ML20247B671

Applicant Response to Commonwealth of Ma Atty General Motion for Board to Accept Exhibit (Ambulance Licensing).* Motion Should Be Denied Due to Exhibit Being Irrelevant.W/ Supporting Info & Certificate of Svc

ML20247B671
Person / Time
Site:	Seabrook
Issue date:	07/10/1989
From:	Cook G, Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#389-8904 OL, NUDOCS 8907240175
Download: ML20247B671 (44)

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UNITED STATES OF AMERICA DUCKli< g j NUCLEAR REGULATORY COMMISSION BEFORE THE

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ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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PUBLIC SERVICE. COMPANY

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Docket Nos. 50-443-OL OF NEW HAMPSHIRE, et al.

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50-444-OL

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(Seabrook Station,

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(Offsite Emergency Units 1 and 2)

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Planning Issues)

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APPLICANTS' RESPONSE TO MASS AG'S MOTION FOR THE BOARD TO ACCEPT AN EXHIBIT (AMBUIANCE LICENSING)

Applicants hereby respond in opposition to the " Motion For The Board To Accept An Exhibit," dated June 30, 1989, of the Attorney General for the Commonwealth of Massachusetts

(" Mass AG").

-Ibe exhibit consists of four letters from a Deputy General Counsel for the Massachusetts 8 Department of Public Health ("DPH") to certain ambulance companies located outside the Commonwealth.

For the reasons discussed below, the Board should deny Mass AG's motion.

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BACKGROUND On June 29, 1989, Mass AG drew the attention of the l

Board and the parties to the existence of certain letters, under:the date of June 27, 1989, written by Ms. Suzanne L.

Mager, a Deputy General Counsel at DPH, to four ambulance companies, each of whose principal place of business lies outside of Massachusetts.1 In these letters, Ms. Mager advised the ambulance companies that DPH considers them to be subject to injunction and criminal sanctions because they have contracted with the Seabrook Joint,0wners to provide ambulance services in the event of a radiological emergency.

In particular, the letters allege that Chapter 111C of the Massachusetts General Laws and Section 170.296(B) of Title 105 of the Code of Massachusetts Regulations provide a basis for such legal action against the companies.

The letters conclude by warning the ambulance companies that DPH will pursue " enforcement procedures" unless they respond within five days and confirm in writing that they had terminated j

their contracts with the Seabrook Joint Owners.

I Mass AG argued on June 29 that the DPH letters ought to be admitted into evidence as proof that the SPMC nakes i

insufficient provision adequately to protect the public in 1

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1 The four companies are MEDEC Ambulance, Inc. of Portland, ME, Rockingham Regional Ambulance, Inc. of Nashua, NH, Derek's Ambulance Service of Manchester, NH, and B & L Ambulance and Rescue of Portland, ME.

the event of a radiological emergency.- II. 28097-28102.

The Board at that time instructed Mass AG to present his argument in the form of a written notion.- Mass AG arrived at the final day of hearings, June 30, 1989, with a notion in writing,2 The Board then determined that, because the subject natter was significant and the Motion was late, it would consider the Motion and Applicants' response on the papers in accordance with Commission rules.

Tr. 28195.

ARGUMENT Mass AG's notion should be denied for five distinct and independently sufficient reasons.

First, the proffered exhibit'is not relevant to any admitted contention.

Second,

'the DPH letters have no effect under either Massachusetts law or NRC precedent.

Third, the letters have no probative value because they constitute only a legal argument and futhermore present an erroneous application of law.

Fourth, the Commonwealth is estopped from offering the letters.

Finally, the notion is extraordinarily and inexcusably late.

These argumante are addressed ggriatin below.

1.

No Contention A11 aces That the Contracts in Ouestion Are 111ecal.

The four letters were offered by Mass AG "in connection with Contention No, 55."

II. 26097; ggg alg,q Motion at 1.

2 The motion is titled " Motion For The Board To Accept An Exhibit" [ Hereinafter referred to as " Mass AG's motion" or the " Motion").

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j Mass AG; claims that the letters are relevant because they are

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" probative of the ability of the Applicants to provide an adequate number of ambulance to transport the sick, injured and disabled from the Massachusetts EPZ in the event of l

radiological emergency at Seabrook Station.". Motion at 1.

Mass AG's theory of relevance is that the DPH's demand that these ambulance companies, which do no business in Massachusetts, nonetheless obey the DPH and repudiate their contracts with the Seabrook Joint Owners "put the use of out-of-state ambulances as a resource in the SPMC in doubt."

Motion at 7.

A critical flaw in this theory of relevance is that nowhere in JI Contention 55 or'any of its. bases is it alleged that any licensing. problem existed with regards to out-of-state ambulances.3 No other admitted contention raises the issue.

Moreover, nowhere in Mass AG's interrogatory responses is any assertion of unreliability due to licensing difficulties even suggested.

See Answers and Responses of 1-the Massachusetts Attorney General to the Applicantsi l

Interrogatories and Requesta For Production Concerning JI Contentions 6 and 27-63 (December 19, 1988) at Interrogatory Response 254; gge also id. at Responses 147, 175, 202, 263, l

265.

As Mass AG has expressly conceded, his interrogatory 3 Indeed, in Basis C of JI 55, Mass AG did raise a licensing issue, but only as to ambulettes, thus indicating that that issue was the only licensing question to be litigated.

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3 l answers' set the' outermost possible scope of his contentions.

Ir. 18687-88.-

The proffered exhibit thus is not relevant to any admitted contention as particularized in any bases.

Nor

.should it be treated as a request for a late-filed contention, since Mass AG has failed to follow the proper

, a procedure'for making such a, request.4 'Eng Memorandum and.

L Order (Rulina on Massachusetts Attorney General's Exercise-Contentions 8.C.1, B.C.3,

18. and 21.C) at 12-13 (January.13, 1989) and cases' cited therein; ggg also Georcia Power Company (Vogtle Electric Generating Plant, Units 1. and 2), LBP-86-41, 24 NRC'901, 927-28 (1986), modified, ALAB-859,'25 NRC 23, Aff_A, ALAB-872, 26 NRC 127 (1987).

Even if Mass AG.had properly moved for admission of a late-filed contention, moreover, that motion should have been denied.

Looking to the first of the five factors applicable pursuant to 10 C.F.R.

$ 2.714 (a) (1), no gcod cause could be found.for the Egregious lateness of Mass AG's request.' As Mass AG's own investigators have testified, Mass AG' possessed copies of the contracts with'the four ambulance companies in question as early as March, 1988, 12g., well prior to the-4 The exhibit could only properly be admitted by the x

Board gua soonte if Ma2s AG had shown that "a serious safety, environmental, or common defense and security matter exists."

'10 C.F.R. 52.760a.

No such showing has been nade here.

Nor

.could one be, especially in light of the legal' infirmities of and the the proffered letters, see infra Sections 2 and 3, fact that Applicants could readily cure any violation -- if a state court did eventually find that one existed -- by having the companies in question obtain Massachusetts licenses. -

deadline for filing contentions.

Mangan & Paolillo Dir. ff.

Ir. 19429 at 5, 6-8, 9-10, 19-20.

In the Motion, Mass AG g

concedes that'he "was previously awate of the fact that out-of-state ambulance services were to be used in the SPMC."

Motion at 2.

He goes on to claim, however, that "the Massachusetts Attorney General was not aware that such companies required Massachusetts ambulance service l

licenses.n5 Accepting that confession as being true, ignorance of'the " law" by the Attorney General can constitute no excuse for a fifteen-month delay in raising this issue.

Having failed to show good cause for his lateness, Mass-AG would then be required to "make a compellind showing on the other four f actors" of 5 2.714 (a) (1).

Public Service Company of New Haroshire (Seabrook Station, Units 1 and 2),

ALAB-918, 29 NRC

, slip op. at 21 (June 20, 1989)

(emphasis in original).

Mass AG could make no such showing.

To the contrary, the third (contribution to a sound record) and fifth (delay red /or expansion of issues) would have counted against him.

The extreme lateness of Mass AG's moticn -- 129 at the very c10so of the hearings -- precluded Applicants and/or Staff from offering a cogent factual response to it, thus tending to undernine rather than enhance the soundness of the record.

As the Board has noted, it does 5 Mass AG does not claim that his client the DPH was similarly ignorant.

Given Mass AG's claim of attorney-client privilege with DPH and other Massachusetts agencies, simple fairness demands that he should be chargeable with the knowledge of that client agency. I

not favor " sandbagging" tactics used to manipulate the record.

Ir. 27212.

Similarly, Mass AG clearly would be broadening the issues and, to the extent that admission of the exhibit would logically require waiting upon the initiation and then resolution of the threatened state-court proceedings, would engender substantial delay.

