Reopen the Record." In this " Statement" Sawyer asserts: I was informed by telephone.on November 7, 1989, by Mr. John Traficonte [ sic] of the AG's office, that my signed document would not be submitted. My one and only contact with Sawyer was on November 8, 1989. Sawyer said to me that he understood that his affidavit had
, already been filed on October 30, unsigned. As set out above, after Sawyer told me he did not want to be involved further, I told him I would withdraw his affidavit and the motion it
., ~ ;
m.. I supported, as I did. I told him he would no longer be j l represented as an expert witness for the Mass AG. I never told i
- Sawyer that I would not file his signed affidavit of l
November 3,. for example, to establish the timeliness of the 1^
- November 9' filing.
- 9. I have read the Sawyer memorandum to Robert Boulay
- dated November 6, 1989 and attached to the Sawyer " Statement." t I had never seen this document before February 14, 1990.. At no time during my conversation with Sawyer on November 8 did he indicate expressly or by implication that he felt or believed himself to be " pressured into signing ( ) the affidavit without that legal advice," or that his agency should " recall" the affidavit. Indeed, he expressly affirmed to me that the statements in the affidavit were true.
- 10. I have reviewed another Sawyer memorandum dated November 7, 1989 and also uttached to the Sawyer " Statement."
I saw this document initially on November 8, 1989 in a telefaxed from end I reviewed it prior to my conversation with I also went over this document with Sawyer on November 8. Sawyer during that conversation. The only change of.any significance at all was line item No. 7 which reads:
- 7. Page 5 paragraph 4 should be eliminated in its f entirety.
As discussed at length above, Sawyer asserted that this change was necessary because Sawyer was not familiar with the , capabilities of New Hampshire Yar.kee, not because Sawyer
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.. _. ? ' ,
- z. :
l believed the statements about the timeliness of state-initiated ' EBS notification in the Seabrook area in light of present . planning are untrue. When this distinction was made clear to Sawyer, he stated that he did not want to be further involved. -i SIGNED UNDER THE PAINS OF PER;JRY THIS'22nd DAY OF MARCH, 1990. M / A / ve .
/ John Trhfiponte 1826n J
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id- ", 4 UNITED STATES OF-AMERICA. NUCLEAR REGULATORY COMMISSION 1 ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges: G. Paul BollwerkLIII,' Chairman-Alan S. Rosenthal Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL'
) 50-444-OL
-PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and 2) ) April 2, 1990
)
AFFIDAVIT OF LESLIE B. GREER I, Leslie B. Greer, hereby depose and state:
- 1. I am an' Assistant Attorney General in the Commonwealth of Massachusetts and assigned to the Nuclear Safety Unit in the .;
Department of the Attorney General.
- 2. My first involvement with any issues concerning the >
Massachusetts Emergency Broadcast System ("EBS") was in November, 1988. The EBS is a communication system comprised of independent broadcasters that can be used by various authorities to transmit emergency information. At that time there were concerns about whether the New Hampshire Yankee , Offset Response Organization ("ORO") would, or could, activate the.EBS on'its own without the authorization of the Governor of Massachusetts. At that time it was known that NHY had letters of agreement with the EBS, with WHAV (AM)/WLYT (FM) ("WLYT"), and-WCCM (AM)/WCGY (FM) ("WCGY") to provide services in the
~
r event' of'a radiological' emergency at Seabrook Station. To 'f
. ascertain-how those three entitien.would respond if the ORO
. sought to activate the EBS without the authorization of the Govarnor, an investigator from the Public Protection Bureau was assigned to interview representatives of those entities. I accompanied that investigator, Arthur Lonergan on those interviews in early January, 1989. Prior to going on those
-interviews, I called up the Massachusetts Civil Defense Agency
("McDA") and obtained a copy of the Massachusetts EBS Operational Plan to learn how the EBS works. After reading the plan booklet, I went out to MCDA in Framingham, Massachusetts- ' and spoke to Royce Sawyer, the MCDA Communications Officer, to make sure I understood how the EBS hardware works.
-The interviews with Douglas Rowe, Co-Chairman of the EBS, L WLYT, *nd WCGY all took place on January 5, 1989. The first i interview was with Douglas Rowe, Co-chairman of the EBS. The l- interview was conducted in Mr. Rowe's law offices located in.
Marlboro, Massachusetts. .During that interview Mr. Rowe i indicated that the EBS had recognized New Hampshire Yankee as a
" responsible organization" as that term is used in the Massachusetts EBS Operational Plan. However, Mr. Rowe stated that while the EBS had recognized New Hamphsire Yankee, the ultimate decision as to whether an emergency message originating from New Hampshire Yankee would be broadcast on'the EBS was up to the discretion of the local EBS stations. The local EBS stations are those stations that receive emergency messages from other EBS stations higher up in the activation chain. Mr. Rowe said that the.EBS was.a voluntary association 1
and that each local EBS station maintains authority and control ' over decisions concerning what to include in its programming.
- 3. The'next interview was with William Gould, the station manager of WLYT. IIis position on the issue was that although WLYT could ' not itself trigger the EBS, WLYT would carry an ,
emergency message that originated from NHY regardless of whether the Governor authorized the activation of the EBS. The l third interview on that day took place at the offices of WCGY. Present were John Bassett, the manager of WCGY and, the station l engineer, Joseph Sousice. At the outset of the interview Mr. Bassett' indicated that he was aware that we had spoken that morning with Douglas Rowe. He said that he had known Doug Rowe I for several years since both had been in the broadcast business for many years and had been members of industry associations as well as the EBS. During the course of the interview Mr. Bassett' deferred several specific questions concerning the activation of the EBS to Joseph Sousice. The station engineer. and Mr.LBassett agreed that WCGY would not activate the EBS without the authorization of the Governor or one of the other L three authorized initiators of the Massachusetts operational Plan. They also indicated that Gary Catapano had recently been l 1~ in touch and was due to talk with them within the next week. 1 about installing communications equipment to effectuate WCGY's letter of agreement with NHY.
