ML20247E731
| ML20247E731 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/23/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8700 ASLBP, OL, NUDOCS 8905260324 | |
| Download: ML20247E731 (246) | |
Text
{{#Wiki_filter:. _ _ - _ _ _ _ _ _ _ - _ _ - _ UNITED STATES NUCLEAR REGULATORY COMMISSION O,R,,h,kAn m e. _ l , ....---------------------............................... , l ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW RAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING l
l EVIDENTIARY HEARING J l 1
'1 Pages: 22264 through 22506 i Place: Boston, Massachusetts Date: May 23, 1989 i
abh N *' HERITAGE REPORTING CORPORATION oskWA ,=== O g* gM 1228 L Street, N.W., Suite det Wasedageon, D.C. 20005 (2e2)62Nees . efot-l 3 ggg52ggggQ $$j fc T
l ( ; [ 22264 ) l-UNITED STATES NUCLEAR REGULATORY COMMISSION
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-( l ATOMIC SAFETY AND LICENSING BOARD I In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL
.,. NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING Tuesday, May 23, 1989 Auditorium Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts [' N The above-entitled matter came en for hearing, t ( pursuant.to notice, at 9:00 a.m. BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN
, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
.A- Heritage Reporting Corporation (202) 628-4888
(/).
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l I i 22265 l I APPEARANCES: p+ - 5-j
For the Aonlicant:
THOMAS G. DIGNAN, JR., ESQ. GEORGE.H. LEWALD, ESQ. KATHRYN A. SELLECK, ESQ. JAY.BRADFORD SMITH, ESQ.
' ~
- JEFFREY P. TROUT,.ESQ. ,
GEOFFREY C COOK, ESQ. 1 Ropes & Gray
- One International Place Boston, Massachusetts 02110-2624 f
For the NRC Staff: SHERWIN E. TURK, ESQ. ELAINE-I. CHAN, ESQ. EDWIN J. REIS, ESQ. RICHARD BACHMANN, ESQ. Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 For the Federal Emeroency Manacement Acency:
/m). H. JOSEPH FLT9N, ESQ.
LINDA HUBER McPHETERS, ESQ. N ,/ Federal Emergency Management Agency 500 C Street, S.W. Washington, D.C. 20472 For the Commonwealth of Massachusetts: JAMES M. SHANNON, ATTY. GEN. JOHN C. TRAFICONTE, ASST. ATTY. GEN. ALLAN R. FIERCE, ASST. ATTY. GEN. PAMELA TALBOT, ASST. ATTY. GEN.
. MATTHEW BROCK, ESQ.
LESLIE B. GREER, ESQ. Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 j\O,/ l Heritage Reporting (202) 628-4888 Corporation i
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) l l 22266 l APPEARANCES: (Continued) For the State of New Hampshire: GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN. State of New Hampshire 25 Capitol Street Concord, New Hampshire 03301 , For the Seacoast Anti-Pollution Leacue: ROBERT A. BACKUS, ESQ. Backus, Meyer & Solomon 116 Lowell Street P.O. Box 516 Manchester, New Hampshire 03105 JANE DOUGHTY, Director Seacoast Anti-Pollution League 5 Market Street Portsmouth, New Hampshire 03801 For the Town of Amesbury: BARBARA J. SAINT ANDRE, ESQ. Kopelman and Paige, P.C. 77 Franklin Street Boston, Massachusetts WILLIAM LORD Town Hall
. Amesbury, Massachusetts 10913 For the City of Haverhill and Town of Merrimac:
ASHOD N. AMIRIAN, ESQ. P. O. Box 38 Bradford, Massachusetts 01835 For the City of Newburvoort: BARBARA J. SAINT ANDRE, ESQ. - JANE O'MALLEY, ESQ. Kopelman and Paige, P.C. 77 Franklin Street Boston, Massachusetts 02110 Heritage Reporting Corporation (202) 628-4888
22267 APPEARANCES: (Continued) For the Town of Newbury: R. SCOTT HILL-WHILTON, ESQ. Lagoulis, Clark, Hill-Whild.on & McGuire j 79 State Street Newburyport, Massachusetts 01950 For the Town of Salisbury:
- CHARLES P. GRAHAM, ESQ.
Murphy and Graham 33 Low Street Newburyport, Massachusetts 01950 For the Town of West Newburv: JUDITH H. MIZNER, ESQ. Second Floor 79 State Street Newburyport, Massachusetts 01950 For the Atomic Safety and Licensina Board: O ROBERT R. PIERCE, ESQUIRE Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 9 Heritage Reporting (202) 628-4888 Corporation ______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ __. _ _n__
! I 1' 22268 IHDEX WJTNESSES: _ DIRECT CROSS REDIRECT RECROSS EXAM Richard W Donovan by Mr. ?raficonte 22299 EXH7 BITS: IDENT 2 REC. REJ. DESCRIPTION: Massachusetts Attorney General: 99 22300 22340 Declaration of Vernon E. Adler and attachments 100 22341 22341 Testimony of Geary W. Sikich and John Paolillo on Behalf of Massachusetts Attorney General James M. Shannon, Town of Hampton, New England Coalition of Nuclear Pollution and SAPL re: TOH/NECNP EX-1 (a) & (b) 61 (Prev. ) 22383 FEMA 4-28-87 letter from McLaughlin to Chilk re: comments on proposed rulemaking Heritage Reporting Corporation (202) 628-4888 - - _ _ - l
22269 IEDEX f'h Q INSERTS: PAGE i Board's May 23, 1989, order 22505 Dismissing Contentions and Bases l
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22270 1 PBQCEEQ1NQE 2 JUDGE SMITH: Good morning. 3 Is their any preliminary business? 4 MR. DIGNAN: One matter, Your Honor. 5 1 was asked to reflect on the record of the 6 proceeding, that after we adjourned last night the Chairman 7 of the Atomic Safety and Licensing Appeal Panel, Judge Kohl, , 8 convened -- I don't know whether she convened it or the 9 staff convened it -- a conference call which involved 10 myself, Staff counsel Turk, Judge Kohl, and Mr. Steve Jonas 11 of the Attorney General's office. 12 The purpose of that was to clarify what the Appeal 13 Panel Chairman was expecting to have filed, if anything, i 14 this morning. And the substance of what she reflected in 15 that call was as follows: that they expected to receive a 16 filing from the Commonwealth that there was no requirement
. 17 that either the Staff or the Applicant file unless and until 18 they heard from the Appeal Board that a further filing was 19 necessary.
20 And I'm reflecting that on the record because it 21 was an untranscribed phone conversation and that will be a , 22 record of it having been held. 23 JUDGE SMITH: I understand that the relevant - 24 transcript has now been transmitted electronically to our 25 office and will be printed out and delivered to the Appeal Heritage Reporting Corporation (202) 628-4888 I l \ r I l l
22271 1 Board in short order. L 2 Is that right? Mj 3 MR. PIERCE: Yes~. l 4 MR. DIGNAN: Your Honor, may I ask: could that i I 5 also be sent to the Commission's lawyers, Ms. Nordlinger? 6 I have faxed down there a reply to the original 7 Commission motion in which I reflected that I would also 8 file the transcript with the hard copies that will go out 9 Federal Express today. 10 But in case the Commission has some interest in 11 seeing the transcript, if that could also be sent over there 12 I think it might be useful, with the Board's permission. 13 JUDGE SMITH: All right. 14 Would you, Mr. Pierce, ask our office to hand 15 deliver'a copy of the transcript to Ms. Nordlinger at the 16 Office of General Counsel as soon as it is available. 17 I want to warn the parties that you're dealing 18 again this morning with a disgruntled Chairman. I have 19 wrestled with the biggest pile of sloppy papers that I've 20 seen in a long time. And my patience on this subject is 21 just about exhausted. 22 Let's begin with the testimony of Sikich and
- 23 Paolillo.
24 MR. BROCK: Your Honor, could I just advise the 25 Board of one point on that before the Board proceeds to Heritage Reporting Corporation l 7- (202) 628-4888 i _ _ _ - _ _ - - l
22272 1 address the testimony? 2 This is by way of context for the Board's ruling, 3 although I don't believe it changes the legal issues before 4 the Board. 5 Whatever the Board's pleasure? I will wait if you , 6 like.
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7 JUDGE SMITH: I just want to point out to you that 8 this was a mess. I mean, this was a physical mess. 9 We had the testimony of Geary Sikich and John 10 Paolillo stapled. Fortunately, one of the documents does 11 make some effort to be cohesive accompanied by many, many, 12 many, many pages of unbound loose sheets of paper, many of 13 which are not very legible. In many of which there was no 14 quality checking of the Xerox reproductive quality. And as 15 a consequence we wasted a lot f time trying to dig through 16 these papers and try to find the relevant documents. 17 Now, we are going to come to Mr. Trout, too. He's 18 going to be here later on. He filed a pleading that had 19 similar weaknesses which I will point out to him. 20 At this stage of the hearing the Board is awash I 21 with papers. We have many, many papers. ) I 22 Also, because of the fact that we're conducting a 23 hearing, unlike most courts, away from our office, much of j 24 our work is being done on airplanes, in airport waiting 25 rooms, in hotel rooms and I just can't handle loose sheets l Heritage Reporting Corporation , (202) 628-4888 1 I
- f-2227.3 L_ 1 of. paper. I just can't handle it.
['g . ( 2 And we lose them and then we spend time trying to
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'3 find them. And this is not the standard.
4 I want your attention,.Mr. Dignan, we have a 5 problem here. 6 MR. DIGNAN: Yes, Your Honor. 7 JUDGE SMITH: And I'm calling upon you as lead
, 8 counsel for the Applicants to take charge of this problem.
9 I.want all the pleadings filed before this Board 10 to be of at least the quality of papers that would be filed 11 in the United States District Court. As far as legibility; 12 as-far as being bound; as far as being organized. 13 Our problems are greater than that of a court. As 14 I pointed out, we are not operating out of our chambers, out
.( 15 of our courtroom. We are gypsies so to speak. Much of our 16 work is done on airplanes, hotel rooms, places other than
, 17 our office.
18 I have here on top of my table just piles of 19 uncollated paper. Yours is a mess, just a mess. It is 20 almost insulting to the Board to give us a stack of loose 21 sheets of paper like this. Difficult to read. We have, 22 however, read it. And I'm going to come to you, Mr. Trout. 23 Now, let me point out that you two gentlemen are 24 the unfortunate targets or objects of a time when this 25 problem has just reached a point of exasperation. You're i; Heritage Reporting Corporation
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22274 1 only examples. Others have done this to us, too. Just dump 2 papers. Just dump them. Get rid of them. Get your job 3 done, turn it over to the Board. And we're not going to 4 accept it anymore. 5 I'm going to return this mess to you and you can . 6 give it back to us in workmanlike form. There are sheets of
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7 paper all out of order. 8 Now, the Applicants' motion in the nature of 9 objection in limine of the testimony of Geary Sikich and l 10 John Paolillo. j i 11 The first part of the motion relates to -- j 12 MR. BROCK: Your Honor, at this point would it be 13 appropriate for me to -- I'm just offering this by way of 14 preliminary remarks, and I think the Board may understand ; 15 why I'm speaking. 16 This morning, Your Honor, we made the decision in , 17 our office that -- as I understand Mr. Trout's motion he has 18 moved to exclude all of the Paolillo testimony as well as 19 the deposition testimony which would consist of four school 20 superintendent interviews by Mr. Paolillo and two 21 depositions of school superintendents. 22 What we have decided, Your Honor, is that in the 23 event the Board rules our way on the motion, that we would
, 24 be offering into evidence the testimony of Mr. Paolillo and 25 Attachments 6 through 10 of the testimony as it was j t
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4 22275 1 prefiled. And that would be Attachment 6 or certain
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( ) 2 discovery, interrogatory responses by Applicants.