The balance of the five factors would therefore weigh substantially against admission of such a late-filed issue.

2.

The DPH Letters Have No Leaal Effect In The Licensina Proceedings Because They Ar.e Neit,her Authorized Under State Law Nor Sufficient By Themselves To Support A Findina That Transportation Resources Would Be Unavailable.

Even if there were an admitted contention on point, the Board should find the proffered letters irrelevant as a matter of law, since they could have no legal effect under either Massachusetts law or NRC precedent.

(a)

The DPH letters have no.Jeaal effecc under Massachusetts law on the contracts between the Seabrook Joint owners and the ambulance companies.

The Departtent of Public Health possesses no statutory authority to issue an order demanding that a party not licensed by b?H "ceare and desist" from its commitments under i

a contract.

Massachusetts statute, which gives DPH the ability to "make rules, regulations, and orders, and delegate ta2:hority to its divisionr,, employees and agents, as may be necessary or appropriate to carry out the provisions of this chapter," instead of being unlimited in its grant of j

authority, requires reference to some other " provisions of this chapter."

Mass. Gen. Laws ch. 111C, S?(10), Attachment A ny.

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.7 hereto' :No other section of ch. 111C provides authority for

. issuance of a'" cease-and-desist or er"'of.the type in d

question here.

Nor.do the. statutes and regulations give any

<1egal status or significance'to any such " order".

Thd closest analogy to'the'DPH' orders which Mass AG P

seeks to have admitted into evidence is-found'in Mass. Gen.

Laws ch. 111C 59,. Attachment B hereto, the statutory section

. governing a response by DPH to informatica that an otherwise licensed ambulance.-ir. not in compliance:with regulatory requirements.

That.section provides for the department to

order a licensec to correct a deficiency, not.for an order.to terminate its contractual arrangements._ Id. at 59(a).

It also states explicitly that, instead of requiring an immediate response, for'every correction order issued by DPH,.

"nue period prescribed shall be reasonable and, except in an emergency declared by the commissioner, not less than thirty days.from receipt of.such order."

Id.

Since the four companies in question do no business in Massachusetts.and are not licensed there, 99 is not applicable'to them.

Moreover, even if 59 were applicable, DPH failed to provide the I

requisite " reasonable" correction period of at least 30 days, and in these circumstances the time necessary to correct the alleged " deficiency",

i.e., enough time for the making and

. approval of license applications.

Neither dc ac two other statutory sections that govern enforcement proceedings give the department authority to _____ - ___________ _ ___ _ __ - - -

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demand that a party immediately withdraw from its contractual-obligations.

Rather, they allow DPH to request the Attorney

. General's assistance, and they define prohibited acts that the Attorney General may investigate and prosectte in the courts'of the Commonwealth.

Egg id. at $511, 30, Attachments C and D hereto.

Because the DPH letters to the ambulance companies lack any statutory basis, ignore the 30-day provision for notice, fail to mention appropriate procedures for filing an application for a license, and constitute neither an enforcement proceeding in state court nor a recommendation to prosecute to the' Attorney General, they cannot be found by this Board to have any effect on the ambulance companies' availability to perform their roles during a radiological emergency.

(b).NRC DrecedeDt makes clear that commencement of an adjudicatory proceedina does not by itself suonort a findina that resources would be unavailable.

The Atomic Safety and Licensing Appeal Board has recently made clear that the results of unresolved state-court proceedings should not be the subject of speculation in NRC licensing proceedings.

In Lona Island Liahtina company (Shoreham Nuclear Power Station, Unit 1), ALAB-905, 28 NRC 515 (1988), the Appeal Board censidered the situation of a state-court zoning proceeding against an applicant's use of a facility as a reception center.

The Appeal Board noted with approval that, until such a time as the state court entered _ _ _ _ _ _ _ _ _

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, 4' its final decision, the licensing board allowedLtrial only on the issue ofLthe reception center's appropriateness, rather--

than its availability, "the Board' quito properly refused to speculate on the outcome of the zonitag dispute." 'Id. at 519.

-Pu'rsuant to ALAB-905,.only.an actual state-court ruling-can constitute probative evidence in a licensing proceeding.

The mere pendency of state-court proceedings can have no probative value, since their outcome remains speculative.

Given that existing, unresolved proceedings are. legally irrelevant in NRO practice, then a fortiori the mere threat that such proceedings might be instituted at some point in.

the future is doubly speculative.

The DPH letters threatening future legal action against the ambulance companies doing business with Seabrook are thus irrelevant as a

a natter of NRC law.

i The DPH Letters Have No Probative Value Becauce Thev 3.Constitute Oniv A Leoal Araument; Furthermore, That Araument Incorrect 1v Describes The Ambulance Connanies' Role And Wronalv Anolies The Law,

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Even if there were a contention on point and the protfered evidence were legally admissible, the exhibit offered by Mass AG is not probative of the Applicants' ability to provide an adequate number of ambulances in the

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1 event of a radiological emergency.

Probative value is the tendency of evidence to establish the proposition that it is offered to prove.

McCormick, Evidence $184 (3rd ed. 1984).

But the letters written by DPH counsel do not present facts that tend to establish that Applicants can no longer rely on.

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the ambulance companies to. provide ambulances during an emergency.

-Instead, the letters offer the peremptory legal conclusion that a Massachusetts ambulance " license is required as the result ~of the terms of your contract with Seabrook Joint Owners" and threaten to pursue " enforcement procedures" if the ambulance companies do not withdraw from their contracts.

Such legal argument, whether presented in an exhibit, as is the case here, or in the form of testimony of a witness who. addresses a question of law, should be excluded.

See Tr. 22874-78 (May 25, 1989) (Board rejects

" raw pure legal analysis"); Egg also McCormick, Evidence 512 (3rd ed. 1984); Marx & Co..

Inc. v.

Diner's Club. Inc., 550 F.2d 505, 510 (2d Cir.), cert. DAD., 434 U.S. 861 (1977).

As Mass AG admits in his own Motion, he "could, in theory, have argued about the law to the Board," but "[s)uch argument would not have provided factual evidence to the Board that the out-of-state ambulance companies would not respond to an emergency at Seabrook."

Motion at 6.

Having recognized the evidentiary problem with his position, Mass AG endeavors to sidestep it by relying on the legal analysis of another department of the Commonwealth.

Having the i

Department of Public Health proffer its interpretation of

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l statutes and regulations, however, does not turn legal l

argu.nent into factual evidence.6 I

Not only is Mass AG's " exhibit" a form of legal argument; as is shown below, the argument itself is 1

thoroughly flawed.

The DPH letters should not be admitted because they incorrectly describe the ambulance companies' contractual duties, interpret state regulations in a manner inconsistent with statutory definitions, and propose applying i

those regulations in a way that would v.iolate constitutional i

restrictions on state regulation of interstate commerce.

J (a)

The assertion in the DPH letters that the ambulance l

l companies provide " ambulance service" in Massachusetts is wrona.

The exhibit offered by Mass AG suggests that the ambulance companies are obilgated under contract to regularly operate in Massachusetts.

They are not.

The four contracts simply state generally that the Contractor shall "make available all requisitioned vehicles and personnel for l

Applicants' Exhibit No. 41, the Company's use."

Egg, o.c f

z, MOERP No. 63.

The contracts -- which Mass AG has induced DPH j

to call upon the companies to repudiate -- thus provide for 6 Mass AG apparently recognizes the distinction between l

a position taken by a state agency and an admission by an ambulance company or a court ruling.

Een Motion at 7.

Although Mass AG would surely like to be able to offer either of the latter, he cannot since neither an admission nor a ruling exist.

Mass AG only offers the weak excuse that if he had waited to receive a response from the companies or a court ruling, he "might have been criticized for delay.".

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N-the-companies to make their ambulances available wherever-nee'ed, be that in Massachusetts, New Hampshire, or Maine.

d More importantly, the contractors only agree to make l

ambulances available in the event of a radiological 3 emergency (and drills for such emergencies).

Id.

A radiological emergency is a rare and improbable event.

It does not even approach the frequency incorporated in the statutory 1

definition of " ambulance service" as "the busine9s or regular L

activity" of transporting injured individuals b:t ambulance.

Mass. Gen. Laws. ch. 111C, 51,-Attachment E hertto.7 Finally, even if there were a radiological emergency and out-of-state ambulance companies sent ambulances into Massachusetts under the SPMC, they would do so only to provide a " backup" to the L' commonwealth's own emergency medical transportation resources.

The provision of backup service in Masac;husetts by out-of-state companies is approved and authorized by Department of Public Health Regulations.

Mass. Code of Regs. tit. 105, 5170.296(C)

(1986), Attachment F hereto.