- 4. During none of those visits did Arthur Lonergan or I encourage Douglas Rowe, William Gould, or John Bassett to back
'yd 3
out of or cancel their agreements with NHY. The purpose and substance of the interviews was limited to-a fact gathering function to ascertain what the entities would do if the EBS was -; activated in a radiological emergency and the Governor refused to authorize the activation of the EBS. Indeed, within'the time frame of those visits none of the entities terminated ' their letters of agreement with NHY. A follow-up telephone call to WCGY in late January 1989 confirmed that Gary Catapano had~ spoken to the station and arrangements were being made to complete the. hardware link with NHY. L 5. I had no_further contact with Douglas Rowe, or any ' representative of WLYT, or WCGY until October, 1989. On or L about October-16, 1989 Nan Pickard, a paralegal with the P Nuclear. Safety Unit'came to my office and stated that a ' telephone call from Douglas Rowe had' been referred to her. He was calling-to learn the address of the Nuclear Regulatory Commission so that he could mail to appropriate officials at the Commission a copy of a letter he had written to_NHY. Ms. l y Pickard stated that she was referring the matter to me to return Mr.-Rowe's phone call because she knew that I'had some' , involvement-with issues pertaining to the EBS at an earlier point in 1989.- She stated that Mr. Rowe had indicated that the EBS was terminating its letter of agreement with New Hampshire Yankee. She told me that Mr. Rowe had said that he had discussed the matter with WCGY and would rapidfax to our office a copy of his letter to NHY.
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6.. After the fax copy of the letter arrived, I attempted reach Mr. Rowe at his office in Marlboro, Massachusetts. However, he was not in the office. I left a message with my
; name, phone number, and the NRC addresses and asked him to call me.back. Because I was unable to reach Rowe, I called John .
Bassett at WCGY since I knew that the EBS for the Seabrook area I was activated through WCGY and Rowe had talked about the matter , with John Bassett. At that point I wanted to verify whether it f was true that the EBS was terminating its agreement with NHY and why'that termination was taking place. Mr. Bassett told me that he had spoken with Doug Rowe on the matter, and knew that Rowe was sending a letter to NHY terminating the EBS letter of agreement.with NHY. He told me that it was his understanding . that Rowe was terminating the letter of agreement because NHY l had not lived up to its commitment to furnish the EBS stations L L p in the Merrimac Valley, including WCGY, the equipment that'NHY had committed to provide. Mr. Bassett said that although Gary Catapano had come out and talked to WCGY about arranging to install a dedicated phone line and other communication ( equipment, NHY had never followed up on that and the-equipment was never installed. i When I asked Mr. Bassett whether EBS's withdrawal also meant that WCGY was withdrawing, Mr Bassett said that he had not yet fixed on a course of action but planned to talk to Douglas Rowe further on the matter. He expressed a concern that if he did not withdraw, the NRC would be under a false impression. That false impression was that NHY could promptly l. p 4 activate the EBS through WCGY when in reality it could not , because of'the missing phone lines, fax equipment, etc.. Mr. , Bassett told me that although WCGY has eight telephone lines into the station at times those lines are'all busy, particularily when there is a fast-breaking news story. He ' said that at night the situation is exacerbated because there are-only two phone lines into the part of the studio that is operated on a 24 hour basis. He was concerned that once word of an accident at Seabrook got out, WCGY's phone lines would be crammed with callers and NHY would not be able to get through to provide any emergency messages to the radio station. He r said that he would not want to be in the position of having i people rely on the representation that WCGY had the capability ; of carrying emergency messages when in reality it might not have that capability if the phones lines became full. When I asked him what WCGY would do if in response to Doug g Rowe's letter NHY came forward and agreed to install the promised equipment, he said that he did not know but would probably follow Doug Rowe's lead in the matter. At the L
. conclusion of the call I asked him to let our office know what ,
he planned to do after he had had an opportunity to talk to Doug Rowe. 1 7. On' October 17, 1989 I spoke to Douglas Rowe by - telephone. I asked him whether he had gotten the message that I called back yesterday with the addresses for the NRC that he had requested. He said that he had not seen the message or the addresses but assumed that his secretary had placed the message 6-
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on his desk but that he had_just not seen it yet. I told him that when I~could~not-reach him the day before, I had called I John Bassett to find out what was going on. Mr. Rowe in turn ~ '1 told me that the EBS had terminated its letter of agreement with NHY and was no longer _ cooperating with them in emergency planning because NHY had not kept its commitments _to the:EBS. 1 He told me that he wanted the Nuclear Regulatory Commission to be aware of that fact because'he was under the impression that NHY had represented to the Commission'that the EBS was cooperating in the Seabrook emergency planning proceeding.- He-said'that back in September of 1987 NHY had been in a very big hurry'to get him and John Bassett to sign letters of agreement on behalf of the EBS and WCGY. He said that he believed that NHY had to have the cooperation of the EBS to comply with emergency planning requirements. When I questioned him about what commitments NHY had not
.kept, he told me that NHY had committed to provide the -
equipment specified on the EBS letter of agreement to all the , local EBS stations on the Merrimac Valley area. He said those
. representations had been made both at the time that he and John Bassett had signed the letters of agreement in 1987 and had been verbally' confirmed within the last year in conversations that he had had with Gary Catapano. He told me that he believed that the cost of supplying all the equipment involved would amount to a sum in the range of $50,000, and that he could not understand why NHY was now refusing to keep that commitment.