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3 Attachment 7 is interrogatory responses by the 4 State of New Hampshire. 5 Attachment 8 are the two depositions to which I 6 referred. 7 Attachment 9 are the four interviews of Mr. 8 Paolillo. 9 And Attachment 10 is a one page document 10 indicating that, I believe it was generated by New Hampshire 11 Emergency Management during the exercise. 12 The reason is this, Your Honor, the issue on the 13 table is -- 14 JUDGE SMITH: Well, what is it you're going to do?
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f, ) 15 If you lose, what are you going to do? x/ 16 MR. BROCK: If we lose, Your Honor, what I'm , 17 saying is, all the testimony will be gone. We will have 18 nothing to offer on Sikich-Paolillo. 19 If we win, we are going to simply offer Mr. 20 Paolillo and the documents to which I have referred. 21 Because I believe they are sufficient for the record and for 22 the Board to make a determination as to whether or not that 23 was the appropriate -- 24 JUDGE SMITH: Now, if you lose -- ) 1 25 MR. BROCK: Yes, Your Honor. fx Heritage Reporting Corporation ( (202) 628-4888
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f u l 22276 1 JUDGE SMITH: -- and you will. You have. What 2 will Paolillo testify to because the double hearsay 3 objection goes to Attachments 8 and 97 4 MR. BROCK: That's correct, Your Honor. 5 If we lose the motion there will be no Sikich- . 6 Paolillo testimony on Hampton Coalition 1A and 1B; there
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7 will be no testimony. 8 JUDGE SMITH: Then what did you say? 9 You were offering Paolillo for what? 10 MR. BROCK: I was saying -- j i 11 JUDGE SMITH: Only if you win? 12 MR. BROCK: That's correct, Your Honor. 13 JUDGE SMITH: I got you. Well, you lose. 14 The first phase of the objection pertains to the 15 Bases A and B of Contention, Town of Hampton NECMP Exercise 16 Contention 1. The issue is whether the bases gave
. 17 sufficient specificity as to whether general school 18 administration is covered by the bases.
19 We have reread the bases carefully and Bases A and 20 B speak for themselves. They are very teacher specific. 21 They emphasize the particular relationship between teachers 22 and students. They talk about teacher-specific situations, 23 that teachers signed the petition. 24 And there is no mention or not even an implication f 25 in these bases that other school administrators are Heritage Reporting Corporation (202) 628-4888 i
22277 1 included. Therefore, the testimony as to other school
) 2 administrators is beyond the specifics of this. And %,e 3 although the term, not relevant, is not exactly one I would 4 have selected, it's as good as any, but it is beyond the 5 notice given by these baoes.
6 With respect to Attachments 8 and 9, they are 7 double hearsay and I think we discussed the infirmities of 8 double hearsay before. There is no need to do it again. 9 But the argument that Mr. Brock makes in reply, as 10 I understand it, is that this particular double hearsay is 11 nonetheless reliable as it has been confirmed or 12 corroborated apparently by other means of inquiry. 13 If that is true, we don't know. But even if it is 14 true it does not redress the wrongs that would be created by s
) 15 double hearsay, because that simply would be circular.
x-16 There still is no opportunity to confront the persons whose 17 statements are being offered, the double hearsay declarant. 18 And the argument that the information is 19 corroborated by other sources not only doesn't help, but it 20 is in contraindication to even any need to bring in double 21 hearsay as you purport to have reliable information that 22 establishes the same facts.
- 23 We grant the motion in its entirety. However, we 24 have not gone through the particular items of testimony 25 which are involved and agreed or disagreed with the ex Heritage Reporting Corporation
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22278 1 particular language. That's for you to do. 2 I understand that if we grant the motion in 3 principle you can see that the testimony is pretty well 4 wiped out. 5 , MR. BROCK: That is correct, Your Honor. 6 JUDGE SMITH: So there is nothing for us to do. 7 Here, I'm going to return all this to you. . 8 Do you wish to offer it as a rejected exhibit? 9 MR. BROCK: Yes, Your Honor. 10 JUDGE SMITH: All right. Here, take that. And 11 then return it as a rejected exhibit in a form that can be 12 handled. 13 MR. DIGNAN: Your Honor, could the record clearly 14 reflect that, as I understand it, the Board has granted the 15 motion and that the balance of the testimony is being 16 withdrawn by the Commonwealth; is that correct?
, 17 That was not targeted by the motion. I especially 18 am anxious that this be clear if it's going in the rejected 19 exhibit file, because the ruling of the Board is only to the 20 matters, as I understand it, covered by the motion and the 21 balance is voluntarily withdrawn. .
22 MR. BROCK: That is correct, Your Honor. 23 MR. DIGNAN: Thank you. 24 JUDGE SMITH: Now, we have the Staff's response to 25 the Attorney General's motion for leave to file late filed , Heritage Reporting Corporation (202) 628-4888
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22279 r~s 1 contentions, which we haven't had a chance to read yet. k/- s 2~ I suggest that we just take a moment. It's not 3 very long, just take a moment right now and do it. It was 4: just served at the opening of the hearing upon the Board or
. . - 5 a few minutes before.
6 (Board reviewing documents.) f 7 JUDGE SMITH: Give me a moment to clear my desk
.a 8 here for this issue.
9 (Pause) - 10 JUDGE SMITH: Mr. Trout. 11 MR. TROUT: Yes, Your Honor. 12 JUDGE SMITH: While we are on this subject. I 13 hold in my hand here Applicants' response to Mass AG's (}'
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14 motion to admit late filed contention basia. It is not even 15 stapled. It is just a bunch of loose papers. 16 I have attached to that -- no, not attached, in a
, 17 free-flowing form somehow accompanying the motion, some 18 exhibits. Exhibits A through whatever, G. They are not 19 bound together. They do happen to be stapled, however,
.20 which is helpful and we are grateful for that much at least.
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21 I spent a lot of time on the airplane trying to 22 read through your motion, your pleading, and it was very, 23 very difficult. Because I put the papers down and they 24 would come apart. I don't carry a stapler on the airplane 25 with me. b
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22280 1 Some of the exhibit markings are almost illegible. 2 But more than that, you had superfluous papers in there that 3 are only marginally relevant, that occupied so much of our 4 attention that we don't have time to -- and the one that 5 comes to my attention here is Peter Agnes to Charles V 6 Barry. Now, the relevance of that to your position is very, . 7 very remote. And it was put in there, I believe, mostly 8 because of opportunity or cuteness. And it wasn't even a 9 fair reference. 10 It was cited in your pleading for the exact 11 opposite of the statement made in that document. I do not 12 regard this to be typical of the quality of the papers that 13 I have received from Ropes and Gray. And certainly far 14 below the standard that we are going to insist upon 15 hereafter. 16 We want good clean, well-organized papers, easy to 17 handle and easy to read. And we don't want cuteness. We 18 don't want extra arguments. We want you to be sparing of 19 our time, sensitive that there is only one Board and every 20 bit of information that is offered in this proceeding has to 21 pass through us. It's a choke point.
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1 22281 j- 1 JUDGE SMITH: We spent a lot of time on this
's 2. pleading that was unnecessary. I know Mr. Dignan will tell 3 Lyou this, that you-don't want to have a frustrated Board 4 reading your arguments. You want to have a Board that is in l - , 5 a good frame of mind, and I was not.
6 MR. DIGNAN: Your Honor, if I may briefly respond.
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7 First of all, the remarks are well taken and you
- 8. can be assured your admonitions will be observed to the 9 letter.
10- JUDGE SMITH: Really, both of you, I want you.to 11 go back. Mr. Traficonte, here, you are here, too, and you
't 12 missed this.
13 :MR. DIGNAN: Well, Your Honor, could I make one j/~7 14 additional point, and that is this? 15 I. don't want to leave a misimpression here. Every 16 pleading that comes out of Ropes & Gray I sign off on. And
, 17 these very excellent young _ people who work for me, yes, they 18 are responsible for the initial draftsmanship. But the 19 criticism properly also is directed at the senior lawyer.
20 JUDGE SMITH: I put it to the person that signs. 21 It's fine. You want to take a stand. 22 MR. DIGNAN: I understand. 23 JUDGE SMITH: I'm calling upon you to stop it. 24 . MR. DIGNAN: And so I did want to assure you of
'25 that. That documents aren't coming out without my review,
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22282 1 and so the criticism properly is directed at me as well. 2 And I can assure you that your admonitions will be adhered 3 to to the letter. And to the extent we fell below our usual 4 standard of high quality, I apologize to the Board. 5 JUDGE SMITH: Well, Mr. Traficonte and Mr. Dignan, 6 you are both here. I have just caught Mr. Brock at a time 7 when the Board was frustrated with the quality, the physical . 8 quality of the pleadings put before us. And I am referring 9 specifically to loose papers, unbound pleadings, pleadings 10 that come in several parts without even a rubber band to 11 hold them together. 12 I'm convinced that no such pleading would ever be 13 filed before the Appea; Board and certainly never to the 14 Commission, and heaven forbid, ever to the United States 15 District Court. And yet we have even a greater need for 16 well organized, well bound pleadings, because we are working , 17 on the run. We are working in airplanes. We are working at 18 home. We are working in waiting rooms. We are working in 19 hotel rooms. We are working all over the place. And it is 20 very, very hard to keep papers that are not bound together 21 and you have to be very conservative of our time if you want , 22 , fair and complete attention to your arguments, your written 23 arguments and your written pleadings. 24 The parties have been in a hurry, I think, and 25 have overlooked the need to treat us with the same respect Heritage Reporting Corporation (202) 628-4888 ,
i 22283 1 that you would treat a court of record in the quality of the
- ,/~'N 2 pleadings that you are offering. And hereafter we will
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'"'Y 3 insist upon it. Mr. Brock will show you the example that 4 I'm talking about.
5 Here's another example. You attached Exhibit t to 6 your response, Mr. Trout. There was some arguably marginal 7 relevance, but it took a long time to wade through it and 8 figure out just what it was even though you allude to it. 9 But you just can't refer to a sentence here and a sentence 10 there and attach a whole, big document without distracting 11 the Board. 12 Here you attached memorandum and order from the 13 onsite emergency planning board. It just wasted our time. 14 It just cluttered up the pleading. ( ; 15 Now that we are oriented, the Board does have some
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16 questions before we rule on this issue.
. 17 NRC Staff's response does not add anything that 18 was not covered in the Applicants' response to the late 19 filed contention. In fact, it is not as helpful as it could 20 have been if it had taken into account the earlier 21 ' pleadings. The issues weren't really fully raised until the 22 Massachusetts Attorney General answered Applicants' response 23 to the motion to admit the late filed contention.
24 I will now staple your response. 25 MS. CHAN: Your Honor, this is the response that Heritage Reporting Corporation
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22284 1 the Staff would have filed prior to the receipt of the Mass 2 AG's May 18th reply. The deputy assistant general counsel 3 requested that I inform the Board that he reviewed the Mass 4 AG reply, and that the Staff position he had enunciated 5 earlier was unchanged. . l 6 JUDGE SMITH: The Staff position.