7 Mass AG attempts to compare the present situation to a prior enforcement action against an ambulance company servicing mini-bike races.

Motion at 3, 5 and Attachment B thereto.

The analogy is simply inapposite.

In that proceeding, a New Hampshire company had actually sent its ambulances into Massachusetts to service repeated, regularly-scheduled mini-bike races.

Here, on the other hand, the ambulance companies have merely contracted to help, if needed, in the unlikely possibility of a serious radiological emergency at Seabrook Station.

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(b)

The-interpretation of state regulations advocated by the DPH letters is inconsistent with Massachusetts statuta.

The DPH letters attempt to apply 5170.296(B) (2) of Title a

l 105 of the Code of Massachusetts Regulations, Attachment G l

hereto, in a'way that contravenes the statutory, definition ~of

" ambulance service."

Section 170.296(B) states that "No ambulance service shall regularly operate in Massachusetts unless the ambulance service is licensed in accordance with the provisions set forth in these regulations."

Mass. Code of Regs. tit. 105, 9170.296 (1986).

Part (2) of 5170.296(B) further says that "An out-of-state ambulance service shall be deemed to be regularly operating in Massachusetts if the service has a contractual agreement to provide ambulance service [ emphasis added) in Massachusetts."

Mass AG would interpret Part (2) to mean that a contract that micht involta any ambulance responding in Massachusetts during a radiological emeraency is sufficient to find that an ambulance-company is regularly operating in Massachusetts and is subject to its licensing provisions.

But a careful reading of the regulation shows that such an interpretation violates the statutory definition of " ambulance service" as a business or regular activ.ity.

If the term " ambulance service" in regulation $170.296 (B) (2) did mean that a contractual agreement that called for any ambulance to operate under any condition in Massachusetts could be deemed

" regular operation," then it would exceed the statutory definition of " ambulance service" as a " business or regular

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l activity."

Neither the letters written by DPH counsel nor Mass AG; notion establish that the four ambulance companies here regularly operate in Massachusetts or that they have violated the Commonwealth's provisions on licensing.

(c)

An attempt by Massachusetts to enforce reaulation E170.296(B)(2) as succested by the DPH letters would be unconstitutional as a violation of the commerce clause.

The DPH letters seek to void contracts between a New Hampshire corporation and four Maine and New Hampshire ambulance companies, which contracts concern the provision of emergency services in connection with a federally-regulated nuclear power plant located in New Hampshire.

This putative DPH enforcement action, even if proper under Massachusetts law, would be barred as an impermissible state interference with interstate commerce.

The regulation of interstate commerce usually lies exclusively with the federal, rather than state, authorities, pursuant to the Commerce Clause of the U.S. Constitution.

State action that interferes with interstate commerce is allowed only where it " regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental."

Pike v. Bruce Church. Inc., 397 U.S.

137, 142 (1970).

Even then, the local benefit must be balanced against the burden on interstate commerce, and "the extent of the burden that will be j

tolerated will of course depend on the nature of the local l

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n interest; involved, and on whether it could'be promoted as well with a. lesser-impact on interstate activities." Id.

L In this case, there seems not to be an evenhanded application.of state law, but rather a pointed and contrived attempt to interfere with the licensing of Seabrook Station.

Nor does there appear-to be any " legitimate local public interest" at stake, since Massachusetts has already expressly stated that it will not regulate vehicles that might be pressed into service as ambulances in the event of a major catastroy i.

Een Mass. Code of Regs. tit. 105, 6170.010 (1988),' Attachment H hereto.8 Moreover, the burden on interstate commerce here clearly outweighs any local interest.

These five New Hampshire and Maine entities clearly have a right to conduct emergency activities in Maine, New Hampshire, and Massachusetts without interference.

by the Mass AG.9 Moreover, Massachusetts' clearly has less intrusive means available to it than a brazen demand that the ambulance companies repudiate their contracts, thus affecting activities in all states, not just Massachusetts.

In sum, 8

Moreover, to the extent that Massachusetts might still claim to have an interest in the regulation of ambulance services provided in response to a radiological emergency, that interest would be preempted by the federal regulation of all health-and-safety aspects of nuclear power plant operation.

Pacific Gas & Elec. Co. v. State Enerav Comm'n, 461 U.S. 190 (1983).

9 To the extent that the operation'of Seabrook Station in interstate commerce is interfered with, the strong public interest in promoting rather than retarding that operation m*st also be weighed in the balance.

Egg Declaration of Janes D. Watkins, Attachment I hereto, at $7. _ -

the Mass AG/DPH interference in these circumstances could not withstand commerce-clause scrutiny.

4.

The Commonwealth is Estopped from Offerina this Evidence.

Even if the evidence were relevant, admissible, and probative, Mass AG is estopped from offering the exhibit.

(a)

Mass AG has already admitted that the DPH letters would have no bearino on a real emeraency.

Mass AG's own prior admissions, when read in the light of state law and regulations, estop him from now relying upon these letters to argue that Applicants would not have sufficient ambulance resources to respond to a radiological emergency.

Mass AG already has admitted that the Commonwealth would use every available resource, whether public or private, to provide aid in the event of a radiological emergency. App. Reb. No. 21 ff. Ir. 23537 at 28-29 and Attach.

G.

That admission is buttressed by state regulations which make clear that uncertified vehicles may be used to ronder emergency medical transportation in the case of a major catastrophe.

Mass. Code of Regs, tit. 105, H

$170.010, Attachment # hereto.

Given the power nf the Commonwealth's governor to suspend state laws and regulations in the event of a radiological emergency,10 there unquestionably is no legal or factual inpediment to the use of the ambulances in question to respond, if needed, to a 10 See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-8, 29 NRC 193, 197 (1989). _ - _ _ _ _ _ _ - _

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'Seabrook emergency.;For that reason too, therefore, the Board should reject-the proffered exhibit.

(b)

Mass AG created the " facts" he now seeks to use as a licen e'imoediment.

s

' Mass'AG's motion asks the Board to admit into evidence four 1etters whereby the DPH -- at the instigation of and in

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active cooperation with the Mass AG11 -- seeks to force foLr out-of-state ambulance companies to renounce all involvement in emergency response for Seabrook Station.

In=effect, Mass AG seeks.to have this Board give weight, in its licensing decision, to a threat which he at the very least has engendered against four parties who have contracted with the Seabrook Joint Owners.

The precedents established by this Board, by the federal courts. reviewing similar state, interferences with the nuclear licensing process, and under 12 all urge that Mass AG be the general principle of. estoppel denied the benefits of his own inequitable conduct.

'As discussed in Sections 2 and 3 supra, the four DPH

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letters are without statutory basis, violate DPH procedures, misinterpret the relevant statutes and regulations, and 11 Mass AG's weak' argument that he could not have

" compelled" DP to send the letters, Motion at 6, is at best disingenuous.

Mass AG admits that one of his attorneys raised the issue with DPH, and that two different divisions of his office were fully involved in the drafting and sending of the letters.

Motion at 3-4.

12 See, a g. R.H.

Stear 70 Co. v. United States, 291 U.S.

54, 62 (1934) ("A suit may not be built on an omission induced by him who sues."); sgg also Pennsv1vania v. Egw Jersey, 426 U.S.

660, 664 (1976) ("No State can be heard to comolain about damaae inflicted by its own hand."). _ _ _ _ _ _ _ _ _ - -_

' contravene the federal constitution.13 The Mass AG/DPH threat to the ambulance companies thus clearly fits within the category of " improper affirmative act(s)" to obstruct licensing which the federal courts have held to be actionable, and which on at least one occasion they have enjoined.

Citizens for an Orderly Enerav Policy. Inc. v.

County of Suffolk, 813 F.2d 570, 571 (1987) (per curiam);

Lena Island Lichtina Co. v. County of Suffolk, 604 F.Supp.

759 (E.D.N.Y. 1985).

As this Board noted when it sanctioned Mass AG for disclosing information that could be used to intimidate participants in Applicantc' emergency plans, "[i]nterfering with the [ contractors') Agrauemer.ts to respond to an emergency at Seabrook is no different than disabling a safety system at the plant itself."

Memorandum and order (Rulina on Apulicants' Motion for Sanctions) at 11 (November 17, 1986).

Now Mass AG seeks to use, for his own advantage in these proceedings, attempts to intimidate these ambulance contractors irAo breaching their agreements to help evacuate the sick and disabled in the event of a major nuclear disaster.

The Board stated, when the threat of intimidation 13 ALAB-883 is thus distinguishable.

In that case, the Appeal Board refused to apply the doctrine of estoppel because it found the Commonwealth's actions, in destroying Applicants' fixed siren system, to be neither " unlawful or untoward".

Public Service ConDapy of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-883, 28 NRC 43, 49 (1988).