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7 1.4 i 1 i i D*1 l I I told him that because the record on the Seabrook a licensing proceeding was closed, I did not believe the l Licensing Board could,.or would, take cognizance of his letter 1 to NHY in making its determination whether to approve the-SPMC. I said that I believed that the only way to have the Licensing Board even consider the issue would be by filing a motion to reopen the record. I told him that such a motion would.have to accompanied by affidavits and asked him whether ' he would be willing to furnish such an affidavit so that the licensing board would at least consider the import of the withdrawal of the EBS. He said that he would be willing to. - furnish such-an affidavit. I also asked Mr. Rowe whether he would reinstitute his letter of agreement with NHY if in reaction'to his sending his letter to the NRC, NHY came forward and agreed to provide the equipment in question to the local Merrimac Valley EBS stations. He said that he did not know what'he would do if that occurred.
- 8. That day after speaking to Douglas Rowe I discussed the j .-
matter with John Traficonte, the' Chief of the Nuclear Safety Unit. I told him about my discussion with Douglas Rowe and '
. John Bassett,'and that in my opinion a motion to reopen the h
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. record would not lie unless WCGY followed Doug Rowe and also l terminated its letter of agreement with NHY. I explained that V
H as long as NHY had a commitment to supply the necessary hardware to WCGY and WCGY was still willing to cooperate with NHY by accepting the equipment and activating the Merrimac Valley local EBS. stations, NHY still would have the mechanical J l
-capability of providing prompt notification-even if the.
official statewide EBS association was not cooperating. I also told him that the whole issue might disappear on its own if in. response to Rowe sending the NRC a copy of his letter to NHY, NHY decided to provide the equipment in question. I said that I thought that if a motion to reopen were to be filed one or more expert witnesses would be needed to explain how the EBS
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works and the significance of the a withdrawal by WCGY. Mr. Traficonte expressed concern that if WCGY terminated itL
, agreement with NHY, there would be a fairly short period of l
time to file a motion to reopen the record for such a motion to l L . J be considered timely. He told me to try to find an expert on { the EBS ahead of time so that the expert would be up to speed on the situation if and when WCGY withdrew. 1 l ' Because Royce Sawyer had explained to me how the EBS worked approximately a year before, I called him to see if he could furnish the names of persons who might be able and willing to serve as experts on the EBS. I explained to him about the 1 f original phone call from Douglas Rowe and my: subsequent !. conversation with John Bassett. I-told him that if and when t. 1; WCGY withdrew from participation in the SPMC, our office would probably seek to bring the matter to the attention of the NRC through a motion to reopen the record because NHY's means of activating the EBS was through WCGY. I told him that such a l
- motion would require an expert on the EBS who could explain how it worked and the significance of the withdrawal of WCGY. I 1
asked Mr. Sawyer if he knew of anyone with such expertise who l- ' l l.
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l might befwilling to furnish an-affidavit in support of the l motion and if the motionfwas allowed, who would be.willing to testify on the matter. He volunteered that he was probably the about'the most knowledgable person he knew of on the topic of ] the EBS. He said that part of his job involved the maintenance and periodic updating of the state EBS system including.
-identifying any need for new equipment to upgrade the EBS stations and keeping current the listings of.the stations that participate in the EBS. He said that he would be willing to serve as an expert on the matter if his superiors at MCDA approved.
I-told him that my purpose in calling him had been to i obtain the names of non-government experts who might be familiar with the EBS through consulting or contract work. I L_ L explained that the policy of our office through the proceeding c on the SPMC had been not to use state officials or employees as . l-witnesses because preparation to provide such testimony ? involved educating them on the provisions of the SPMC. Such an education process was not facially in harmony with the state's policylof not engaging in emergency planning for Seabrook since-even the process of familiarization with the SPMC might be considered a form of planning. I explained that although I o personally had no objection to using him as an expert because I knew he was knowledgable on the topic, I would have to get approval from my superiors to use him because of the policy considerations. I told him I would consult with my superiors on the matter and suggested that he do the same. l' L l
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- 9. After I got off the phone with Sawyer, I again spoke to John Traficonte on.the matter. I explained to him how I had initially called-Royce Sawyer to obtain the names of persons who might be able to serve as experts on the EBS and that in turn Sawyer had suggested himself for such a role. I told Mr.
Traficonte that'I thought that Sawyer would be a competent ! expert on the topic , but that I was aware of the policy against using state' officials as witnesses. Mr. Traficonte
-said that he thought that in this instance using Sawyer as a witness would be acceptable because of the posture of the case and the fact that Sawyer would be reviewing documents on and -
testifying on a fairly narrow topic.
- 10. I called Royce Sawyer back and told him that we could use him as an expert. I told'him that in order to get him up to speed on the notification provisions of the SPMC and its then current status, I would send him a packet of documents to review, and that after he had a chance to look through them, I
'would go over.the matter with him. I put together a packet of .
p ' documents that included the provisions of the SPMC and its implementing procedures that dealt with-public notification, L copies of NHY's letters of agreement with the EBS, WCGY, WLYT, L and a copy of Doug Rowe's letter to NHY and sent them to Sawyer. L
- 11. On October 19, 1989, I spoke to John Bassett by telephone. He stated that he had talked further with Douglas p
l- Rowe about the EBS withdrawal and was inclined to concur with Rowe. He said that he was considering sending a letter similar l
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to Rowe's, but had not yet done so. He said he would provide
'the Mass AG's office with a copy of the letter.