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7 MS. CHAN: That is set forth -- 8 JUDGE SMITH: The bottom line position. 9 MS. CHAN: Yes, that is set forth -- 10 JUDGE SMITH: Well, all we have here is another 11 eight unfocused pages that just don't help, because the real 12 meat of the Attorney General's argument came up in the 13 response which is not the way things should be. I concede 14 that. But it's the way the Board ordered it. 15 Mr. Fierce, I guess we told Mr. Fierce he wouldn't 16 have to be here. , 17 MR. TRAFICONTE: Mr. Fierce understood from 18 colloquy with the Board that unless something was raised by 19 the Staff that was new that you would not entertain argument 20 from Mr. Fierce on what he has already set forth in both the 21 original motion and in this response. 22 In reliance on that, he went on a very long 23 planned canoe trip actually. But if you want to have us 24 argue it, or ask questions in some particulars, I think we 25 are capable of answering the questions. Beritage Reporting Corporation (202) 628-4888
22285 1 JUDGE SMITH: Well, see if you can. Let's go
) 2 through the analysis that we have made so far, and we do
.J' 3 have some questions.
4 The Applicants assert that the motion for the late 5 filed contention has to be denied based upon two categorical 6 reasons one is that it's res judicata. We have already
. 7 denied admission of the same issue on, they say, I think 8 three occasions, and it may be that many in different 9 versions for different reasons. And also that there is not 4
10 good cause for a late filing. 11 Now, the earlier contention was an exercise 12 contention, and this one, they ask us to bear in mind, is a 13 SPMC contention and it is to be treated as a traditional 14 contention and it doesn't have to meet the more restrictive u 15 standards that an exercise contention has to meet because of 16 ALAB-903, if I understand the argument and I think that's a 17 relevant argument. 18 And it is true that we did view the earlier one 19 under the 903 standards, and that was the reason why we 20 rejected it. And I am going to ask parties to feel free to 21 correct us if I am wrong about this, because we didn't have 22 access during the time I was reviewing this to the
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23 transcripts and to all the papers involved. I'm going 24 largely by memory here. 25 We rejected the contention in the first instance
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22286 1 because we did not believe it met the 903 test with < > 2 particular reference to whether it was a correctable 1 3 problem, and we waved aside parking problems demonstrated 4 during the exercise as being not one which would require a 5 revision of the plan and one that we thought was just a . 6 readily correctable problem.
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7 I don't recall that we got to -nether thr.t was a 8 significant aspect to the plei. I guess we would have to 9 say that it'would be a significant aspect to the plan, but 10 we concentrated on the fact that all we saw was sort of a 11 car management problem and not something that would require 12 a significant revision in concept of the plan. 13 And I think that was a correct ruling except today i 14 it is being put to us in a different light. And that is, 15 it's not an easily correctable matter and that it is 16 inherently, apparently, impossible at the Beverly Center to
, 17 expand parking. end furthermore, because of the location of I 18 it some traffic management is needed to make available the 19 actual monitoring capacity.
20 You have a aystem where you would have a choke 21 point because of inadequate parking and traffic management, 22 and it is not readily correctable. ,
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23 So I think that ovy :.mplication we are being told l I 24 that perhaps we erred in our first ruling that it was a 25 readily correctable matter, but we're not asked to revisit Heritage Reporting Corporation (202) 628-4888 -
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'22287
/mg :1 'that. .But it.does raise the question did we have the u, s 2 correct information.and did we make the correct ruling with-
-3 respect to exercise. contention in particular respect to
.4 whether the matter was readily. correctable
. 5. , And incidentally, I don't recall that the original 6 contention included any aspects of traffic management. It
,' ' 7 simply was a' question of how many parking places do you
, 8 have, and now you've added a traffic management aspect to it 9 whic h was not covered. In that event, that would not be res 10 judicata.
11- As an aside, it seems that the Attorney General's 12 response -- I'm still on the issue of res judicata.-- that' 13 you seem to concede that the vehicle occupancy rates were 14 decided by the Board and it is res judicata, and that.would 15 be our ruling. 16 However, there was the.50 percent, not 80 percent
. 17 of the beach population dichotomy. The Attorney General 18 believes that 80 percent is the number,. and we found 50 19_ percent.
20 Do you concede that we had originally decided that 21 in our partial initial decision? You are silent on that on 22 the response. That's one of the questions I would have 23 asked Mr. Fierce.
'24 MR.;TRAFIC'NTE:
O I would like to check that. I 25 think it's our view that you did not decide that issue. t Heritage Reporting Corporation
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t 22288 1 JUDGE SMITH: Did not decide it. 2 MR. TRAFICONTE: Did not decide it. , 3 JUDGE SMITH: It's my view that we did, and again 4 I guess it's right here in this -- 5 - MR. TRAFICONTE: In the PID. . 6 JUDGE SMITH: -- decision, but the real issue
^
7 before us now is that not that it is res judicata, because 8 it is being put before us again on the argument that there 9 were four additional monitoring stations added at the 10 Beverly station, and certainly that was not before us. 11 Now I don't know if your argument is that that 12 additional one is so different in degree and amount that it 13 makes the issue new. I think that is your argument. It's 14 an aggravation of a problem and we have to take it into 15 account. 16 We just don't buy the argument by Mr. Reis or by
. 17 Mr. Trout that the partial initial decision adopting the 18 formula used by New Hampshire for the calculation of the 19 population who are expected to arrive at the Beverly center 20 put the Attorney General on notice. So that argument we
~
21 just reject out of hand. 22 We went over the different items that the 23 Applicants say were notice to the Attorney General that they 24 should have been earlier with this contention. And when it 25 really boils right down to it the only real notice that they { Heritage Reporting Corporation (202) 628-4888
1 22289 1 had is that there would be four new stations at the Beverly
\.
lq ), 2 center. -And.that notice was received in. late January of 3 '89. The rest of it is just. fluff. It doesn't add 4 anything. In fact, as I just admonished Mr. Trout, it was a 5 distraction from the Board, a waste of time.
- B 6 The question that we have that we were wondering
- 7 about, which we see as the turning point, is was the notice 8 in late January '89 sufficient notice that there would be an 9 exacerbated traffic problem and parking problem; was that , {
10 sufficient notice. 11 And I don't know. I can decide both ways on it. 12 I guess those are the arguments we would have liked to have 13 heard from Mr. Trout'and Mr. Fierce, had he been here.. But 14 first I think you have to concede that you were put on (_,/ 15 notice in late January of ' 89 that the Applicants intended 16 to add four places to the Beverly station.
, 17 Your argument is, well, until you actually see it, I 18 it would be speculative and you didn't really have firm 19 assurance that that would be the case until the testimony 20 was filed, whenever it was filed, late in April. I don't
. 21 think there is any question that when the testimony was 22 filed that you reacted timely to it, if we select that as 23 the date.
24 So now the question we are struggling with is 25 should you have known in January, and should you have i f
\
Heritage Reporting Corporation (202) 628-4888 j l 1 _ _ _ _ _ _ _ _ __ ________ __ _ l
22290 1 prepared testimony following January without waiting for the 2 testimony, or should you have preoared your motion knowing 3 that the four new stations necessarily would exacerbate 4 whatever problems you saw before. That is what's before us, 5 and that is what we are going to go back and debate and come 6 up with a judgment on. 7 We are also moved, however, by the importance of . 1 8 the issue. If, as you now assert, that the monitoring 9 center can't do what it is designed to do because of this 10 prob 3 era, well, that's an 'mportant problem. I mean it's 11 more than just parking places, and it's more than just cars I i 12 moving around. That is an important allegation. I 13 And we also wondered, reading Rebuttal Testimony 14 17, if you might not have been able to use the parking and I 15 traffic congestion problem as a simp 3 rebuttal to that 16 testimony. That might have been one of your options. And , 17 we have ruled before that when an issue is introduced by the 18 Applicants, or reintroduced by the Applicants, an 19 appropriate rebuttal might be the same subject matter as an 20 earlier contention. 21 Well, that doesn't bar it as appropriate subject . 22 matter for rebuttal. We have done that in other contexts. 23 So are you prepared to argue why, if you believe 24 the case is so, why the notice in late January that there 25 would be four additional stations was not sufficient notice Heritage Reporting Corporation (202) 628-4888
22291 1 to tell you that necessarily there would be an exacerbated 9 2 parking problem and an exacerbated traffic problem? 3 MR. TRAFICONTE: Can I just consult? 4 JUDGE SMITH: Yes, if you are able to. I l
, 5 understand that the absolute commitment was that you would 6 not be required to --
7 MR. TRAFICONTE: No, no, it's not that. 8 First, there is an aspect of factual 9 representation that Mr. Fierce has put into his reply papers 10 concerning steps he took upon this notification in January 11 to inquire further from the Applicants. Those were actions 12 that he took, and I am aware of that. 13 JUDGE SMITH: That's very good. That's excellent. 14 MR. TRAFICONTE: And I'm just not going to augment 15 those with any -- I'm not going to say one way or the other. 16 He's represented what our office did, because he did it.
, 17 JUDGE SMITH: Well, that's a good point, and you 18 have argued it successfully, because you have just reminded 19 ~us right now the Board has got to go back, and in 20 consultation which we have not yet on that particular point,
~
21 look at those steps that he took and see if he was fairly 22 treated, and I think that that's very good. We will look at 23 that. 24 My memory now is that Ms. Selleck repeatedly told 25 him -- do you want to consult? O Reritage Reporting Corporation (202) 628-4888
22292 1 MR. TRAFICONTE: Could I just for 10 seconds? 2 JUDGE SMITH: Yes. 3 (Counsel confer.) 4 JUDGE SMITH: Let me bring your attention to page 5 9, which the Board hasn't addressed this collegially yet, of 6 the response. Mr. Fierce reports that soon after receiving
's the information and the Attorney General, knowing full well .
8 the obligation to use all due diligence, sought to explore 9 what this planning process memorandum meant. And then he 10 goes on with a chronology which would have us come to the 11 conclusion that the best he could do was to file the motion 12 after the filing of the rebuttal testimony. We will focus 13 on that. 14 MR. TRAFICONTE: That would be our response in 15 general to the point that at a certain point in January we 16 were on notice that the four additional trailers could cause
. 17 a choke point. That's how ve would respond to that point, 18 which is that we thought that may be. We inquired further 19 with the consequences that Mr. Fierce laid out, and decided, 20 quite frankly, it was in the planning phases, or even 21 somewhere less than the planning phases, and we weren't ,
22 going to move forward on it. Until the testimony was filed 23 it's quite clear they decided to do it, and we followed up 24 with the pleading. 25 Let me just comment, Your Honor, that I, having Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ _ _ _ l'
22293
,-~s 1- been in on the motion and the grounds for.it, I believe that I \s,- 2 this is exactly parallel to rebuttal. I agree with Your 3 Honor's comments that what we are really seeking here is a 4 form of rebutting the testimony or surrebuttal in response .. 5 to the Applicants' testimony.
6 The problem we have is that we don't want to' face 7 the argument that it's outside the scope of=the contention,
. 8 that the rebuttal is going to be or the surrebuttal would be 9 treated as outside the scope of the contention, and 10 therefore not relevant.