Here, however, the Licensing Board can and should find the Mass AG/DPH threats to be both

' untoward" and " unlawful".

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was-indirect, that it wou1d "try to nullify any unfair litigative advantage."

Id. at 10.

A fortiori, the Board' i

should. respond to this. direct harassment by denying Mass AG any evidentiary-use.of'his threats.

5.-

Hass AG's Motion Is Inexcusably Late.

Finally, putting all other arguments aside', Mass AG's motion simply comes too late in the proceedings to fairly be allowed.-

Mass AG had copies of the contracts involving the four ambulance companies since approximately March, 1988.

Egg Mangan & Paolillo Dir. ff. Tr. 19429 at 5, 6-8, 9-10, 19-20.

The contracts were admitted into evidence as part of Applicants' Exhibit No. 41 on, April 14, 1989.

Tr. 19338.

To make a. notion based upon an alleged deficiency in the contracts on June 30, the last day of the hearings, is a transparent attempt to delay the final resolution of these proceedings.. After nearly two years of trial, the time for an end'is at hand.

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CONCIDSION

For the' reasons stated above, the Motion should be

' denied.

Respectfully submitted, W

swe.6L Thomas G'.

Dignan, Jr.

George H. Lewald

.Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook William L. Parker Ropes & Gray 1 International Place Boston, MA 02110 (617) 951-7000

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' ATTACHMENT A-(Pa'ge - 1. of. 3 )-

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.c 111C.0 1 PUBLIC HEALTH for, and is maintained and operated for, the transportation of sick, injured or disabled individuals.

" Ambulance service", means the business or regular activity, whether for profit or not, of transporting sick, injured or disabled indstiduals by ambulanc

" Board", means the emergency medical care advisory board estab-lished under section seven.

q

" Commissioner", means the commissioner of public health.

" Company", means a corporation, e, partnership, a business trust, an association, or an organized group of persons, whether incorporated or not;' or any receiver, trustee, or other liquidating agent of any of the foregoing while acting in such capacity.

" Department", means the department of public health.

" Dual purpose vehicle", means a vehicle which is used for ambulance service even though it is also used for other purposes, including police and fire purposes.

" Person", means an individual, a company, or an agency or political subdivision of the commonwealth.

The department may define in regulations any term used in this chapter, provided that such definition is not contrary to a provision of the general laws.

Added by St.1973, c. 948,~ s 1.

Historical Note St.1973, c. 948, 61, adding this chapter, consisting of this section and 66 2 to 13, was approved Oct. 24,1978.

Library R- :rences Physicians and Surgeons s=1.

C.J.S. Physicians and Surgeons 6 3 et seg.

' E 2.

Powers and duties of department For the administration and enforcement of this chapter, the depsrt-ment may:

(1) establish and enforce rules and regulations for the establishment and maintenance of ambulance services and for the maintenance and operation of ambulances, including but not limited to rules and regula-tions governing ambulance personnel, safety, sanitation, equipment, com-munications, medical supplies and records; (2) establish fees for the issuance and renewal of licenses and certifi-cates of inspection; 482 f'

t.

_.__i__.____________..

ATTACHMENT A

(? age 2 of 3)

EMERGENCY MEDICAL CARE lllC E 2

'(3) make such reasonable classifications of ambulances, by type of vehicle and purpose, and ambulance services, by nature and scope of service, as it finds necessary or appropriate in the public interest; (4) determine the need for and to plan for the distribution of ambu-4 lances s.nd ambulance services in the commonwealth; (5) inspect at any time any ambu!ance and any facilities and records maintained in connection with any ambulance service, provided that a license has been issued, or an application for a license has been filed, for such ambulance service; (6) approve courses in emergency medical care for ambulance opera-tors and attendants under such conditions as it may establish with the-advice of the board; (7) develop a cost-sharing program between local, state and federal governments and voluntary private funding for training of ambulance operators mi attendants and purchase of ambulances; (8) coordinate on a regional basis communications centers, ambulance services, hospital emergency services, law enforcement and fire units and energency operations centers and facilitate hospite transfers of patients; (9) subject to the provisions of section three, make rules and regula-tions regarding adequate insurance coverage for licensed ambulance services and for operators and attendants of certified ambulances; (10) make rules, regulations, and orders, and delegate authority to its divisions, employees and agents, as may be necessary or appropriate to carry out the provisions of this chapter.

The department shall not establish the requirements as specified in clause (1) and shall not establish conditions for approval of courses as specified in clause (6) until the board has been provided a reasonable opportunity to review and make recommendations on such requirements and conditions.

Added by St.1973, c. 948,61.

Hinter!ca! Note St.1973, c. 948, 6 4, provided.

employed by an ambulance service be in

'Taragraph (3) of section twe.sve on cht;" compliance with the training requirements ter one hundred and eleven C of the Gener' of section six of said chapter, and it may allaws, anserted by section one of this act-require prior to July first, nineteen hundred and seventy-five, that no more than one shall not take effect until July first, mne-third of such operators and attendants be in teen hundred and seventy seven, provided. compliance with said training requirements.

that under the s.uthority conferred under For purposes of this sectaon, the depart-section two of said chapter, the department ment may treat classes of operators and may require prior to July first, nineteen attendants separately in the event that it hundred and seventy-six, that no more than estabhshes different training requirements two thirds of the operators and attendants for each class."

483 l

m

W M

ATTACHMENT A f

(Page 3 of 3) f PUBLIC HEALTH 111C g 2 I

g 8.

Incapacitated persons;' assistance to facility or protective custody

.o s, -

m.

i Notes of Decisions informed of right to breathalyser seines at police

1. In meal station, and by time defendant arrived at station,

'~

Detention of defendant, who officer had ample he was under arrest for carrymg firearm with-i

' reason to conclude was intoxicated and was out license, making this section irrelevant. - Com.

.v. Tom' o 0987) 607 N.E.2d.725, 400, Mass. 23.

e about to attempt to drive away in his automobue,

' and seizure of gun discovered on defendant dur-Police officer, who had ample reason to con.'

i ing pat down scr.rch was not unreasonable be..

clude defendant was intoxicated and was about I

cause officers failed to inform defendant of his.. to attempt to drive away in his automobDe, was rights as person taken into protective custody. entitled to seek to take defendant into protective due to intoxication, particularly of his right to,. custody. Com. v. Tomeo (1987) 507 N.E.2d 725, have breathalyzer test administered; right to be ' 400 Mass 23.

- 'i~

~ ~' '-

ss

~

. CHAPTER '1110'.'t EMERGENCY MEDICAL CARE

of 8

~

'. WESTLAW Electronic Research go WESTLAW supplements Massachusetts Laws Annotated and is useful for additional research.

I Enter a citation in Insta-Cite for display of any parallel citations and case history. Enter a

)

constitution, statute or rule citation in a case law database for cases of interest.

Example query for Insta-Cite: IC 258 N.E.2d 22

.n Example query for Massachusetts Constitution:'

.ti M.G.L.A. Const. Constitution /s 1 First /5 80 IXX Example query for statute: M.G.I.A. G.L. /5 231 +5 85Q

> Also, see the WESTLAW Electronic Research Guide following the Preface.'

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Code of Massachusetts Regulations Public welfare, transportation services, defini-tions, see 106 CMR 407.402.

e l 2.

Powers and duties of department

.,...s

..... t,,

For the administration,.s....,,.,and enforcement of this chapter, the~ department may:

(1) establish and enforce rules and regulations for the establishment't and maintenance of ambulance services and for the maintenance and operation of ambulances, including i

but not limited to rules and'.ngulations governing. emergency medical technicians, j

including ambulance operators and attendants,gi,y rgg]y safety, sanitation, equipment, communica-tions,m,edjea),s,u,ppliespJ gjs ;{[;,,

,j

. ~ [See main. volumefor text of clauses (2) to (5))

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(6). approve courses;iniemergency medical care for emergency. medical technicians, including ambulance operators and attendants, under such conditions as it may establish with the advice of,the, board..,.x,m o g y.; 4 -

g g n,,, g g., L,.

. W.c,,a.m r [.&See main volumefor text of clauses (7) to (10)]

in u 1.m e e.

f.s,

w. !.., - am.

The department shall not establish the requirements as specified in clause (1) and shall not establish conditions for approval of courses as specified in clause (6) until the board has been provided a reasonable opportunity to review and inake' commendations ' n stri.

o

"' " ^ "'~~

~~'

requirements and conditions. m Amended by St.1983, c!419, il 1,2.

i 'l '-

V 89 l

1 s

ATTACHMENT B o

(Page 1 of 2)

EMERGENCY MEDICAL CARE 111C @ 9 Code of Massachusetts Regulations Ambulance and ambulance services, see 105 CMR 170.001 et seg.