At no time during the course of that conversation or my previous conversations with John Bassett on or about December 1 29, 1988, January 5, 1989, or October 16, 1989 did I encourage 1
.him to withdraw from participation in the SPMC. The scope of my conversations was at all times limited to the gathering of factual information pertaining to WCGY's participation in the SPMC.
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- 12. My next conversation of any substance with Royce Sawyer took place on October 20, 1989. I may have spoken to him briefly on October 19, 1989, but if anything , that conversation was limited to an inquiry as to whether the packet of documents had arrived. On October 20, 1989 we had a lengthy [
discussion by phone about the the workings of the EBS and the notification provisions of the SPMC. We reviewed the' documents that Sawyer had received in the packet, and I answered his questions about the notification provisions of the SPMC. He , asked why NHY had a separate agreement with WLYT to transmit i messages since WLYT was already part of the EBS. I told him that I did not'know why NHY had a separate agreement but surmised that it was because NHY in July 1987 entered into an p agreement with WLYT to rent space for certain communications I equipment and then in August 1987, when NHY focused on the fact that they would need some means of providing notification, simply signed up WLYT for that purpose as well since they already had an existing working relationship. L .
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I told Sawyer that it looked very likely that WCGY would withdraw from participation in the SPMC and that our office would be filing a motion to reopen the record. Sawyer wanted to know what kind of statement we would be looking for in an i affidavit. I told him that principally what our office would like him to opine upon was how the EBS works and the ' significance of the withdrawal of WCGY. He then asked specifically how would we want him to describe the operation of the EBS. At that point, I said to him that he was the expert on the EBS, not me, and he should simply spell out the way that ; the EDS works for the Merrimac Valley area and explain why the withdrawal of WCGY would make a difference to the ability of NHY to provide prompt notification. He said that the EBS works ' pretty much as described in the Operational Plan, and a discussion ensued about alternate ways to activate the Merrimac Valley EBS. Sawyer told me that Mass Civil Defense did not , have a dedicated phone to WCGY nor any means of direct radio
. communication to the' station. He said that MCDA could activate the EBS-for the entire state including the Merrimac Valley
-through WROR. He could not state exactly how many minutes it would take to get an emergency message in from NHY and back out L to the Merrimac Valley via the MCDA's to link to WROR and l
WROR's statewide activation of the EBS. He was familiar with the.15 minute requirement of NUREG-0654 and said it might or might not be implementable within that time frame. When I asked whether anyone had ever timed how long it would.take to get a message out on the Merrimac Valley EBS through state link
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.to WROR when the commonwealth was engaged in Seabrook planning, he said as far as he knew no one had ever tried to get such a f l
message out. Towards the end of our conversation I asked Sawyer whether I he wanted to take a stab at drafting the affidavit along the lines of our discussion or whether he wanted me to write an 4 initial draft and send it to him to be marked up. He said he , thought it would be better if I did a draft and then he would review, and modify it as needed. At no point during that or ! our previous conversation did Sawyer ever mention he was ; planning to take off the following two weeks for knee surgery.
- 13. The following Tuesday, October 24, 1989, I called itCDA asking for Royce Sawyer. I wanted to tell him that I was faxing a draft affidavit for his review. By that point our ,
office had received a copy of John Bassett's letter of October 20, 1989 to NHY, and Bassett had stated that he too , would provide an affidavit. My phone call to Sawyer was referred to his assistant who informed me that Sawyer was on medical leave for knee surgery. . I told him that Sawyer had volunteered to be an expert witness t on the EBS issue and that now that WCGY had withdrawn, our office was under an obligation to bring the matter to the attention of the Licensing Board as quickly as we could. I asked if he knew how long Sawyer was likely to be out of the office, and if he had Sawyer's home telephone number or whether thera was some way to get in touch with Sawyer about the situation. He said that he thought the surgery was supposed to
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take place en Wednesday or Thursday and he expected Sawyer to be out a couple of weeks. He said that Sawyer was staying with , a friend around Haverhill. He went on to say that if we faxed the draft affidavit to him, he would get it to Sawyer and have l Sawyer call us. That is what I did. r
- 14. Since I could no longer be certain that Sawyer would be able to furnish an affidavit in support of a motion to reopen the record, I set about trying to find another expert on '
the issue. On Tuesday, October 24, 1989, I spoke to a principal in a nationally recognized communications engineering and consulting firm. He told me that the firm had an engineer on staff who was an expert on the operation of the EBS, but that the engineer was out of the country at the time. I was told the engineer in question would be back in the office the following Monday, October 30, 1989 and would be available to work on the project at that time. I was told another engineer would be available on Friday, October 27, 1989 to do an initial work up on the project so that it would be in a form that facilitate quick performance by the expert the following , Monday. I explained that I was still trying to ascertain l Whether the expert who had initially committed to work on the L project , Royce Sawyer, would be available but would send the , relevant documents to be reviewed so they would be there for a preliminary work up on Friday. To that purpose I sent out a packet of documents similar to those provided to Royce Sawyer the previous week. l
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- 15. On Thursday afterncon, October 26, 1989 Sawyer called my office. I apologized fer bothering him with business while I
he was on medical leave but explained that WOGY had withdrawn ' and if the EBS issue was to be put before the Licensing Board, i our office had to file a motion to reopen the record fairly i quickly for it to be viewed as timely. I told him that if we did not file the motion within about 10 days from the time of , WCGY's withdrawal, the Applicants were likely to be arguing i that we were untimely. I asked whether given that time frame , and the fact that he was expected to be out of the office, he still thought he could continue as expert on the matter. I told him that when I learned he was to be out of the office, I had contacted an outside consultant about working on the matter but that the earliest thet the outside consultant could address it was the following week. I told him that since he was already familiar with the matter if he wanted to continue on, we would be happy to continue working with him but that we felt that we should try to file the motion ideally by Friday, October 27, but certainly by the beginning of the following week. I asked if under those circu.natances he felt he wanted to continue on, or thought that he would not be cble meet those time constrainta given his medical leave. i He said that he had received and looked over the draft copy of the affidavit, but because he had just had surgery, he had not really had an opportunity to go over it in deteil. He said that he thought that he would be able to review it by the . l following day, Friday, October 27, 1989. I told him that I l l l l
thought it would be fino if he thought he could do the work in that time frame. I told him that he could call me with corrections and comments, and 1 would take them over the phone , and have them incorporated on the word processor. I told him that I could arrange to have a notary from office come out with the finished affidavit to have it signed. He said that all l sounded fine and would call back the next day.