11 JUDGE SMITH: If we should find good cause for 12 late filing, traditionally then your burden under the other 13 four tests are reduced. And the one that we would look at
/' N 14 as being the most important would be other means to protect \ 15 the Attorney General's interest. And this is the one that 16 annoyed the Board, because the answer offered by the
. 17 Applicants was Exhibit G, the Agnes and Barry testimony in 18 which it is suggested that if the governor's principal 19 nuclear affairs aide would just stop, no longer stop 20 sacrificing the public welfare for the sake of litigation 21 strategy, an unfair inference from that memo. 22 Almost as a sanction against the Applicants, we 23 will reject that argument and find that there is no other 24 means to protect the interest, although we will not exclude i 25 that subject matter as a relevant evidentiary aspect of it
) Heritage Reporting Corporation
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22294 1 if it goes to litigation. 2 The other three factors we find generally in favor 3 of the Attorney General, thac he will participate, that his 4 participation will contribute to a sound record. And that 5 with respect to how much it will broaden the proceeding, it . 6 just doesn't weigh against good cause for a late filing, if
~
7 we find it. 8 So we will go back and reread the points about 9 when the information was available, was Mr. Fierce put off 10 by Ms. Selleck, and announce our decision probably right 11 after the noon break unless there is anything further you 12 want to be heard on. 13 MR. TROUT: Yes, Your Honor, there is. 14 First of all, I want to just state for the record 15 that I know from having been present during a conversation 16 between Ms. Selleck and Mr. Fierce that there is some , 17 disagreement between Ms. Selleck and Mr. Fierce as to those 18 telephone calls as to which Mr. Fierce states so 19 categorically what did and did not occur. 20 I think more importantly, Your Mcnor, the question 21 has to be what sort of written notice the Attorney General 22 received. And I would draw the Board's attention to the 23 document which was attached by the Attorney General to their 24 reply to our response. 25 JUDGE SMITH: That's the planning session of -- Heritage Reporting Corporation i (202) 628-4888 ____ _ - - - - - - - - - a
i l 22295 1 MR. TROUT: The Bovino memo. 2 JUDGE SMITH: Yes, I read that. 3 MR. TROUT: And if you look at the Attachment -- 4 now, Mr. Fierce tells us in their response that they were
. 5 particularly concerned about the bullet items at the bottom 6 of page 4 of the memo.
7 Well, the first bullet item is Attachment 1,
, 8 which, of course, was attached to the memo itself and was 9 produced along with the memo. And that not only goes 4
10 through in great detail the calculat' ion, the methodology for 11 calculating how many people and how many monitors you need 12 to service those people, it gives the actual numbers, Your 13 Honor. 14 The second page of the attachment says exactly how 15 many people are going to be at the North Andover and Beverly 16 reception centers, and it breaks it down by in-vehicle and
, 17 out-of-vehicle load.
18 And that's a document that was hand delivered to 19 the AG on the 31st of January. 20 JUDGE SMITH: That was in response to the request 21 for the documents referred to in the notice. 22 MR. TROUT: That's correct, Your Honor. 23 JUDGE SMITH: All right. We will read that too. 24 MR. TROUT: And I would add just one more point, 25 Your Honor. Heritage Reporting Corporation (202) 628-4888
22296 1 If there is still any question as to whether the l 2 AG understood that document, the Bovino memo that was turned 3 over January 31, I would point the Board to the testimony of i' 4 Colin High. 5 JUDGE SMITH: I read that. .- 6 MR. TROUT: Okay. Which uses these calculations
~
7 and these specific numbers. 8 JUDGE SMITH: Going back to the physical quality 9 of the pleadings, might I suggest how this could have been 10 handled, how you could have handled this? l 11 In the first place, you could have bound it all 12 together. And then maybe not from the service list, but i 13 understanding, number one, you've got a chairman who just 14 doesn't know how to handle papers. I lose them. I have ; 15 lost this paper already during this debate. You might even 16 put tabs in, not for the service list but just for the
, 17 Board, because we have a special problem. And that is, our 18 time is squeezed and you want us, I know, to read your 19 papers as efficiently as possible. And it would be a 20 special accommodation, but I know very well that you 21 wouldn't go to court with any doubts in your mind about the 22 physical quality of your paper. You want to capture the j 23 good mood of His Honor over there. And so it might be 24 helpful to us. It certainly would be appreciated.
25 All right, we will revisit this after the lunch l Heritage Reporting Corporation (202) 628-4888
22297.
,. , 1- break.
f ' I 2 - Anything further before we resume?
-.( ,
3 MR. TRAFICONTE: Yes, Your Honor. I-just.want to 4 . distribute a motion that I had faxed.to.the Appeal' Board 5 this morning pursuant to.our discussions of yesterday. I 1.~ 6 would just like to give everyone a copy of it. l
,. 7 (Document proffered to all parties.)
< 8 9
10' I 11 12 13. 14
'/
\ 15 16
,.., 17 y 18
'19 20
. 21 22 23 24 25 Heritage Reporting Corporation O (202) 628-4888
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22298 1 JUDGE McCOLLOM: I would like to address the l 2 concept of the tabs, particularly on attachments. I think I 9I 3 spent half my time finding the beginning of an attachment. 4 And that, of course, was not the case in here where you 5 stapled-each attachment together. But that is a typical . 6 kind of thing that I have run into. 7 MR. TROUT: Yes, Your Honor. 8 JUDGE SMITH: Now, we're also aware that the 9 global numbering system which you have adopted is helpful 10 along that line, but even so it is still a lot of papers to 11 thumb through. 12 MR. BROCK: Your Honor, just one other point on 13 the Sikich-Paolillo testimony, just so the record is clear. 14 As I understand the Board's ruling, to the extent that the 15 testimony was covered by Applicants' motion, that testimony 16 is rejected. And to the extent that there was testimony , 17 beyond the scope of Applicants' motion that testimony is l 18 withdrawn including attachments. And we will be providing a 19 conformed copy reflecting the Board's order and formally 20 offer that and have it rejected and put it in the rejected
~
21 exhibit file. 22 JUDGE SMITH: I don't know how you're going to 23 handle the distinction between what you're - you're going 24 to indicate what was withdrawn and what was rejected. 25 MR. BROCK: Correct, Your Honor. Heritage Reporting Corporation (202) 628-4888 __ ~
DONOVAN - CROSS 22299
;kx- 1 . JUDGE SMITH: In a conformed copy.
" - 2 MR. BROCK: Correct,-Your Honor. 3 JUDGE SMITH: I assume there is nothing that 4 requires us to look at this motion?
.L 5~ MR. TRAFICONTE: There is not, Your Honor.
6 I just have an inquiry. On my table when I walked. l~ 7 in --:I did come in late -- there is an' order unsigned. 8 MR. DIGNAN: That's the draft order for you to 9 look at. 10 MR. TRAFICONTE: I'm sorry. This has nothing to 11 do with the one that was expunged. 12 MR. DIGNAN: It's the draft order that was 13 presented to His Honor for signature or if he wants some f M"N 14 corrections made. 15 Whereupon, 16 RICHARD W. DONOVAN
, 17 having been previously duly sworn, resumed the witness stand 18 herein, and was examined and further testified as follows:
19 CROSS-EXAMINATION (Continued) 20 BY HR. TRAFICONTE: 21 Q. Good morning, Mr. Donovan. 22 A (Donovan) Good morning. 23 MR. TRAFICONTE: Your Honors, I'm prepared to 24 respond to FEMA's filing of the affidavit of Vernon Adler in 25 response to the matters raised by the Barry report. ! I
- i n Heritage Reporting Corporation (J)
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k l DONOVAN - CROSS 22300 1 First of all, is this offered and can we have it 2 marked as an exhibit and admitted into evidence? 3 MR. FLYNN: It was not my intention to offer it, 4 but I don't object if it is offered, if you want to do that. 5 MR. TRAFICONTE: I would like to have the . 6 affidavit and the attachments marked as the next Mass AG 7 Exhibit and offered into evidence at this time. 8 MR. DIGNAN: For what purpose? 9 MR. TRAFICONTE: Well I take it, it is, in fact, 10 the official document retention and control policy of FEMA. 11 MR. FLYNN: That is correct. 12 As of September 19, 1988. 13 MR. TRAFICONTE: The next exhibit is Mass AG 99. 14 (The document , referred 15 to was marked for 16 identification as
, 17 Mass AG Exhibit 99. )
18 BY MR. TRAFICONTE: 19 Q I would like to return to the matter of document 20 retention with just a couple of follow-up questions and I 21 think then we can pass on. 22 Mr. Donovan, you are familiar with the emergency , 23 exercise evaluation program that's offered by FEMA at the 24 Emergency Management Institute, are you not? 25 A (Donovan) Are you referring to the course that,is Heritage Reporting Corporation (202) 626-4888 ] l 1 I I L_____ - - - - -
Z DONOVAN - CROSS 22301 11 jA g 1 taught for evaluators? 8 i l' Yes, I am.
.k'~ 2 Q l- . !
3' You're familiar with that course, are you not? J l 4 A (Donovan) I'm familiar with the course material.
, 5 Q You're familiar with the course materials?
6 A (Donovan) Right.
' ~
7 At least as it existed at one point in time. i n 8 Q Are you familiar with the course materials that 9 FEbCL produced to the Mass AG in response to' discovery in 10 this case? 11 A (Donovan) No, I'm not. 12 Q The evaluators that were used during the June 1988 13 exercise, some of those evaluators had attended that course, f' 14. had they not? ( 15- A (Donovan) That's correct. 16 Q Many of them had attended that course, isn't that
.- 17. correct?
18 A (Donovan) I don't know the numbers. 19 It's my knowledge and memory, we ran two courses 20- both in the month of April. One was held at Emmitsburg, 21 Maryland where the Emergency Management Institute is 22 located; and one was held in Chicago, Illinois for the staff 23 at the Argonne Laboratory. 24 Q And you held these two programs in April for the 25 purpose of training a stable of evaluators for handling your l I Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22302 1 obligations with regard to the Shoreham and Seabrook 2 exercises in 1988; correct? 3 A (Donovan) That's not correct. 4 The course has been offered, I believe, since 5 1987. And it's offered two or three times a year. For , 6 example, it was taught last week at Emmitsburg, Maryland.
~
7 And because of the fact that we anticipated a 1
, 8 large request of our contractors to support our exercise {
9 evaluation effort, to my knowledge, the only special course - I 1 10 that was offered was the course that was taught at Argonne. 11 The other course that was taught in April had been j 12 scheduled -- we came out with our class schedule the l 13 preceeding August. So that course was offered. Once we 1 I 14 announce the class schedule for a curriculum year, we begin 15 accepting registration forms and those registration forms 16 can come from all over the country. 17 So it's conceivable that the large percentage of 18 the students who signed up for that April class may have 19 signed up for other reasons other than to be an evaluator at 20 the two exercise in June that you just referenced. 21 Q Well, it's a fact, is it not, that many of the 22 FEMA evaluators for the Seabrook '88 exercise had gone 23 through this course at one time or another; correct? 24 A (Donovan) A number of them have, yes. 25 Q A number of them. Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ n
DONOVAN - CROSS 22303 4
, ~s . l' A (Donovan) I don't know whether it's many or not. i Ns- 2~ Q Well,4 youusedtrainedandexperiencedevaluatobs, 3 did you not?
4 A (Donovan) That's correct.
.. 5 Q Part of the function of this course is to 6 introduce to the evaluator his role; correct?