@ 8.

Ambulance service; complaint procedures; investigation; no-tification of complainant The department shall establish and implement procedures for the making, transmission, and investigation of complaints concerning the maintenance of any ambulance service. The department shall prepare, and make available upon request, a description of such procedures, and it shall, as the public interest may require, investigate every complaint I

3 g

received, except to the extent that the act or practice complained of does not constitute a violation of this chapter or any regulation under this i

chapter. Upon investigation the department shall notify the complain-J 1

ant, if known, of its action in the matter. If it finds that an investigation j

is not required, it shall notify the complainant, if known, of its finding j

and the reasons therefor.

s j

Added by St.1973, c. 948,61.

@ 9.

Ambulance deficiencies

. l L

(a) Whenever the department finds upon inspection, or through infor-I mation in its possession, that an ambulance is not in compliance with a U

requirement established under this chapter, the department may order l

i

(

the licensee to correct such deficiency. Every such correction order shall x

include a statement of the deficiencies found, the period prescribed C

s within which the deficiency must be corrected, and the provisions of law

{

relied upon. The period prescribed shall be reasonable and, except in an

~

emergency declared by the commissioner, not less than thirty days from

~

receipt of such order. Within seven days of receipt, the affected licensee may file a written request with the department for administrative

. reconsideration of the order or any portion thereof. Failure of the department to grant, deny, or otherwise act upon a written request within seven days of filing shall be deemed a denial of such request.

(

(b) The department may assess a licensee ordered to correct deficien-cies fifty dollars per deficiency for each day the deficiency continues to exist beyond the date prescribed for correction. Before making an assessment, the department shall give the affected licensee notice of the matters alleged and the provisions of law relied upon and shall accord such licensee an opportunity for a hearing upon timely written request.

If after hearing, or waiver thereof, the department determines that cause exists, it shall make an appropriate assessment. The affected licensee shall pay such assessment except to the extent that, upon judicial review, the reviewing court may reverse the final decision of the y

department.

[

i 489 1

/

I 2

9-

,gg g)

ATTACHMENT B l

(Page 2 of 2) 111C @ 9 PUBUC HEALTH EME t

(c) An assessment made under this section shall be due and payable to the commonwealth on the thirtieth day after notification to the affected

Aut, l

d licensee. The attorney general shall recover any assessment due and C.J.

l, payable in an action of contract, or any other appropriate action, suit or j l proceeding, brought in the name of the commonwealth in the superior

@l court. Upon the motion of the attorney general, such court may consoli-l date for hearing and decision a judicial review proceeding and an Th j ten t j l

assessment collection proceeding if the proceedings. result from the same i

administrative action.

SUPE 2 chapt Added by St.1973, c. 948,61.

whet f

Code of Massachur,etts Regulations enga j regui l

}

Ambulance, inspection. deficiencies' that I' Generalh, see 105 CMR 170.800.

abett l

Assessments, notice and hearmg, see 105 CMR 170.820.

j anyI court '

@ 10.

nevocation, refusal to renew or suspension of certificate of tion inspection or license for violations

tion,

'V'#'

The department may, after hearing or waiver thereof, revoke or refuse to renew a certificate of inspection or license for failure to perform such requirements as set forth in such certificate or license, for violation of any applicable requirement prescribed under this chapter, for violation of

(,[

a correction order, or for engaging in, or for aiding, t. betting, causing, or day :

permitting, any act prohibited under this chapter. The commissioner Addec may, without hearing, suspend a certificate of inspection or license if he finds that the licensee concerned is operating or maintaining the ambu-lance subject to such certificate, or is maintaining the ambulance service

,,gune.

subject to such license,in a manner which endangers the public health or auprer safety; provided, however, that in every case of suspension the licensee shall be promptly afforded an opportunity for a hearing under this section. If after any hearing hereunder concerning a license, the depart-I$$

C^

l ment determines that cause exists, instead of revoking or refusing to renew such license, the department may issue an order modifying the g 7,'

license if it finds that the public interest would be better served by such action. No certificate of inspection under a licensee shall continue in No force after the department has revoked or refused to renew such license.

Added by St.1973, c. 948,91.

h orin Code of Massachusetts Regulations cle,o Ambulances, certif Certificates of inspection, revocation, see 105 CMR 170.830.

i

,(3)

Licenses, suspension, revocation or refusal to renew, see 105 CMR 170.670.

violat j

490 l'

I J

ATTACHMENT C (Page 1 of 1)

EMERGENCY MEDICAL CARE lilC @ 12 Library References Automobiles *=106.

CJ.S. Motor Vehicles il 90,127 et seq.

f E 11.

Enforcement proceedings; jurisdiction; injunctive relief The attorney general, at the request of the department, shall, or any ten taxpayers of the commonwealth, may bring a ' bill in equity in the superior or supreme judicial court to enforce compliance with this

.l chapter or any rule, regulation, or order made under this chapter, whenever it shall appear that any person has engaged in, or is about to engage in an act or practice in violation of this chapter or any rule,

i regulation, or order made under this chapter, or whenever it shall appear yl that any person has aided, abetted, caused, or permitted, is aiding, j

f abetting, causing, or permitting, or is about to aid, abet, cause, or permit i

I; any such act or practice. Upon a bill brought hereunder, the superior i

i

{I court or supreme judicial court, as the case may be, shall have jurisdie-tion to grant temporary relief and, upon hearing, a permanent injunc-

• -g' tion, which shall be mandatory in form, if appropriate; provided, how-ever, that, where a bill is brought by ten taxpayers of the common-p!

wealth, no permanent injunction shall be issued until the department has k-been permitted to intervene as a party, if it so desires, or to submit an p

t amicus brief to the court. Any ten taxpayers filing a bill in equity f; J hereunder shall serve a copy thereof upon the department on the same t

day as such filing.

[J Added by St.1973, c. 948, s 1.

Ar

,.l Cross References b$

Injunedons, see Mass.R.Civ.P. Rule 65.

d' f Supreme pdicial and superior courts, equity jurisdicuon, see c. 214, t 1.

gr Library References th.

Injunction *=89(5).

l 3$

CJ.S. Injunctions 66133 to 135.

,3

~ f

@ 12.

Prohibited acts; penalty; investigation and prosecution of A

offenses by attorney general No person shall:

1 (1) establish or maintain an ambulance service without a valid license i

or in violation of the terms of a valid license; i

(2) operate, maintain, or otherwise use any aircraft, boat, motor vehi-cle, or other means of transportation as an ambulance without a valid

{

certificate of inspection; l

(3) operate an ambulance or to serve as an attendant thereon in

.j violation of section six; j

491 1

5

)

ATTACHMENT D (Page 1 of 2)

EMERGENCY MEDICAL CARE lllC @ 12 Library References Autornobiles #106.

l CJ.S. Motor Vehicles 65 96,127 et seq.

@ 11. Enforcement proceedings; jurisdiction; injunctive relief l

l The attorney general, at the request of the department, shall, or any i

ten taxpayers of the commonwealth, may bring a bill in equity in the j

superior or supreme judicial court to enfor.ce compliance with this a

chapter or any rule, regulation, or order made under this chapter, l

l i

whenever it shall appear that any person has engaged in, or is about to i

j engage in an act or practice in violation of this chapter or any rule, l

regulation, or order made under this chapter, or whenever it shall appear that any person has aided, abetted, caused, or permitted, is aiding, i

abetting, causing, or permitting, or is about to aid, abet, cause, or permit any such act or practice. Upon a bill brought hereunder, the superior court or supreme judicial court, as the case may be, shall have jurisdie-

{

tion to grant temporary relief and, upon hearing, a permanent injunc-tion, which shall be mandatory in form, if appropriate; provided, how-I ever, that, where a bill is brought by ten taxpayers of the common-l wealth, no permanent injunction shall be issued until the department has been permitted to intervene as a party, if it so desires, or to submit an j

amicus brief to the court. Any ten taxpayers filing a bill in equity hereunder shall serve a copy thereof upon the department on the same i

day as such filing.

f Added by St.1973, c. 948, i 1.

Cross References injunctions, see Mass.R.Civ.P. Rule 65.

Supreme judicial and superior courts, equity jurisdiction, see c. 214, 5 1.

Library References injunctir,n pS9(5).

CJ.S. hjunctions il 133 to 135.

@ 12. Prohibited acts: penalty; investigation and prosecution of offenses by attorney general i

No person shall:

(1) establish or maintain kn ambulance service without a valid license or in violation of the terms of a valid license; (2) operate, maintain, or otherwise use any aircraft, boat, motor vehi-k cle, or other means of transportation as an ambulance without a valid I

l certificate of inspection; t

(3) operate an ambulance or to serve as an attendant thereon in 1;

violation of section six;

[

2 491

{

v k

j

ATTACHMENT D (Page2off) 111C 012 PUBLIC IIEALTI!