- 16. Sawyer called back on Friday afternoon, he said that he had looked over the affidavit and it looked all right with him. When I asked if he had any corrections or additions he wanted to make to it, he said that it seemed fine the way it was but he was a little concerned that it might be viewed as putting MCDA in a bad light since he felt that it essentially was saying that the agency could not guarantee the safety of towns in the EPZ if there was a problem at Seabrook. I told him that I did not think that was a problem since that was one of the reasons the state stopped doing emergency planning for
- Seabrook in the first place. He said nevertheless he wanted me to go over the matter with Robert Bouley, the Director of the Agency, before he signed the affidavit. He said that he had already talked to John Lovering, the Deputy Director about it.
- He said that if after they had reviewed the affidavit, they approved of it, he would sign it.
I told him that given the hour I would probably not be able to go over the affidavit with Bouley and Lovering that afternoon and that would put us over till Monday for filing the motion. I told him I could arrange to have a notary on stand
by to'go out to where he was staying to witness the affidavit. I asked whether he had a current resume that could be attached to the affidavit. He said that he did not but had several papers at his office that could be put together as a statement of qualifications. I asked whether he could arrange to get them to me. At that point we had a discussion about the logistics of obtaining the documents and getting the affidavit signed. Finally, I said that if he approved, in a pinch we could file the affidavit without his signature and statement of qualifications on Monday, October 30, as long as the signature page and statement of qualifications followed within a day or two. He said that would be acceptable to him and would allow him_ time to pull together the various documents. At no time in that conversation or the one the day before did Sawyer mention any changes or corrections that he wanted made in the affidavit.
- 17. That same afternoon, I called Robert Bouley to arrange an appointment to talk to him about the affidavit. He was not in, and I asked to be referred to John Lovering. Lovering said that he had talked to Sawyer about the matter and he and Robert 1
Bouley could arrange a meeting on Monday to go over the affidavit with me.
- 18. On Monday, October 30, 1989 I went out to MCDA in Framingham and met with Robert Bouley and John Lovering. The meeting took place in the early afternoon and was also attended L by Buzz Hausner, head of the MCDA radiological planning group. 4 At the meeting I learned that apparently when Sawyer spoke to i
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Lovering he had expressed two concerns about the affidavit. i The first was the one that he had mentioned to me that the ' affidavit might put the agency in the posture of appearing unprepared to cope with a Seabrook emergency. The second was
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that it had been so long since MCDA had done any planning on ! l Seabrook, he was concerned that the utility might have some l means of activating the EBS or making notification that only it was aware of. In response to the latter concern, I explained to Lovering and Bouley that the affidavit was only addressed to the notification provisions that were in the SPMC, and that if the utility was going to rely on some other means of providing notification to the EPZ, it would doubtlessly say so in response to the motion to reopen. To address the first concern, I explained that the affidavit simply described how the EBS worked and why WCGY's withdrawal was significant. Lovering had already read the , affidavit and together at the meeting we went through it paragraph by paragraph. We discussed the SPMC's notification ' l provisions and the actions and letters of Douglas Rowe and John l Bassett. I told them that I did not believe that the affidavit l put the agency in a bad light. I pointed out to them that the affidavit indicated that notification could ultimately be made through WROR in Boston but that there was simply no assurance it could be accomplished as promptly as required by federal regulation. At the end of the discussion, Lovering said that he thought the affidavit seemed acceptable, but he would like to take it 1 1.
l I home and go over it once more that evening. Buzz Hausner said he saw nothing wrong with it, and Robert Bouley said that if l Lovering approved it, it was allright with him. l I explained that if the EBS motion was to be accepted we would have file it pretty quickly, and a discussion ensued l about the logistics of getting Sawyer's signature and credentials. I said that although the affidavit could be filed unsigned, they would have to be obtained so that they could be ; filed within a day or so afterwards. We discussed whether given the logistics of obtaining Sawyer's signature and statement of qualifications, someone else from MCDA should ! furnish the affidavit other than Sawyer, and Mr. Lovering suggested that it might be furnished by someone from the emergency planning group. I said I had no objection to someone , else furnishing an affidavit on the topic as long as they were knowledgable about the EBS and means the MCDA had to activate the EBS for the Merrimac Valley. I questioned the practicality of finding a new expert and bringing hin up to speed on the ; matter as opposed to simply arranging to obtain Sawyer's notarized signature and credentials. Buzz Hausner said that his group did not have any particular expertise on communications with and the operation of the EBS in the Merrimac Valley because they had not worked on Seabrook for a ' couple of years. Mr. Bouley said that he would be willing to furnish the affidavit but that if the affidavit was r.ot going to be filed until tomorrow anyway, since he was a justice of
i the peace he would arrange to personally take it to Haverhill to witness Sawyer's signature.