7 A (Donovan) This course is designed for people who
, 8 theoretically have never evaluated an exercise. So the 9 course instruction is to bring a student into the realm -- I 10 should qualify, who are students?
11 We have federal employees attend the course. We 12 have contractors who attend the course. And we have state 13 and local government people who can attend the course. We
/N. 14 let state and local government staff to attend the. course
( x
' ')' 15 for two reasons: some of them are involved in radiological 16 emergency preparedness planning, and in that regard they , 17 come to the course to look at the subject areas that we 18 would be looking at from FEMA's perspective of evaluation.
19 Another effort is that FEMA funds and encourages 20 states to develop preparedness for a spectrum of 21 emergencies. As part of that program we fund an exercise 22 officer, 100 percent funding, and we give him monies to 23 conduct exercises with local governments in each state., 24 This is one of the few courses that we teach. It 25 has to do with anything with the process of exercise ( Heritage Reporting Corporation N (202) 628-4888 _ _ _ _ _ _ _ . _ _ . _ _ _ _ . _ _ _ . _ . _ . _ _ _ _ _ _ ^
DONOVAN - CROSS 22304 1 evaluation. We teach a course two to three times a year. 2 So we have students who attend this course who 3 have other purposes other than just to be part of a REP 4 exercise process. 5 Q Mr. Donovan, I just want to comment. I am truly
. i 6 going to try to finish your cross-examination today, and I 7 appreciate that you're trying to be forthcoming and -
8 responsive. If for today we could focus on the question a 9 little bit more narrowly, and we could move things along. 10 Part of the focus of this course is to introduce 11 an individual or otherwise train an individual as to his 12 role as a FEMA evaluator; correct? 13 A (Donovan) That's correct. 14 Q And there are handout materials given to 'he 15 individuals who attend this course on what the nature of the 16 FEMA evaluator role is; correct?
, 17 A (Donovan) I believe so. I don't --
18 Q Would you be more comfortable if I brought this 19 evaluation manual that was. produced in discovery, to our 20 office, to you so that you could review it in answering j 21 these questions? - 22 A (Donovan) Well, if you could give me some 23 illustrative examples you wouldn't have to bring it over. 24 The reason I'm hesitating is, I haven't seen the 25 plan of instructions since '87. I haven't seen the course l Heritage Reporting Corporation (202) 628-4888
)
I l l l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ._ _fl I
I DONOVAN - CROSS 22305 1 material since '87. So you're asking me questions about a
/ i (x_- ) 2 course that was taught in '88. !
i 3 I know the process is, after each course they 4 conduct a critique and evaluate their handouts and the 5 materials. And also, they evaluate the plan of instruction ! S 6 and then they constantly change their approach.
,. 7 Sometimes it's minor changes; sometimes it's major 8 changes. !
9 Q But generally, one of the purposes is to introduce 10 an individual to the evaluator role? 11 A (Donovan) That's correct. 12 Yes. 13 Q And as part of that introduction there is some
,_ 14 instruction offered as to how the individual is to treat the t i
(_/ 15 documents that he or she would generate during an exercise; 16 correct? , 17 A (Donovan) I believe so. 18 Q And there is some description in the materials 19 offered to this individual as to what the purpose of the 20 documentation produced by the evaluators at a FEMA exercise
. 21 is; correct?
22 A (Donovan) There should be. 23 Q There should be. 24 And, in fact, let me come over and show you this, 25 because I don't want to put you at a disadvantage, j '"} Heritage Reporting Corporation i O
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DONOVAN - CROSS 22306 > 1 (Document proffered to witness.) 2 BY MR. TRAFICONTE: 3 Q And a part of tr.e course of instruction with 4 regard to the documents produced by FEMA evaluators concerns 5 describing for these evaluators the uses to which this l 6 documentation is put; correct? 7 A (Donovan) Well, the page you just showed me said -
, 8 that the documents that the evaluators produce under the RAC '
9 Chairman's direction go into the production of an exercise 10 report. That's how I would interpret that page. 11 Q Yes. 12 And the page that I just showed you goes further, 13 does it not, and states that the documentation used -- let 14 me strike that. It states further, doesn't it, that the 15 documentation produced by evaluators during FEMA exercises 16 is, quote: "Used by FEMA and NRC witnesses to support 17 findings and determinations and licensing decisions in 18 Atomic Safety and Licensing Board hearings," correct? 19 A (Donovan) It says that, yes. 20 Q And this is the information that FEMA makes 21 available to individuals who are being trained as - 22 evaluators; correct? 23 A (Donovan) That's correct. 24 Q That the documents that they generate during the 25 exercise are going to be used to support the findings and Heritage Reporting Corporation (202) 628-4888 l 1 . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ R
DONOVAN CROSS 22307 1 determinations that FEMA makes; correct? <1 7%b 2- MR. FLYNN: Excuse me. 1
" %skl f 3 Are-you asking the witness to interpret what's on.
4- the page or what he knows? 5 MR. TRAFICONTE: I'm asking for his agreement that q" 6 the FEMA training course advises and instructs FEMA 7 evaluators in this regard. i . 8 MR. FLYNN: Well, the witness has said that he 9 hasn't seen that page before. 4 10 MR. TRAFICONTE: Yes. 11 He's familiar with the training program, however,, 12 and I've shown him this. 13 THE WITNESS: (Donovan) I've never taken the 14 course.. So to say I'm familiar with the training program,-I 15 believe my. statement was that I looked at the lesson plan l 16 and the materials that existed a couple of years ago.
, 17 BY MR. TRAFICONTE:
18 Q Now, last question in this line. 19 The individual evaluators with their various EEM 20 forms, as you have described it in your testimony, the 21 various individual evaluators submitted all of their i.' . 22 documentation to you, did they not? Or to someone who 23 ultimately submitted it to you; correct? 24 A (Donovan) The evaluators were instructed to work l 25 collegial and collaborative process to produce one set of Heritage Reporting Corporation I (202) 628-4888
)
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DONOVAN - CROSS 22308 1 forms for each objective that they had an assignment to, 2 Q I understand that. 3 But if an individual evaluator had taken the 4 sample forms and, in fact, filled them out, which I ; 5 understwnd some percentage of them did, he or she was . l 6 instructed to submit that material ultimately to you; 7 correct? 8 A (Donovan) They were instructed to submit it 9 through their team leader to me, yes. 10 Q And, in fact, didn't you have a policy that all of 11 the individual evaluators were to, before they left the 12 jurisdiction, so to speak, they were to submit all of their 13 documentary materials back to FEMA; correct? 14 A (Donovan) That's correct. 15 That's my policy at every exercise. 16 Q That's your policy. , 17 And the documentation we are talking about is the 18 same documentation that sometime on or about September 7th 19 you discarded; correct? 20 A (Donovan) No , it's two separate sets. 21 The team leader for his effort submits an 22 integrated team report which is supposed to have all the 23 documents supporting that team report. 24 The evaluator in turn is supposed to return his 25 evaluator packet, which in most cases contains unused paper, Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS -22309
/7'y 1- evaluator instructions, the' procedures, and other NN 2: information, training and guidance that was offered to him 3 as part of his training and orientation practice.
4- Q Well, you say it's two different sets.
-- 5 When an individual evaluator's packet was returned 6 to FEMA and it had handwritten notes on it that evidenced
,' ' 7 the work'of an individual evaluator, that material ended up..
, 8 in your possession and you discarded it; correct?
9 A (Donovan) I'm trying to say that the packets came *
~
10 back with no notes in'them. And the material that supported 11 their evaluation came in with the team report. There's two 12 . separate processes. We issue ID cards. We issue evaluator 13 packets. We try to recycle the binders, which the
/ 14 government pays money for. So I'm conscious in trying to.
\
15 recapture and recycle as much as we can. 16 So we attempt to reclaim all the paper.that we
, '17 produce for an exercise. So we got a checkout process where 18 -they return their packets. But their team report was turned 19 in separately.
20 Q And the individual evaluator's handwritten
~'
21 comments that might have appeared on certain forms, they 22 were attached to the team reports then, weren't they? 23 A (Donovan) That's correct. 24 Q And they found their way into your possession and 25 they are part of the documents you discarded?
\
Beritage. Reporting Corporation l (202) 628-4888
1 l DONOVAN - CROSS 22310 1 A (Donovan) That's correct. I' 2 Q Now, I would like to pick up the line that we were 3 at yesterday, Mr. Donovan. 4 I would like to direct your attention again to 5 your exercise report, Applicants Exhibit 43 (f) , and I'm - 6 going to as you a series of questions concerning the 7- standard you used. I'm going to ask you a series of
, 8 questions that reference Appendix B.
9 JUDGE SMITH: Reference what? 10 MR. TRAFICONTE: Appendix B of 43 (f) . 11 BY MR. TRAFICONTE: 12 Q I would like to direct your attention to page B-7, 13 Mr. Donovan, if you could. 14 Do you see the deficiency that is set forth there 15 on page B-77 Could you read that? 16 A (Donovan) It says: "No ERBS messages instructing 17 the transit-dependent or mobility impaired populations of 18 participating towns were ever simulated. These people could 19 have not called their local EOC to arrange for evacuation 20 transportation."
~
21 Q Now, can you explain why that is a deficiency and 22 not an ARCA? , 23 A (Donovan) No, I cannot. l 24 Q In your judgment, should that have been an ARCA? l
)
25 A (Donovan) I explained to you that this was an ! l l Heritage Reporting Corporation , (202) 628-4888 l 1 1'
DONOVAN - CROSS 22311 1 exercise conducted in '86. That the region followed the 8 ( ,) 2 evaluation process and policy of record of that day and 3 consulted with FEMA headquarters and consulted with the 4 state and they reached agreement on the classification of 5 the issues. And they reached agreement on the proposed 6 actions.
- 7 And I don't have any judgment in hindsight today 8 as to why this issue was classified a deficiency in '86.
9 Q Let me probe a little bit further. 10 You say that there was agreement with the state in 11 1986. Was there agreement with the State of New Hampshire 12 and the Applicants with regard to your judgments on the '88 13 exercise? p-, 14 A (Donovan) Again, we forwarded the draft exercise 15 report in its totality to all offsite response organization. 16 We offered the opportunity for them to present new facts or
, 17 different perspective on the existing facts, and to offer 18 their opinions as to whether our conclusions were correct or 19 incorrect.
20 And again, FEMA's evaluation process is based on a
. 21 cooperative process to maintain and improve preparedness.
22 And we obviously first deal with the agreement on the facts; 23 and we deal with the agreement on the issues; and then we 24 deal with the agreement on the corrective actions. 25 And in this regard I think there was agreement on
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i DONOVAN - CROSS 22313 l 1 the facts; there was agreement on the issues which includes 2 the classification of the issues; and there's agreement on I 3 corrective actions. 4 Q So agreement on the issues includes agreement on 5 the judgment as to whether it's a deficiency or an ARCA? 6 A (Donovan) Yes. 7 Q Now, I want to be precise with my question. . 8 I understand there was agreement, in this 9 instance. Was agreement the objective that you were . 10 pursuing? 11 A (Donovan) Again, -- 12 Q Do you understand the thrust of that question? 13 Trying to reach agreement with the State of New 14 Hampshire and the Applicants as to how to judge the 15 performance? 16 A (Donovan) No. . 17 I was trying to reach agreement. Again, all 18 parties agree as to what the facts were. And we agreed on 19 the issues. And we agreed en the recommendation for 20 corrective action. 21 Q Yes. Yes.. . 22 A (Donovan) And if they had offered a different 23 opinion on my judgment I would have listened to their 24 perspective. But I wasn't necessarily seeking their 25 agreements on my judgments as to whether an issue was an Heritage Reporting Corporation (202) 628-4888 ___ - . _ _ _ . R
DONOVAN - CROSS 22313 U 1 'ARCA'or an ARFI.