EMERGE:

(4) obstruct, bar, or otherwise interfere with an inspection undertaken arrival of 1 under authority of this chapter; from whic!

attendant (5) knowingly to make an omission of a material fact or a false be liable u, i l

statement in any application or other document filed with the depart-

. based upo: !

ment; or if the sa,d !

i (6) violate or fail to observe any requirement of this chapter, or of any Added by S i

rule, regulation, or order under this chapter, which requirement the department has made subject to this section by regulation.

j Whoever engages in, aids, abets, causes, or permits any act prohibited Physicians l under this section shall be punished by a fine of not less than one CJ.S. Phyt Com ents hundred dollars and not more than five hundred dollars for each offense.

, p,,

A separate and distinct offense shall be deemed to have been committed civil i '

on each day during which any prohibited act continues after written notice by the department to the offender. The commissioner shall report

@ 14, each suspected offense to the attorney general for investigation and, if appropriate, prosecution in the courts of the commonwealth.

Added by St.1973, c. 948, 61.

chapter at Historical Note his duties ;

to an inju St.1973, c. 948, 6 4, provided:

employed by an ambulance service be in e mP ance with the training requirements personally li

" Paragraph (3) of section twelve of chap-ter one hundred and eleven C of the Gener-

, "$,l' " prior to u$ rs, n teen h nd ej res s M t 3

al Laws, inserted by section one of this act, an seventy five that no more than one shall he I shall not take effect until July first, nme-third of such oper,ators and attendants be in conditions' teen hundred and seventy seven, provided. compliance with said trainmg requirements.

that under the authority conferred under For purposes of this section, the depart-Added by E section two of said chapter, the department ment may treat classes of operators and may require prior to July first, nineteen attendants separately in the event that it hundred and seventy-six, that no more than estabhshes different training requirements two thirds of the operators and attendants for each class."

St.1977, c Code of Massachusetts Berulations 1977. Emert.

nor was filet Ambulances and ambulance services, violations of regulations, criminal sanctions, see 105 CMR 170.890.

9 13.

Liability of doctors, nurses, hospitals, ambulance operators Municipai.

and attendants Physicians C.J.S.

Mt No physician duly registered under the provisigns of sections two, two 594,601 A, or nine of chapter one hundred and twelve, and no nurse duly CJ.p'. Phy:

registered under the provisions of section seventy-four or section seven-ty-six of said chapter, and no hospital shall be liable in a suit for j

damages as a result of acts or omissions related to advice, consultation s

or orders given in good faith to ambulance operators and attendants who are qualified under section six, and are acting on behalf of an ambulance j

service duly licensed under section three, by radio, telephone or other t

remote means of communication under emergency conditions and prior to

}j 492 s'l ein 1

_ _u m___...

l ATTACHMENT E (Page 1 of 2)

CHAPTER 111C EMERGENCY MEDICAL CARE sec.

1.

Definitions.

2.

Powers and duties of department.

3.

Licensing of ambulance services.

4.

Inspection of ambulances.

5.

Ambulance license modification or transfer.

6.

Ambulance operators and attendants.

7.

Advisory board.

8.

Ambulance service; complaint procedures; investigation; notification of complainant.

9.

Ambulance deficiencies.

10. Revocation, refusal to renew or suspension of certificate or inspection or license for violations.

11. Enforcement proceedings; jurisdiction; injunctive relief.

12. Prohibited acts; penalty; investigation and prosecution of offenses by attorney general.

13. Lis.bilit. of doctors, nurses, hospitals, ambulance operators and attendants.

14. Liability of emergency medical technicians, police officers or fire fighters.

The section headings for Afassachusetts General Lates An-l notated hat'e been editorially supplied.

.l Chapter 111C of the General Lates was added by St.1973, c.

l 948, f 1.

Code of Massachusetts Regulations Ambulances and ambulance services, see 105 CMR 170.001 et seg.

Cross References Cities and towns. contracts for ambulance service authorized, see c. 40,9 4.

Emergency medical technicians, leave without loss of pay while incapacitated, see c. 41, i

5 111M.

i Medical care and assistance, see c.118E, i 1 et seq.

Library References Automobiles *=58 et seq.

CJ.S. Motor Vehicles il 10, 79 et seq.

0 1.

Definitions For the purpose of this chapter the following definitions shall apply unless the context or subject matter requires a different interpreta-tion:-

" Ambulance", means any aircraft, boat, motor vehicle, or any other means of transportation, including a dual purpose vehicle, however named, whether privately or publicly owned, which is intended to be used 481

N ATTACHMENs I

6

~ E I

l (Page 2 of 2) j 1

j i

t EM' 111C 91 PUBLIC IIEALTI!

i

(:

for, and is maintained and operated for, the transportation, of sick, l

vel )

l injured or disabled individuals.

ser

" Ambulance service", means the business or regalar activity, whether l

l for profit or not, of transporting sick, injured or disabled individuals by

(- )

lan ambulance.

(

" Board", means the emergency medical care advisory board estab-ma lished under section seven.

I I

" Commissioner", means the commissioner of public health.

l

" Company", means a corporation, a partnership, a business trust, an g'

association, or an organized group of persons, whether incorporated or gg l

not; or any receiver, trustee, or other liquidating agent of any of the "d'

l foregoing while acting in such capacity.

I 1

" Department", means the department of public health.

go-1

" Dual purpose vehicle", means a vehicle which is used for ambulance op, service even though it is also used for other purposes, including police

{,

and fire purposes.

" Person", means an individual, a company, or an agency or political an' subdivision of the commonwealth.

pa-l The department may define in regulations any term used in this

(

i chapter, provided that such definition is not contrary to a provision of the tio

}

general laws-ser Added by St.1973, c. 948, 6 1.

4 05' Historical Note l

St.1973. c. 946, 61, addmg this chapter, consistie.g of this section and 66 2 to 33.

was approved Oct. 24,1973.

g}g ll 8E v'

Library References E

Physicians and Surreons e=1.

+

an CJ.S. Physicians and Surgeons 6 8 et sN1 Ac

>)

@ 2.

Powers and duties of department For the administration and enforcement of this chapter, the depart-

}

f j

ment may:

(1) establish and enforce rules and regulations for the establishment l,. '

7 l

and maintenance of ambulance services and for the maintenance and j

5h operation of ambulances, including but not limited to rules and regula-ta thi tions governing ambulance personnel, safety, sanitation, equipment, com-i munications, medical supplies and records;

(,-

hu '

(2) establish fees for the issuance and renewal of licenses and certifi-J' tw cates of inspection; 482 s

I

{

105 CMR: ' DEPARTMENT OF pUBLIC HEALTH F

]

(Page_1 of 1) i i

~

170.292: Suoplies An adequate amount of medical supplies and linen for stocking vehicles shall be stored wherever vehicles are garaged.

EXCEPTION: An ambulance service may obtain all medical supplies and linen from a hospital provided that a written agreement for such an arrangement exists between the ambulance service and the hospital.

4 170.295: Non-Discrimination No person shall discriminate on the grounds of race, color, religion, national origin, age or sex in any aspect of the pmvision of ambulance service or in employment practices.

170.296: Out-of-State Ambulance Services 4

(A) Ambulance services located in and licensed in another state are not required to be licensed in accordance with these regulations if they are transporting patients fmm locations outside of Massachusetts to locations within Massachusetts.

(B) No ambulance service shall regularly operate in Massachusetts unless the ambulance service is licensed in accordance with the provisions set forth in these regulations. An out-of-state ambulance service shall be deemed to be regularly operating in Massachusetts if:

(1) the service advertises in Massachusetts, or otherwise solicits business in l

Massachusetts:

(2) the service has a contractual agreement to pmvide ambulance service in Massachusetts: or (3) the service transports persons from lon nons within Massachusetts on a i

routine or frequent basis.

(C) Out-of-state ambulance services which provide only back-up service to Massachusetts ambulance services are exempt from the requirements of 105 CMR 170.296(B). However, such a service must be in compliance with all applicable licensing laws and regulations in the state in which the backup ambulance service is based.

(D) If an out-of-state ambulance service regularly operates in Massachusetts, within the meaning of (B) above, that service shall either maintain a place of business within Massachusetts or make acceptable provisions for Department inspection of the service's vehicles and records. Such service shall meet all requirements imposed by M.G.L. c.111C and these regulations, unless such requirements have been properly waived by the Department, 170.297: Waiver An applicant for a license, or a licensee under 105 CMR 370.500, may apply to the Department for a waiver, for a given period of time, of those requirements with which the service is unable to comply. Such waiver may be renewed.