- 19. When I returned to the office, I reported to John :
Traficonte about what had happened, and he expressed concern that if we delayed even another day the motion might be viewed as tardy. He told me to call back to MCDA and see if Lovering's review could be completed that day. When I called back to MCDA, Lovering had already left the office so I spoke to Mr. Bouley. I told him of Mr. Traficonte's concern. Mr. Bouley said that Mr. Lovering lived down near Cape Cod and would be in transit for an hour or so but that he would then call and talk to him about the matter. ,
- 20. About five o' clock, I received a call back from Robert Bouley. He said that the motion and affidavit could be filed that day without Royec Sawyer's signature. He said that he had i spoken to Lovering at his home. He said that Lovering had gone over the affidavit once more and approved of it. Mr. Bouley stated that since Lovering had spoken to Sawyer about the matter and completed his uwn review of the affidavit, he would approve the affidavit and Sawyer would sign it. Our office then prucaeded to file the motion with Sawyer's unsigned affidavit as an attachment.
- 21. I called MCDA the next day to arrange to obtain Sawyer's rignature and credentials. Robert Bouley wat out when I called, and so I asked to speak to Sawyer's assistant. I asked him to get a message to Sawyer te call me to arrange for his signature and credentials.
- 22. On Wednesday,-November 1, 1989 Royce Sawyer called. I
; told him that we had to arrange to get his signature notarized and a statament of his crodentials. Y teld him that if he would just tell me the details of his professional experience over the phone, I could have it typod up crd send it out for his review along with a notary to uitness his sigaature.
He said it would be much easier for him to provide the details if he could look at the documents that were at his office to refresh his memory about various dates and job responsibilities. He said that he would be going there on Friday and suggested we meet there. I agreed and said I would chock to confirm that Mr. Bouley was going to be in the office so that he could notarize the affidavit. Savyer said that he had looked over the affidavit again and there was one point that no was not absolutely certain about. He said he would have to check the applicable regulations to see if non-EBS stations wore always required to go off the air N ' when the EBS was activated. He said he had a friend who had the copy of the regulations and would check with him on the tatter. Sawyer mentioned no other concerns about the affidavit.
- 23. Early in the afternoon on Friday, November 3, 1989, Royce Sawyer, Robert Bouley and I met at MCDA. Sawyer said that he had checked with his friend who had a copy of the regulations and that the non-EBS stations were required to go off the air only during national activations of the EBS, otherwise the state plans controlled. I said that if that was the case the affidavit could be changed to reflect that fact.
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e 1 At that point, Sawyer said that were other wording phrases that - he was also concerned about and that he wanted to talk about the matter with people in the emergency planning group to see if perhaps there were notification provisions they knew of but ; he did not because he had not dealt with Seabrook planning for a couple of years. I told him that Buzz Hausner had sat f through the meeting on Monday when we went over the details of ; the affidavit and had heard Sawyer's concern voiced through John Lovering. I told Sawyer that Hausner said his group had also not dealt with Seabrook for a couple of years and that they did not have any special knowledge about communications in i the Merrimac Valley. I offered to discuss with him whatever r concerns he had and said that I would take as much time as needed to go over them, but told him I did not see any point in taking time to talk to the planning group when Hausner had already been walked through the affidavit. I told him that we had an obligation to furnish the signature page promptly and that if we could not, we would probably have to withdraw the motion. I said there was a risk that a subsequent motion might be viewed as too late. We then proceeded to discuss Sawyer's concerns. He pointed out a few minor wording items that he thought n:ight clarify the language of the affidavit. We went through his wording proposals one by one. I explained to him why the word choices that were in the affidavit had been made. For each and every proposal that he had raised, he concurred that no alteration was needed in the affidavit. He agreed that his 23-
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proposed wording changes were minor, unnecessary, and did not ' in any way effect the substance of the affidavit. We discussed his concerns until each and every one was allayed. We did make i l the appropriate changes on the one substantive point that he { raised about the non-EBS stations. He initialed the changes, I swore to the contents of the affidavit in front of Robert ; Bouley, a Justice of the Peace, and signed the affidavit. f At no point during that meeting did I threaten or coerce f Royce Sawyer. Robert Bouley was present through almost the 1 entire meeting except for one or two short absences to answer phone calls. After Sawyer signed the affidavit, we went back to his office and spent the better part of forty-five minutes - putting together documents that reflected his professional . experience and taking down his work history. Not once during , that time did he express any second thoughts about signing the affidavit. At the end of that period of time, I said I would ! write up a' statement of professional qualifications for him i based on the documents he had provided and his work history and l fax it to him on Monday, November 6, for his approval. 1
- 24. On November 6, I did just that and also faxed a copy of his affidavit that incorporated in type the hand written changes he had made to the affidavit on the previous Friday.