-2 - Q' Well, I misunderstood, perhaps, when you stated 3 the reason why this deficiency in '86 was a deficiency and 4 not an ARCA. It had to do with'the fact that FEMA consulted 5 with the State of New Hampshire and agreed with the Statefof 6 New Hampshire that it was a deficiency?
'7 A (Donovan) Well, maybe I misstated.
. 8 I said that FEMA -- the region consulted with FEMA 9 headquarters, which is our process for consultation on what 10 is a deficiency and what is not a deficiency. That document 11 we went over last week, EX-1, it has been out since 1985.
12 That is the. process for the agency to reach a position on 13 what is a deficiency and what is not a deficiency. 14 I assume the region consulted with the state on 15 the facts that are purported to be here, that you asked me 16 to read into the record. So therefore they got agreement on
. 17 the facts. And then if the state proposed a corrective 18 action, that the region and the agency agreed to as 19 appropriate to address this issue.
20 Q Again, my focus is simply and only on the judgment 21 that FEMA reached. 22 A (Donovan) You perhaps or I perhaps answered your
- 23 question in the wrong context, as what I understood your 24 question to be.
25 Q So your answer had to do more with agreement on l c Heritage Reporting Corporation I (202) 628-4888 a L__ _ _ _ _ _ _ _ _ _ _ _ _ . ' _ __ ___1._2.
DONOVAN - CROSS 22314 1 what the facts were, what happened. Agreement on what 2 actions would be taken to correct inadequacies. And 3 agreement on the fact that certain issues were identified as 4 issues? 5 A (Donovan) Yes. 6 Q It's not your testimony that FEMA and the response 7 organization collaboratively reached judgment on the quality
, 8 of the performance?
9 A (Donovan) That's not my testimony. 10 Q I mean, FEMA is not giving a test out to these 11 people and then sitting down with the people being tested 12 and say, what grade do you want? 13 A (Donovan) No, we do not. 14 Q Now, I would like to turn your attention to the 15 next page, B-8, and you will see there was another 16 deficiency found. And this one having to do with certain 17 messages that were generated at the state EOC. j 18 And if you want to just take a minute to review 19 it. It's not necessary to read it in the record, if you ) I 20 want to review what's set forth there under number five. l 21 (Witness reviewing document.) 22 1 23
- 24 25 j Heritage Reporting Corporation (202) 628-4888 1
( ;
DONOVAN - CROSS 22315 1 Q Now you understand that this is a description of
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; 2 some exercise event that occurred in '86 that FEMA judged to 3 be a deficiency, correct?
4 A (Donovan) That's correct. 5 Q Now having read it, do you believe that the e 6 actions or the performance described here merits a 7 deficiency rating?
, 8 A (Donovan) Again, I --
9 MR. DIGNAN: Objection. I thought we had been d 10 through at least two of these and the witness has indicated 11 it was done to a criteria, also done by another reviewer, 12 and that he did not have a hindsight judgment of these 13 matters. 14 MR. TRAFICONTE: I'm sorry, I missed the first 7-
) 15 part of what Mr. Dignan said. I did not hear the first part 16 of what he said.
, 17 MR. DIGNAN: I said I thought the testimony had 18 been pretty clear earlier by the witness that the '86 19 exercise was done to the criteria of those times by others, 20 and he had no hindsight judgment on these.
21 MR. DIGNAN: I mean he said this at least three or 22 four times that I have heard. And I respectfully suggest 23 that the line of inquiry is unproductive on that ground. 24 MR. FLYNN: I would like to add that the witness 25 has also said in his previous answers that the previous l l l e-'s Heritage Reporting Corporation l J (202) 628-4888 m l ___- l
DONOVAN - CROSS 22316 1 exercise was conducted with a different Extent of Play and a 2 different scenario. And without having that information 3 before him now, he could not offer an opinion as to whether 4 the rating was appropriate or not. 5 JUDGE SMITH: Well, the objection is not one of 6 relevancy. It's an objection that it's becoming needlessly 7 cumulative, is that the way you are phrasing it? , 8 MR. FLYNN: Yes, that would be my objection. I 9 haven't stated an objection, but I will, and that is the 10 basis for it. 11 MR. TRAFICONTE: I don't believe it's needlessly 12 cumulative for the following -- 13 MR. DIGNAN: I think the problem is really the 14 question is, in formal evidentiary terms, Your Honor, it's a 15 competence objection in the sense that the witness himself 16 has said, look, this was done oy others back in '86 and so
, 17 forth, and I have made no attempt to make hindsight 18 judgments on these. And so the witness has disqualified 19 himself --
20 JUDGE SMITH: He said that as to all of them or as 21 to the particular ones? , j 1 22 MR. DIGNAN: My understanding is he said it at l 23 least two or three times. Perhaps that question could be - j 24 profitably put to the witness as to whether there were some l 25 he felt he could make a judgment as to, and we could go l l Heritage Reporting Corporation (202) 628-4888 L ---- - - - fl
L. DONOVAN - CROSS 22317 [< 1 right to them. f'~N 2 But at this juncture, at least to my recollection,
.\- \, h-3 every-time he has been asked one of these questions his 4 answer has been the same. I could be in error. I don't 5 claim total recall of the transcript.
6 MR. TRAFICONTE: Your Honor, maybe there is some 7 confusion as to the purpose of the question.
, 8 I am not the least bit concerned about Mr.
9 Donovan's involvement back in '86, or his familiarity back 10 in '86 with the '8C exercise results. The purpose of the 11 cross-examination in this regard is that we have essentially 12 something here in the record to compare one FEMA review in 13 '86, with the more recent FEMA review that Mr. Donovan 14 performed. 15 We know that the'1988 judgments, as to whether an 16 inadequacy is a deficiency and ARCA, we know that that
, 17 judgment is for the most part Mr. Donovan's. We have in the 18 record, in fact in the same volume, we have a history of 19 FEMA's prior --
20 JUDGE SMITH: Yes, we have been following the gist 21 of the testimony. 22 MR. TRAFICONTE: Yes. 23 JUDGE SMITH: And that's not the' nature of the 24 objection. I 25 MR. TRAFICONTE: Well, the nature of the objection Heritage Reporting Corporation j r'"' (202) 628-4888 l 9 g
DONOVAN - CROSS 22318 1 seemn to be running to the competence of Mr. Donovan to put 2 himself back into the mind of the individual who formed this 3 judgment. 4 JUDGE SMITH: Having already stated several times 5 that he-can't do that, do you expect a different answer this - 6 time? 7 MR. FLYNN:
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Well, my objection is slightly 8 different. 9 MR. TRAFICONTE: Well, let me just -- 10 JUDGE SMITH: Let him finish. 11 MR. TRAFICONTE: Let me just reply to that point. 12 I am not asking him to go back into the mind of 13 the individual who formed this judgment. I'm asking him in 14 the present tense in light of what happened in the '86 15 exercise, if, for example, that had happened in the '88 16 exercise, how would you have judged that.
. 17 JUDGE SMITH: Well, what is different about this 18 question than the earlier questions of superficial 19 similarity, at least?
20 MR. TRAFICONTE: No, there is more than similarity 21 though. The grammar, I'm sure, was different. The purpose 22 of my question has been the same and would continue to be 23 the same as to these various -- 24 JUDGE SMITH: And how do you expect to get a 25 different answer this time? Heritage Reporting Corporation (202) 628-4888
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- _ _ - _ _ _ - _ _ l
F DONOVAN - CROSS 22319 1 MR. TRAFICONTE: The FEMA -- g .. ( 2 JUDGE' SMITH: He has disavowed the ability to 3 comment on the '86 findings each time.the matter has been. Now 4 put to'him. He's disavowed the'information needed. 5 that's the basis of the objection. 6 Go ahead, take time.
;. 7 MR. TRAFICONTE: No, I'm fine.
8- JUDGE SMITH: You are going to have to explain 9 something more thoroughly to the Board. How does this , 10 question differ than earlier questions except as to'the 11 particular deficiency or ARCA involved? 12 MR. TRAFICONTE: It does not, but it is the fact 13 that the particular inadequacy is changing and that I've
~s 14 chosen the ones that touch on matters that we're presently k,)
s 15 litigating vis-a-vis the '88 exercise, to explore the nature 16 of-Mr. Donovan's judgment.
, 17 JUDGE SMITH: That's what you have been doing all 18 along.
19 MR. TRAFICONTE: Yes. 20 JUDGE SMITH: What is diffelont this time?
. 21 MR. TRAFICONTE: The fact that I'm going to be 22 exploring the nature of his judgment in different areas of 23 performance.
24 JUDGE SMITH: Something is wrong with our 25 communication. I'm just going to see what his answer is to Heritage Reporting Corporation (202) 628-4888
=_ _ - - - _ _ . - - _ . . - _ _ - - J
i l l 1 DONOVAN - CROSS 22320 1 see if I understand what's going on. 2 MR. TRAFICONTE: So I can put the question again? l 3 JUDGE SMITH: Yes, put the question to him. This 4 is sort of a voir dire here just to see what's happening 5 here. I don't understana. I simply do not understand your . 6 argument. 7 MR. TRAFICONTE: Let me put some preliminary 8 questions to him. 9 MR. DIGNAN: No , let's put the question, the same 10 question. . i 11 MR. TRAFICONTE: Well, let me put my question. 12 MR. DIGNAN: So you are withdrawing your prior j 13 question? 14 MR. TRAFICONTE: Withdrawing it at this time, yes. 15 BY MR. TRAFICONTE: 16 Q Mr. Donovan, you were responsible, were you not,
, 17 for signing off on an Extents of Play agreements with the l 18 State of New Hampshire whereby the '88 exercise would test 19 those areas found to be deficient in the '86 exercise, 20 correct?
21 A (Donovan) The answer is "yes", but I wouldn't use 22 the word " deficient". Where there were exercise issues *
\
1 23 identified in the '86 exercise, we endeavored to see that 24 the opportunities would be given to the participants to 25 demonstrate the same functions in the '88 exercise. j Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22321 j,,. 1 Q As part of that activity and part of your
.I \
Tq ,) 2 responsibility, you were aware, were you not, of the nature i 3- of the State of New Hampshire's inadequacies during the ' 86 1 . l 4 exercise, correct? 5 A (Donovan) What'do you mean by "the nature"? 6 0 You were aware generally in what planning areas ! j' 7 and in what performance areas the State of New Hampshire had 8- performed poorly, correct? 9 A' (Donovan) I had this list of items that's in i 10 Appendix B. I accepted them as given facts. I did nothing 11 more than to draw up the fact that -- as I tried to 12 describe, one column -- it's what the region's exercise 13 report could'either be stated or summarized as. The second i 14 column is what the state had proposed and indicated that ps
) )
\~_/ - 15 they had done. And the third column was designed for our 16 evaluators to complete. I explored no farther than to j 1
, 17 accept them as facts.