1 (A) The applicant for a license, or a licensee under 105 CMR 170.500, when applying for a waiver, shall submit the following in writing:

(1) Evidence of a prior good faith effort to comply with each requirement for which a waiver is requested; (2) A statement documenting why the service cannot comply with each requirement for which a waiver is requested, including any financial or other significant hardship resulting from efforts to comply; (3) A statement documenting why non-compliance with each requirement will not cause the service to be unable to render edequate care:

(4) Reasons why conipliance with each requirement is not possible for a given penod of time; and (5) A plan for compliance with each requirement within the period requested on the waiver application, unless the application is for a pennanent waiver in accordance with subsection (B).

12/31/86 105 CMR - 833 r~

I

ATTACHMENT G 105CMR: DEPARTMENT OF PUBLIC HEALTH -

-(Page 1 of 1) 170.292: Supplies An adequate amount of medical supplies and lmen for stocking vehicles shall be stored wherever vehicles are garaged.

l EXCEPTION: An ambulance service may obtain au medical supplies and linen from a hospital provideo that a written agreement for such an arrangement exists between the ambulance service and the hospital.

170.295i Non-Discrimination No person shall disenminate on the grounds of race, color, religion. national origin, age or sex in any aspect of the provision of ambulance service or in e nployment practices.

170.296: Out-of-State Ambulance Services (A) Ambulance services located in and licensed in another state are not required to be licensed in accordance with these regulations if they are transporting patients from locations outside of Massachusetts to locations within Massachusetts.

(B) No ambulance service shall regularly operate in Massachusetts unless the ambulance service is licensed in accordance with the provisions set forth in these regulations. An out-of-state ambulance service shall be deemed to be regularly operatmg in Massachusetts if:

~

(1) the service advertises in Massachusetts, or otherwise solicits business in Massachusetts:

F (2) the service has a contractual agreement to provide ambulance service in Massachusetts; or (3) the service transports persons from locations within Massachusetts on a routine or frequent basis.

(C) Out-of-state ambulance services which provide only back-up service to Massachusetts ambulance services are exempt frcm the requirements of 105 CMR 170.296(B). However, such a service must be in compliance with all applicable licensing laws and regulations in the state in which the backup ambulance service is based.

(D) If an out-of-state ambulance service regularly operates in Massachusetts, within the meaning of (B) above, that service shall either maintain a place of business within Massachusetts or make acceptable provisions for Department inspection of the service's vehicles and records. Such service shall meet all requirements imposed by M.G.L. c.111C and these regulations, unless such requirements ha' e been properly waived by the Department.

v 170.297: Waiver An applicant for a license, or a licensee under 105 CMR 170.500, may apply to the Department for a waiver, for a given period of time, of those requirements with which the service is unable to comply. Such waiver may be renewed.

q (A) The applicant for a license, or a licensee under 105 CMR 170.500, when applying for a waiver, shall submit the following in writing:

(1) Evidence of a prior good faith effort to comply with each requirement for which a waiver is requested; (2) A statement documenting why the service cannot comply with each requirement for which a waiver is requested, includmg any financial or other significant hardship resulting from efforts to comply; (3) A statement documenting why non-compliance with each requirement will not cause the service to be unable to render adequate care:

(4) Reasons why compliance with each requirement is not possible for a

]

given penod of time; and (5) A plan for compliance with each requirement within the period requested on the waiver application, unless the appbcation is for a permanent waiver in accordance with subsection (B).

12/31/86 105 CMR - 833

ATTACHMENT H 105 CMR: DEPARTMENT OF pUBLIC HEALTH (P;ge 1 of 1) 170.002: Authority This chapter is adopted under the authority of M.G L. c.111C and M.C.L c.30A s.2.

170.003: Citation This chapter shall be known and may be cited as 'Regu!stions Goveming Ambulance Services and Coortfinating Emergency Medical Care".105 CMR 170.000. The short form of citation shall be "The Massachusetts Emergency Medical Service Regulations." 105 CMR 170.000.

170.010: Scofie This chapter govems emergency medical services systems, ambulance services, ambulances, equipment, traming and persormel.

(A) Uncertified vehicles may be used to render emergency medical transpetation in the case of a maior catastmphe when the number of certified ambulances capable of emergency dispatch in the locality cf the catastrophe is insuf ficient to render the required emergency medical transportation services.

(D) Nothing in this chapter is intended to preclude the public from choosing any mode of transportation to get to a hospital or other established site of medical care.

DEFINITIONS 170.020: Meaning of Terms The definitions set forth in 105 CMR 170.020 thmugh 170.061 shall apply for the purpose of this chspter, unless the context or subject matter clearly requires a different interpretation.

170 021: Advanced Life Support Advanced Life Support (AIS means the pre-hospital use of medical techniques and skills by qualified persormel who are specially trained and shall include such functions as advanced airway and circulatory maintenance and the management of cardiac disorders.

170 022: Ambulance Ambulance means any aircraf t, boat, motor vehicle. or any other means of transportation, including a dual purpose vehicle, however named, whether privately or publicly owned. which is mtended to be used for, and is mamtamed and operated for, the transportation of sick, injured or d.sabled patients.

170 023: Ambulance Attendant Ambulance attendant means an Emergency Medical Technician trained and certified in accordance with these reFulatens who pmvides emergency medical care to sick or injured persons pnor to and durmg transport by an ambulance.

The tenn ambulance attendant includes the EMT who operates the ambulance.

170.029: Ambulance Service Ambulance service means the business or regular 6ctivity, whether for pmfit or not, of transporting sick injured or disabled mdividuals by ambulance.

4/14/80 105 CMR - 822 i

ATTACHMENT I (Page 1 of 7)

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT l

COMMONWEALTH OF MASSACHUSETTS.

)

et al.,

)

)

Petitioners,

)

)

v.

)

Nos. 89-1306

)

88-1821 UNITED STATES NUCLEAR REGULATORY

)

88-1819 CDMMISSION and the UNITED l

)

88-1817 STATES OF AMERICA,

)

)

-l Respondents.

)

)

)

i DECLARATION OF JAMES D. WATKINS I, James D. Watkins, hereby declare under the provisions of 28 U.S.C. 1746 as follows:

1.

I am the Secretary of Energy and, as such, head of'the United States Department of Energy.

2.

The Department of Energy was established to " promote the general welfare by assuring coordinated and effective administration of Fadaral energy policy ar.d programs."

42 U.S.C.

7112.

In establishing the Department, Congress found that "a stronD national anargy program is needed to meet present and futura entrgy needs of the Nation consistant with overall national economic, ar.vironmental and social goals" (42 U.S.C.

7111(B)), and it charged the Department with, among other things, responsibility for coordinating, formulating and implementing

" national anergy policy * *

• to deal with the short, mid-and long. term anergy problems of the Nation" (42 U.S.C. 71:.2(3));

• promet(ing) the interests of consumers through the provision of aa adequate and reliable supply of energy at the lowest

+ca SC-Id-Namo-3E245^

.I ATTACHMENT I I

(Page 2 of 7) roanonable cost" (42 - U.S.C. - 7112(9)); and "assur(f ng) incorporation of national environmental protection goals in the formulation and implementation of energy programs" (42 U.S.C.

7112(13)).

3.

This Declarattan is provided to inform the Court of the public interest, which the just described sendete of the Department of Energy meltes of special concern to me, in not I

staying the low power testing of the sembrook nuclear power plant recently authorized by the Nuclear Regulatory Commission (NRC).

The specific facts and figures set forth in this Declaration have been assembled by Departmental staff in the regular course of their duties.

4.

I have been advised that the ongoing NRC proceedings involving Seabrock could result in issuance of a license for full power operation by as early as September 30, 1989.

The issue here concerns possible deley in the use of such a full power L

license.

Even though actual. low power testing may take only a few weeks to perform, this testing is designed to permit early discovery and correction of any unanticipated problems that might delay full power operation.

5.

Seabrook's generating capacity is about 1186 MW.

Over 85 billion has been spent building:this plant, which is now completed and awaiting final NRC authorization to enter into full power operation.

As.the following facts demonstrate, New England urgently needs the power that Seebrook is ready to provide, and there are no satisfactory near-term alternative sources of 2

sea e c - t a - < a m o - o w is s n m,,: tt ee *z z 's o

ATTACHMENT I i

(Page 3 of 7) cupply:

(a)

To maintain reliable electric service, most utilities subscribe to a reMability standard which requires a reserve margin,.or en excess of generating capacity over peak demand, of 15 to 20 percent.

Although the reserve margin in New England is currently at about 24 percent, the actual operating margin has en occasion fallen as low as 3 percent due to equipment failures and/cr exseerbated peak demands (which, in New England, occur in' both summer and winter).