At approximately noon on Monday, November 6, 1989 I called l Sawyer to see if he had received the fax and whether he had any l corrections to be made to the statement of qualifications. He said that he had not yet had a chance to review it but would do so in the afternoon and get back to me. I told him that if , 1
l there were corrections to be made the sooner he could let me know the better, so that I could get thea word processed and ' filed that day. He did not mention wanting changes in the affidavit. Later in the afternoon when I had not heard from him, I called him back but was told he was out of the office.
- 25. I called him the next morning, November 7, 1989 to ask ;
about any corrections to the statement, and told him that we should file the signed affidavit and statement of qualifications. He said he was still going over it but would let me know of any-changes by around noon. Again he did not mention any changes to the affidavit.
- 26. A little after 2:00 p.m. on November 7, 1989 I received a telefaxed copy of Exhibit 1 attached hereto. I never saw Sawyer's November 6, 1989 memo to Robert Boulay, nor was aware that he had given Boulay on November 7, 1989 a memo identical to Exhibit 1 until they came as exhibits to an Applicant pleading on February 14, 1990. No explanation accompanied Exhibit 1, and I immediately called Sawyer to find out what was going on. He was not in, and I left a message to
- have him call me.
In the meantime, I had word processing start making the ' changes noted in Exhibit 1 to this affidavit. I had all the changes noted in Exhibit 1 incorporated into the affidavit t except for item 7 which was facially inconsistent with item 8. Because the two items were inconsistent, I could not understand what Sawyer wanted done with them. I planned to talk to Sawyer
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)i about them when he called back to find out what he wanted and why he wanted it.
Later in the afternoon John Traficonte asked me whether we were going to be able to file the signed affidavit and statement of professional experience that day. I apprised him of their status. He said we could not keep delaying the filing of the signud affidavit and that we would either have to file it as it was or withdraw the whole motion. I called Sawyer back e couple of times unsuccessfully and finally reached him i in the late afternoon. I asked him what was going on and why he had not mentioned any of the changes in Exhibit 1 before ; either on Friday, October 27, or at any subsequent time. I told him that I thought the changes appeared to be largely inconsequential matters of phrasing that made no difference to the substance of the affidavit. I also explained to him that the exhibit he referenced in Item 4 wan simply the EBS operational plan. I informed him that I could not understand what he wanted done in connection with Item 7 since he . obviously meant to keep some of paragraph 4 as shown by Item
- 8. I told him that we were either going to have file his l
( signed corrected affidavit and statement of qualifications or withdraw the EBS motion. He said that his concern in Item 7 was that there might exist some means of the utility directly activating the EBS that he was not aware of because he had not been involved in l emergency planning for Seabrook for a couple of years. I reiterated what I had told him the preceding Friday,
I o November 3, 1989 that the affidavit or.ly addressed the notification provisions in the SPMC,. and that he did not have 1 l to be concerned about provisions that were beyond the scope of 1 the plan or hir; knowledge. He then said he had felt pressured to sign the affidavit on Friday. When he said that, I asked him if there was anything inaccurate in the affidavit. He that that there was nothing wrong with the affidavit he had signed but that he just d!.d not feel comfortable about the situation. I then proceeded to carefully explain to Sawyer the I differenca betweets a " fact" witness end an expert witness. I i told him that though one can force a" fact" witness to testify through subpoena power, one could not force an expert to provide an opinion. I told him that we had intended to offer him as an expert witness on the EBS and that we could not force him to testify. I explained that as a general policy we tried to avoid presenting even " fact" witnesses who were unwilling to testify, but that since he was to be presented as an expert witness we could not force him to testify. I went on to say that since he now claimed that he was feeling " pressured" we would not use him as a witness because we would not use an expert witness who claimed they were pressured. ,
- 27. At the time that I had the conversation related above with Sawyer, Mr. Traficonte was in another part of the office.
When he returned,I described my conversation with Sawyer to him about 5:30 p.m. He said that before we withdrew the motion he wanted to talk to Sawyer himself. We called back to MCDA in Framingham, but Sawyer had already left for the day at that
point. So, John Traficonte called Sawyer early on the morning of November 8, 1989. I was present in Mr. Traficonte's office : during that telephone conversation and heard John Traficonte ask Sawyer at least twice whether anything in the signed ; affidavit was untrue or inaccurate. !
- 28. When Mr. Traficonte finished his conversation with i Royce Sawyer we determined that the motion had to be withdrawn because we'had represented that we would use him as an expert ,
witness and that representation was no longer true. He never said that his affidavit was untrue only that he did not want to , continue because he felt uncomfortable about the situation. , Because we would not use him as an expert witness in that ; posture, we withdrew the motion. ,
- 29. That same morning I spoke to Robert Bouley and asked if he would be willing to sponsor an affidavit in support of the EBS motion and testify on the EBS issue as he had offered to on October 30, 1989. He said that he would be willing to do so and asked that we provide a copy of the affidavit to Stan Adelman, General Counsel of the Executive Office of the .
Department of Public Safety, for hip review as well. Robert Boulay and Stan Adelman were provided drafts of that affidavit on November 8, 1989. Mr. Adelman said he would take it home that night to review it. He called up the morning of November 9, 1989 and said that he had discussed it with Robert Bouley and saw no problem with it. The concerns that Royce Sawyer noted in Exhibit I were all incorporated and/or 1 otherwise addressed in the affidavit that was drafted for i
! . ~
i Robert Bouley's review and signature. Those changes from Royce Sawyer's original affidavit were the minor alterations noted in Footnote la on page 6 of the November 9, 1989 EBS motion. L After speaking with Mr. Adelman I telephoned Mr. Bouley and : arranged to obtain his notarized affidavit and a copy of his professional qualifications. ;
- 30. Accordingly, the November 9, 1989 EBS motion was filed relying on not the affidavit of Royce Sawyer but Robert .