18 Q You didn't read the FEMA ' 86 exercise report? 19 A (Donovan) No, I didn't. 20 Q All right.
- 21 You are aware, are you not, by reading this list i
22 of deficiencies or inadequacies, you're aware, are you not, 23 of the areas where the state performed poorly, correct?
.24 A (Donovan) That's correct.
'l 25 Q And, in addition, you were aware by reading this j 1
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DONOVAN - CROSS 22322 l l 1 list of the specific actions or the specific events that ! 2 occurred in the '86 exercise that FEMA judged to be 3 inadequacies, correct? , 4 A (Donovan) No, because I don't believe this list 5 represents actions. It represents issues. And the issues 6 are contained in the column that's on the left-hand side of l 7 the page. And like I said, the list was presented. The , j l 8 exercise report was presented. The state responded. Our 9 process calls for us to verify that the corrective actions, 10 as committed to by the exercise participant, have in fact 11 been completed. And we don't look beyond the fact that, in j 4 12 this aspect of our evaluation, other than that. l 13 We designed the Extent of Play and we designed the 14 scenario to give them opportunities to demonstrate the same 15 actions, but I did not go into the set of conditions and the 16 particulars as to why an issue was identified in '86. . 17 Q So you are unable to form any judgment as you sit 18 here today upon reading, for example, on page B-8. Upon 19 reading what occurred in the' 86 exercise, you are unable to 20 form any judgment as to whether that should be considered a , 21 deficiency or an ARCA'? , 22 A (Donovan) That's correct, because I don't have 23 the scenario. I don't have the plan as it existed at that - 24 time. I don't have any records of what was demonstrated or 25 not demonstrated that resulted in this issue being written Heritage Reporting Corporation (202) 628-4888
DONOVAN'- CROSS 22323 ,/ 1 up. L' We normally create an open file following an 2 3 exercise report. Our open file becomes our status of 4 corrective actions. And I believe the Applicant entered an 5 exhibit, The Status of Corrective Actions, following the '88 6 exercise. The region's responsibility is to monitor.that 7 file until that file is closed out.
, 8 So if it has a lot of items like the '86 exercise
'9 has, our attention is focused just on the items. And my job 10 as the exercise director from FEMA's perspective for '88 was I 11- to. ensure that all applicable items that could be
- 12. demonstrated'in the '88 exercise were given an opportunity
~
13 to be demonstrated, and we recorded whether the items were 14 successfully completed or not completed. 15 'Q Mr. Donovan, let me pursue this through a 16 different route. Let me direct your attention to page 152 17 of your report. 18 Pages 152 through 154 set out, do.they not, 19 Objective No. 6, FEMA evaluation and the narrative summary 20 for that objective, correct? And all of this has to do 21 with the State of New Hampshire, correct?
. 22 A (Donovan) What page again?
23 Q 152, 153 and 154. 24 A (Donovan) Just Objective 6. 25 Q Objective No. 6. That's the only part of it I'm D Beritage Reporting Corporation (202) 628-4888
i DONOVAN - CROSS 22324 ) ! 1 trying to focus on. 2 A (Donovan) Objective No. 6. 3 Okay, yes. 4 Q Now Objective No. 6 requires that the response 5 organization demonstrate the ability to continuously monitor 6 and control emergency worker exposure, correct? l 7 A (Donova.) That's correct. - 8 Q As to the public interest or the public safety, 9 you have already made it clear, have you not, that the i 10 emergency workers are part of the public, right? 11 A (Donovan) That's correct. 12 Q And FEMA is concerned that emergency workers know 13 how to protect themselves from radiation, correct? 14 A (Donovan) That's correct. I 15 Q And you would find an inadequacy as to this 16 objective if during the exercise emergency workers did not
. 17 demonstrate sufficiently that they do know how to protect 18 themselves from radiation, correct?
19 A (Donovan) Not necessarily. 20 Q Now can you explain your answer to that question? 21 A (Donovan) Yes. I mean the objective goes to a - 22 system and the system encompasses the individual and the 23 system around the individual to monitor emergency worker 24 dose. And we had significant scenario messages targeted to 25 address the system's ability to monitor the dose as well as Heritage Reporting Corporation (202) 628-4888 ;
2 DONOVAN - CROSS 22325 1 the individuals' ability to monitor their dose. 2 So -- 3 Q So you -- I'm sorry. 4 A (Donovan) So to take your hypothetical that one 5 individual would create a deficiency, I' m saying that's not 6 correct. 7 Q Fine. 8 A (Donovan) If you look at the whole system. 9 Q Let's use one individual as at one end of a 10 spectrum. Everything was hunky-dory with regard to 11 Objective No. 6 except one individual indicated by his 12 actions that he did not know how to protect himself from 13 radiation, okay? Just as a hypothetical. 14 JUDGE SMITH: All right, let's make sure that that 15 individual also was called upon to demonstrate that he did 16 know.
, 17 MR. TRAFICONTE: Within the Extent of Play.
18 JUDGE SMITH: Within the Extent of Play. 19 MR. TRAFICONTE: Within the scenario he would have 20 been called upon to demonstrate and he failed to so' 21 demonstrate. That's the hypothetical, Mr. Donovan.
. 22 BY MR. TRAFICONTE:
23 Q First of all, would FEMA have found that to be an 24 exercise inadequacy? 25 A (Donovan) One individual? Heritage Reporting Corporation (202) 628-4888
P l l DONOVAN - CROSS 22326 1 Q One individual. 2 A (Donovan) Depends. ' 3 Q What does it depend on? 4 A (Donovan) Well, if we looked at 10 or if we i l 5 looked at a thousand. I mean in this particular -- . 6 everything has to go in perspective. 7 Q Good. 8 A (Donovan) And what was the role of the individual 9 and where was he located and what part of the response 10 function was he a part of. 11 Q Well, let's go slow. Let's go slow. 12 Your first answer was it depends on how many 13 people you were sampling, right? 14 If you only tested two people and one of them 15 indicated he didn't know what he was doing in this regard, 16 that might be an inadequacy, correct? l
. 17 A (Donovan) It could -- well. '
18 Q It could be. 19 A (Donovan) It could be, yes. 20 Q Okay. As to who the person was and what the 21 function of that person was, what does that have to do with 22 the public safety interest that Objective 6 is designed to 23 secure? 24 A (Donovan) Well, again, it depends where the 25 person was located and what his, his aspect of the response. l Beritage Reporting Corporation (202) 628-4888
- DONOVAN - CROSS 22327
- [~'
1 Q But, Mr. Donovan, the hypothetical puts to you the
.t
>- '2 point that the individual being described was called upon to 3 demonstrate this knowledge. Accept that as the 4 hypothetical.
5 A' (Donovan) Okay. 6 Q He was called upon to-demonstrate this knowledge, 7 and he failed to do so. He is a member of the public,
, 8 correct?
9 A (Donovan) Yes. 10 Q And his failure to demonstrate that he knows how-11 to protect himself.does run to public safety, therefore, 12 does it not? 13 'A (Donovan) Yes, it does.
\ 14 Q All right, now, assuming that you are going to
['% Y 15 find an inadequacy in that regard, my hypothetical again, 16 how are you going to form the judgment as to whether that's 17 an ARCA or a deficiency, precluding the reasonable assurance 18 . finding? 19 A (Donovan) Let's not mix the two, okay? 20 Q What did I say? Inadequacy? 21 A (Donovan) No, the exercise report does not unto 22 itself make a reasonable assurance finding. 23 Q That's a given. We have covered that ground. I 24 understand. 25 A (Donovan) Well, that isn't what you said. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22328 1 Q It has the administrative or bureaucratic effect, 2 however, does it not? A finding of deficiency by the 3 region has the administrative effect of preventing 4 headquarters from making the reasonable assurance finding 5 for the most part. 6 A (Donovan) For the most part. Okay. 7 Back to your hypothetical. ,
, 8 Q Back to the hypothetical.
9 A (Donovan) There is two ways that I would look at 10 his demonstrated nonknowledge in determining how to classify 1 11 the issue. l l 12 One was, was his nonknowledge, did his l l 13 nonknowledge result in overexposure to the individual or 14 overexposure to groups of individuals if he happened to be 15 accountable for many. And did the system recognize his 16 nonknowledge or did the system not. , 17 And again, it all gets into this objective covers 18 more than just the individual. And the State of New 19 Hampshire has an extensive system to monitor real 20 radiological releases. They use field teams and in 21 cooperation with the NHY ORO and in cooperation with the ERO j i 22 onsite organization to monitor the physical location of a I 23 plume. - 24 So in that regard the state, in their accident I l 25 assessment function, as performed at the EOF determines, Heritage Reporting Corporation (202) 628-4888 __ ll)
DONOVAN - CROSS 22329 number one, do we have conditions to create exposure. And 9 1 2 in doing so, where are these conditions at. I
]
3 Do you follow me? 4 Q I do. And before you -- 5 A (Donovan) Well, I'm trying to answer your 6 question. 7 Q Yes. But remember the hypothetical. 8 A (Donovan) Well, I'm trying to answer your 9 question. 10 In that hypothetical, where was that individual in 11 relation to the real plume in the real exposures? And where 12 was the system's cognizance and recognition that we have to 13 be concerned about exposures and notice to the individual? 14 So, again, you have to put it all into perspective 15 before I would come to a judgment. 16 Q I'm trying to break it a little bit down so that I , 17 can have an understanding of how you are putting it into 18 perspective. That's the purpose of this aspect of my cross-19 examination. 20 Let's come back to the point you made about the 21 location of the individual. The hypothetical I'm putting to 22 you is that the individual was to demonstrate during the 23 exercise his knowledge with regard to radiological 24 protection. That was what he was supposed to demonstrate 25 and he didn't. That's the hypothetical. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22330 [ l A (Donovan) Well, okay, let's go back to the 2 hypothetical. 3 How was he asked to demonstrate it? 4 Normally we do this in an interview process. We
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5 come up to an individual and the first thing we ask him is l
. l 6 does he have a pocket dosimeter, does he have KI, and has he !
7 received instructions. 8 So we look to begin with, since our policy says 9 that he has two of these, does he have two of these, or does 10 he have one of these. 11- (Witness displays two pocket dosimeters.) 12 Q What are they? 13 A (Donovan) These are pocket dosimeters, self-14 reading dosimeters. 15 And again just go, first of all, back to the plan. 16 What does the plan say an employee is dispatched with. The 17 employee normally is dispatched with pocket dosimeters, 18 permanent dosimetry recording device usually referred to as 19 a TLD, and that he's been instructed, when he has been given 20 this equipment, does he know what to do. 21 So in most cases the basis for our judgment is an 22 interview. - 23 Now we also create conditions in the exercise 24 where actual individuals usually are given -- we come, "Will 25 you read your dosimeter for me?" We'll give them a Heritage Reporting Corporation (202) 628-4888 u___.______-___________.__
DONOVAN - CROSS 22331 1 dosimeter which will have a reading put on it that would [~'/h'
\m, have been different than the reading he has.
I 2 And we look in 3 those cases to see if those individuals take action based on s 4 what they see their reading to be.
~
5 So back to your hypothetical. It would be, you
'6 know, what was the individual -- if the individual said, 7 well, I don't really understand what this thing does, but
.., (8 does the individual understand what he is supposed to do if
~
9 it moves. In most cases, they said, well, I know what I'm 10 supposed to do if it moves. I'm going to call someone and 11 tell them it moves. i 12 So whether he knew the theory behind how a 13 dosimetry device works, again what answers did we get. If n (b 1 14 15 he said, I don't understand how it works, or I don't understand the purpose, but I have it and I know I'm 16 supposed to look at it --
, 17 Q Well, as to the question of what answers did you 18 get, I take it that these were interviews that you took, and 19 there were documents created as a result of these 20 ~ interviews?