Moreover, in 1987 and again in 1988,

(

the demand for electricity in New England grew at about 5 percent a year.

This sustained and relatively rapid demand growth reflects both a~rebust regional economy and several very het summers and was approximately double the rate of projected growth for the region.

If Saabrook does not become operational, and if demand grows only at a modest 2.5 parcant rate, regional reserve margins could fall below 20 percent later this year.

As reserve margins fall below 20 percant, the system becomes more vulnerable to contingencies.

During the past year, in fact, New England suffered repeated " brownouts" and rolling " blackouts," and similar emergency proceduras will probably again become necessary as soon as this summer.

An urereliable elsetricity supply system can inhibit regional economic growth and diminish the quality of life of our cittaans.

For New England, the danger of falling below the point where adequate electric service can be assured is both real and immediate.

Within a year of coming on-line, Sasbrook could 3

90g 9C-Id-NdMO-DENSU "Y

T1

ATTACHMENT I l

(Page 4 of 7) provida ensegh powar to cdd en additional 6 parcent to New England's electric reserve margin.

(b)

There are no satisfactory alternative sources of supply to Seabrook that could meet New England's near-term energy needs:

(1) Although the region's existing oil-fired steam plants could conceivably be used more intensively, this would increase the region's and the Nation's dependence on imported oil and regional reserve margins still would be insufficient to deal with extreme weather or equipment failures.

(ii)

There has been no significant construction of coal-fired plants in New England for the last two decades and, avan if strong environ = ental opposition to such plants could be overcome, it would take 5 to B years to build new coal-fired capacity.

(iii)

New England presently has very limited gas pipelina capacity and, although there are piens to expand gas pipeline capacity, new lines and gas-fired combined cycle units could not be available until the mid 1990s.

Gas-fired combustion turbinas could be built more quickly, but they would be more expensive to operate and the uncertainties related to completion of the propossd natural gas pipelina projects make this alternative uncertain as well.

(iv)

Relying on imported power, either from Canada or from other regions of the United States, also will not provida energy reliability and adequacy.

The future development and availability of Canadian electricity is uncertain at best and, in the time it would take to build new transmission lines, strong damand growth in other regions of the United States is expected to depiste any power surpluses these 4

coa sc-ta-Namo-ouxsn m,,i: :

se TE 10

E

~.

ATTACHMENT I-(Page 5 of 7) regions currently have.

(v)

Finally, while there have been aggressive conservation programs carried out by utilities in'New England, amperience has shown that these conservation efforts cannat,ke;p up with the rapid economic growth in the region and with cettsaquent electric demand.

5.

Energy security, economic and environmental considerations also weigh strongly against any delay in Seabrook coming on-line:

(a)

Nearly half of the installed generating capacity in New England is now designed to run on cil, and that region is hoev11y and uniquely dependent on imported oil.

Furthermore, the Nation as a whole is becoming increasingly dependent on insecure sourens of imported oil to meet its energy needs.

By a conservative estimate, Seabrook will generate about 6.8 billion kilowatt-hours each year, which would displace demand for roughly 11 million barrels of oil a year.

At the recent crude oil price of approximately $20 per barrel, running Seabrook could reduce our trade deficit by sors $220 million a year, and simultanoeusly enhance the Nation's energy security.

(b)

Since the costs of building Saabrook already have been incurred, the relative economics of alternative sources of supply depend on a comparison between the costs of operatino Seabrook and the costs of develooina and operatino alternative facilities.

Such a comparison makes it clear that there is no economically

{

sound alternative to Seabrook, which currently stands ready to l

produce powar at a levelized cost of operation of about 2.7 5

sea ec-t4-namo-ouxsn My,,: ti se 's e 's o I

r' ATTACHMENT I:

i (Page 6 of 7)

I cOnts/kilcwatt-hour:

(1)

The levelized costs of an equivalent incramant in oil-fired capacity would be about 8.1 cents / kilowatt-hour for new combined cycla ganaration (which would take about 5 years to develop) and about 11.1 cents / kilowatt-hour for new combustion turbine' generation (which )

would take 2-4 years to develop).

-(11)

The levelized costs of

{

an equivalent increment in new coal-fired captcity (which would taks about 5-8 years to develop) would be about 5 6 cents / kilowatt-hour.

(iii)

The levelized costs of an equivalent l

increment in new gas-fired capacity would be about 5 2 cents /kd'

.tt-hour for combined-cycle units (which would take abcut 5 ytars to develop) and about 6.5 cents / kilowatt-hour for combustion turbines (which would take about 2-3 years to develop).

(iv)

Current contracts suggest that it would cost about 4.2 to 4.9 cents / kilowatt-hour to import additional electricity from Canada, if such electricity is available at all (c)

Although there are environmental issues related to operating Seabrook, the alternatives to operating Seabrook also raise environmental issues.

Of particular concern are the " Acid Rain" and " Greenhouse" affects of fossil-fired plants, which amit sulfur dioxide, nitrogen oxides and carbon dioxide.

These are especially serious concerns in New England, whose electric utilities in 1987 amitted an estimated 390,000 tons per year in sulfur dioxide and 130,000 tons per year in nitrogen oxides --

which are precursors to " Acid Rain" -- and an estimated 49 mallion tons per year in carbon dioxide -- which is one of the 6

l eca sc_ta_namo_ownsn nyt,: 1T se ee so

L'

-ATTACHMENT I

(,Page 7 of 7) gases'that some scientists believe is a major contributor to possible atmospheric warming.

Replacing Seabrook with equivalent coal-fired capacity could add up to an additional 20,000 tons per year in both sulfur dioxide and nitrogen oxides emissions, and an additional 6 million tons in carbon dioxide emissions.

Similarly, replacing seabrook with equivalent oil-fired capacity could produce 5,000 tons of additional yearly sulfur dioxide emissions, 8,000_ tons of additional yearly nitrogen oxides emissions, and 4 million tons of additional yearly carbon dioxide emissions.

And although the emissions probleme from gas-fired plants are slightly less dramatic, even they could result in additional yearly emissions of 6,000 tons of nitrogen oxides and 3 million tons of carbon dioxide.

7.

Considerations of energy reliability, energy security, economics and environment thus all indicata a pressing need for Seabrook.

Any unnecessary delay in bringing this plant on-line would be, quite simply, bad energy policy and flatly inconsistent with the public interest.

I declare under penalty of perjury that the foregoing is

': rue and correct.

Executed on May 19, 1989 es D. Watkins dmiral, U.S. Navy (Ratired) 7 l

C1d GC-Id-MdMO-DENSA gytt: ;t SG *EE

'G 0 u__

L.

I 4

i r

main UMC q

e i

'89 JUL 14 P2 :01 j

1 CERTIFICATE OF SERVICE

(

VFIM tr oneoftheattorneySU2Shh'deserviceofk}Ie,Ah I, Jeffrey P. Trout, herein, hereby certify that on July 10, 1989, I ma the within document by depositing copies thereof with Federal Express, prepaid, for delivery t.o (or,.where indicated, by depositing in the United State-mail, first class pestage paid, R

addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)

U.S.

Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814' Bethesda, MD 20814 Administrative Judge Richard F. Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.

Sherwin E. Turk, Esquire EaCollom Office of General Counsel 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission One White Flint North, 15th Fl.

11555 Rockville Pike Rockville, MD 20852 John P. Arnold, Esquire Diane Curran, Esquire Attorney General Andrea C.

Ferster, Esquire George Dana Bisbee, Esquire Harmon, Curran & Tousley Assistant Attorney General Suite 430 Office of the Attorney General 2001 S Street, N.W.

25 Capitol Street Washington, DC 20009 Concord, NH 03301-6397

• Atomic' Safety and Licensing Robert A.

Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P.

O.

Box 516 Commission Manchester, NH 03105 Washington, DC 20555

I 3

Philip Ahrens,. Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's' Office l

Department of the Attorney 10 Central Road 1

General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire J

i Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.

Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.

I Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 i

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (Attn:

Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Leonard Kopelman, Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.

Concord, NH 03301 77 Franklin _ Street (Attn:

Herb Boynton)

Boston, MA 02110 Mr. Thomas F. Powers, III Mr. William S.

Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 _ - _ _ _ _ ____________________-_-_______________ _ _ - -

=

v.

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'Mr. Richard R. Donovan Judith H..Mizner, Esquire' Federal Emergency Management 79 State Street, 2nd Floor

-Agency Newburyport, MA 01950

' Federal Regional Center

-F p

h' 130 228th Street, - S.W.

Bothell, Washington ~ 98021-9796 Ashod N. Amirian, Esquire 145 Sooth Main Street g

P.O. Box-38 Bradford, MA 01835 f

Ytzt J6ffr&f P. Trout-(*= Ordinary U.S.

First Class Mail).

.