Bouley. Royce Sawyer's affidavit was only attached and referenced in the section on " timeliness" to inform the Licensing Board as to why there was a delay in filing the ' November 9 motion from the time of the withdrawal of WCGY.on ; October 22. f The foregoing is true to the best of my knowledge and [ belief. SIGNED UNDER THE PAINS OF PERJURY THIS 2nd DAY OF APRIL, 1990. Leslie B. Greer 1825n l h I r 1'
0 DATEf- - N3v6 mbe r 7, '3 9 9f ..
- 4 4 I
~e ,
TO: Leslie Greer* k
; j
. i FROM: ,
Royce Sawyer . SUBhECT:
- Affidavit for S.eabrook 1
l 1 l My comments on the affidavit I
'I l
J' . Page 2 line 17 and 18 should read: y " local operational area basis may be made by directly contacting the operational area's primary" g/2. Page 3 line 2 should read: 6
" signal tollowed by the informational message to the l adjacent operational" l
- 3. Page 3-line 5 should read: :
s/s "in the adjacent local operational areas And. . , are tuned to WROR. There are"
-h. 4 Page 3 line 14.- No exhibit 1 included with documents.
i g3 5. Page 4 line 18 should read: ; s) " Letter of agreement with WLYT (F.M.)/WHAV (A.M.), t WLYT/WHAV cannot activate the" '
- 6. Page 4 line 24 and 25 should read:
"of the public who do not happen to be listening to radio stations WHAV or WLYT." '
7 Page 5 paragraph 4 should be eliminated in its entirety.
- 8. Page 5 1.ine 11 should reads "other than through commercial phone. Commercial telephone -;
may" ~ f EXHIBIT 1 .. l' l TOTAL P.02 ,
, '. N O V __ ..? _ '. 8 91 141, 0 5; __ _ _ _ _
PAGE.002
^ - ' - ^ ^ ^
i e i I UNITED STATES OF AMERICA 00cKETED ! NUCLEAR REGUIATORY COMMISSION USHRC ) ATOMIC SAFETY AND LICENSING APPEAL BOARD g pg g Before Administrative Judges: , j IFICE OF SECRETARY G. Paul Bollwerk III, Chairman $0CKEllNGASidN1 Alan S. Rosenthal BHANCH i Howard A. Wilber i
) '
In the Matter of ) Docket Nos. 50-443-OL :
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET AL.
)
)
(Seabrook Station, Units 1 and 2) ) April 2, 1990 *
) ,
CERTIFICATE OF SERVICE I, Stephen A. Jonas, hereby certify that on April 2, 1990, I made service of the enclosed RESPONSE OF THE MASSACHUSETTS
-ATTORNEY GENERAL TO APPLICANTS' REQUEST FOR
SUMMARY
AFFIRMANCE OF LBP-90-01, AFFIDAVIT OF JOHN TRAFICONTE, and AFFIDAVIT OF LESLIE i B. GREER by Federal Express as indicated by (*), by hand as indicated by (**) 1/ and by first class mail to: Ivan W. Smith, Chairman Kenneth A. McCollom ' Atomic Safety & Licensing Board 1107 W. Knapp St.
~U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, MD 20814 .
Dr. Richard F. Cole Robert R. Pierce, Esq. . Atomic Safety & Licensing Board Atomic Safety & Licensing Board L U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission L East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 i 1/ Hand delivery was made on April 3, 1990 by 10am.
)
i f
- Docketing and Service ** Thomas G. Dignan, Jr. :
U.S. Nuclear Regulatory Commission Ropes & Gray ; Washington, DC 20555 One International Place , Boston, MA 02110 !
*Mitzi A. Young, Esq. Phillip Ahrens, Esq. I Edwin J. Reis, Esq. Assistant Attorney General !
U.S. Nuclear Regulatory Commicsion Department of the Attorney General ; Office of the General Counsel Augusta, ME 04333 ! 11555 Rockville Pike, 15th Floor l Rockville, MD 20852 H. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel ' Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 , Agency 500 C Street, S.W. Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane-Doughty Diane Curran, Esq. Seacoast Anti-Pollution League Harmon, curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W. Washington, DC 20008' ; Barbara St. Andre, Esq. Judith Mizner, Esq. Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA- 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq. Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn Tom Burack) Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301 1
- - ~. . . _ - _ _ - - - _ _ _ _ - - _ _ - _ _ . _ - -
I
, I t
Paul McEachern, Esq. ! Shaines & McEachern 25 Maplewood Avenue, PO Box 360 i Portsmouth, NH 03801 j t
*G. Paul Bollwerk, Chairman
- Alan S. Rosenthal i Atomic Safety & Licensing Atomic Safety & Licensing ;
Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ; Washington, D.C. 10555 Washington, D.C. 10555 ^
*Howard A. Wilber Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency !
Appeal Board Region 1 ; U.S. Nuclear Regulatory Commission J.W. McCormack Post Office & , Washington, D.C. 10555 Courthouse Building, Room 442 i Boston, MA 02109 L George Iverson, Director N.H. Office of Emergency Management State House Office Park South ! 107 Pleasant Street Concord, NH 03301 Respectfully submitted, JAMES M. SHANNON ATTOR{YGENERAL
'Ste henjd. Jonas Deputy Attorney General Chief, Public Protection Bureau Department of the Attorney General 3~
One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: April 2, 1990 l l}}