21 A (Donovan)- We interviewed --
. 22 Q Those documents were discarded, were they not?
23 A (Donovan) That's correct. j i 24 Q So we don't really know what answers you got ! 25 because we don't have access to the documents. f I Heritage Reporting Corporation (202) 628-4888 1 _~
DONOVAN - CROSS 22332 1 A (Donovan) The exercise report says what answers 2 we got. 3 Q Oh, it does? 4 Where does it say what answers you got? 5 A- (Donovan) In the second paragraph on page 152, it - 6 says, " FEMA interviewed all emergency workers assigned to 7 field locations. Only one emergency worker (out of hundreds
, 8 of players) had not received any training, and only three 9 emergency workers were in the plume EPZ without dosimeters n
10 (two truck driver and newly employed road agents): e.g., the 11 Stratham TCP staff and the driver of the worker for the 12 traffic impediment." 13 And we go on to explain the conditions we found 14 for those three people. 15 "The emergency works at Stratham TCP (GST-01) did 16 not demonstrate the ability to monitor or control their , 17 exposure limits." 18 It's obvious that they didn't have dosimeters, 19 they didn't have the ability to individually demonstrate 20 their exposure. 21 "It should be noted that both workers stated, 22 after prompting, that they would radio for instructions if a ,; 23 change occurred during their 15 minute readings. It appears 24 to us that the wrecker was deployed by the Stratham EOC 25 directly rather than forwarding the towing request to Troop Heritage Reporting Corporation (202) 628-4888 9 ' I l
DONOVAN - CROSS 22333 1 Dispatch A which is specified in the plan. j 2 "Possibly, because of this departure from the 3 plan, the wrecker driver arrived at the location without 4 having stopped at the local staging area," which is where he 5 is supposed to go to pick up his dosimetry, "as prescribed 6 in the Traffic Management Manual) to be issued his personnel 7 monitoring dosimeters, film badges, KI, and be briefed on 8 emergency worker procedures. The wrecker driver stated he 9 had not been fully informed about any of these 10 requirements." 11 Q All right. So there is a record. 12 A (Donovan) Yes. 13 Q There is a record in this document of the results 14 of certain interviews. 9 15 MR. FLYNN: Could I ask for some clarification? 16 I've lost track of where we are. , 17 Are we still conducting voir dire as to the nature 18 of the judgment formed'in 1986? 19 MR. TRAFICONTE: No. 20 JUDGE SMITH: No. 21 MR. FLYNN: Do I take it then that that line has 22 been abandoned? 23 MR. TRAFICONTE: No. I'm getting at it . We're 24 going to come right back to it in about two minutes, two 25 more questions. O Heritage Reporting (202) 628-4888 Corporation _ __t
DONOVAN - CROSS 22334 I I 1 MR. FLYNN: Well, that's why I am confused. { 2 MR. DIGNAN: Me , too. 3 MR. TRAFICONTE: I said a few minutes ago I was 4 going to gat there through a different route, and I directed 5 his attention -- 6 MR. FLYNN: So this is still voir dire? 7 MR. TRAFICONTE: No , it is not voir dire. No. , 8 JUDGE SMITH: I introduced that term not in the 9 sense that the answer would not be evidence available for { i' 10 findings of fact, but I expected that the answer might 11 demonstrate the pattern that had been established. But that 12 doesn't seem to have done that. 13 MR. FLYNN: Very well. I just want it to be known 14 I haven't abandoned the objection. And when we get back to 15 it, we'll argue about it again. 16 JUDGE SMITH: All right. . 17 Would you pick out an appropriate time for mid-18 morning break? 19 MR. TRAFICONTE: Yes. In about three minutes, I i 20 think. 21 Can I just off the record ask? , 22 (Discussion off the record.) 23 MR. TRAFICONTE: Back on the record. - 24 BY MR. TRAFICONTE: 25 Q Let me direct your attention to page 154, Mr. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22335
- 7. 1 Donovan. FEMA identified an inadequacy in the performance
\
. ,/ 2 of New Hampshire personnel with regard to Objective 6, 3 correct?
4 A (Donovan) That's correct. 5 Q And the inadequacy was as set forth there under 6 Issue No. 1, that most bus drivers, ambulance drivers, town 7 personnel and a few local police did not frequently monitor 8 exposure, correct? 9 A (Donovan) That's correct. 10 Q Now you gathered that, or you discovered that 11 through a process of observation and interviews, I take it? 12 A (Donovan) That's correct. 13 Q And that led you to the determination that this j ex 14 was an inadequacy in performance, and you judged that to be ( ) V 15 an ARCA, correct? 16 A (Donovan) That's correct. 17 Q Now why isn't it a deficiency that this list of 18 emergency workers, although they were outfitted with their 19 dosimeters, and although they responded to your inquiries 20 with the statement that they had been trained or all but 21 three said, yes, we have been trained, but nonetheless they 22 didn't attend to their dosimetry equipment? 23 Why isn't that an indication that they were not 24 taking the steps appropriate and necessary to protect 25 themselves from harm? n
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DONOVAN - CROSS 22336 1 A (Donovan) Well, I would be happy to explain. I 2 say it in the preceding text, but I'll summarize it for the 3* benefit of being brief. 4 That the issue that we have defined here is the 5 fact that those drivers of vehicles did not look at their
. - l 6 dosimetry every 15 minutes as their instructions called for.
7 I failed to mention earlier when they are given , 8 this dosimetry, this KI and this TLD, they are given a sheet 9 which each person had on them except for the three that -- 10 the two of the three that we interviewed. And the sheet 11 tells them how to use those instruments and what to do if a ! 12 measurement moves to a certain distance and who to call. 13 The process that we acknowledged is those that 14 were assigned to vehicles were not reading their dosimetry 15 every 15 minutes. And we thought in many respects that was 16 probably a correct action, because their job was to drive a
, 17 vehicle and they are driving vehicles tc certain 18 destinations.
19 And we pointed out here, as we said on the second 20 recommendation on page 154, that really perhaps the best fix 21 is for the staging areas to instruct the drivers they should , 22 read their dosimetries at the end of their route. i 23 And so here is a case where the question that was
- l 24 asked by the evaluators was empirically short and not 25 succinct to the total evaluation.
Heritage Reporting Corporation (202) 628-4888 _ _ -- _ l
l
- DONOVAN - CROSS 22337
'~'N 1 Did they look at their dosimeters every 15 (b/ )
2 minutes? Well, we got lots of "no's". Well, why not? 3 Well, because they were driving vehicles. Well, it's not 4 logical for them to drive down the road and hold this thing
- 5 up to their eye and risk other complications.
6 Clearly, when the procedures give the dispatchers 7 at the staging areas, who will be the people who will be 8 handling this dosimetry out to the drivers, give them the 9 flexibility to say, either look at it every 15 minutes or 10 look at it when you arrive at your destination, your 11 subdestinations or not. 12 And in this case the fact that they did not look 13 at their dosimetry every 15 minutes did not preclude them 14 from demonstrating their ability to self-monitor their [~'}'
\~j 15 exposure or from the system's ability to monitor their 16 exposure collectively. , 17 Q But they did not indicate that the public safety 18 was put at risk?
19 A (Donovan) No. 20 Q What if the same individuals, Mr. Donovan, had 21 simply not had dosimeters? How would you have judged that? 22 The same individuals that you were identifying 23 here did not consult them. Let's just as a hypothetical 24 assume that they just simply did not have them. 25 How would you have judged that? P , I ('- / Heritage Reporting Corporation (202) 628-4888 u _ _ _ --_ __--
DONOVAN - CROSS 22338 1 A (Donovan) The plan says that emergency workers ) - 2 dispatch employed by the state in its many components of 3 response organizations in the plume EPZ should have 4 dosimeters. 5 Q Yes, I understand it does, and the hypothetical 6 was that the same individuals who you have identified here 7 didn't look at them, what would your analysis have been - 8 instead of not looking at them they simply had not had them, 9 although the plan required that they did? 10 How would you have judged that? Would that also 11 have been an ARCA or would that have been a deficiency? 12 A (Donovan) Probably would have been a deficiency. 13 Q That would have been a deficiency? 14 A (Donovan) Probably. I said it depends on the 15 numbers. If we looked at hundreds of workers, and if we had 16 hundreds of workers who didn't have dosimetry, yes, we )
, 17 probably would have considered it a deficiency.
18 MR. TRAFICONTE: This would be an appropriate time 19 to break. 20 JUDGE SMITH: Okay. The secretary to the Appeal 21 Panel, Barbara Thompkins, is on the phone now. She is going - 22 to read to Mr. Pierce the Appeal Board order which will 23 later be faxed down. But Mr. Pierce is going to write it l 24 down and report the gist of it to you right now. 25 We'll break until 11:00. Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ - _ _ _ - _ _ _ - _ _ _ _ _ - . _ _ - _ - _ _ _ _ _ _ _ _ _ . .R.
l DONOVAN - CROSS 22339 o ,~4 1 (Whereupon, a recess was taken.) ,e s
\,_) 2 MR. TRAFICONTE: Your Honor, just to go back and 3 clarify. We had offered Mass AG 99 which was the 4 declaration of Vernon Adler.
5 JUDGE SMITH: Well, you hadn't offered it; you 6- identified it. 7 MR. TRAFICONTE: I thought I had. I certainly had
, 8 marked it.
9 JUDGE SMITH: Well, maybe you did offer it. 10 MR. TRAFICONTE: If the record is unclear I would 11 like to offer it into evidence at this point. 12 JUDGE SMITH: Are.there objections? 13 MR. DIGNAN: No objection. f- '14 JUDGE SMITH: You have been following the process, ( 15 you' re going to save up all your objections and offer them 16 all at once. I have 95 through 98. I mean, your exhibits. 17 MR. TRAFICONTE: It is my habit to do that with my 18 proffers. That is a habit thing. I just thought I had t 19 offered that one. 20 JUDGE SMITH: All right. 21 But my score card here shows 95 through 98 as no 22 disposition; is that correct? 23 MR. TRAFICONTE: I'm going to clarify that. 24 (Pause) 25 MR. TRAFICONTE: Yes, I have not offered those. Heritage Reporting Corporation (_, (202) 628-4888 e
.-_._ 0
DONOVAN - CROSS 22340 1 JUDGE SMITH: Are there objections to Attorney 2 General Exhibit 99? 3 MR. DIGNAN: This is -- 4 MR. TRAFICONTE: The affidavit and the attached. 5 JUDGE SMITH: Vernon Adler affidavit. , 6 MR. DIGNAN: This is the one you -- 7 MR. TRAFICONTE: Yec. 8 MR. DIGNAN: I said no objection. 9 JUDGE SMITH: Received. 4 10 (The document referred 11 to previously marked for l 12 identification as 13 Mass AG 99, was received 14 in evidence.) 15 MR. BROCK: Your Honor, at this time, I have 16 conformed a copy of the Sikich-Paolillo testimony,
, 17 indicating portions withdrawn and other portions that we 18 would be offering together with Attachments 8, '9 and 10, 19 which Mr. Trout has reviewed.
20 And for the record we would formally offer it at l 21 this time and we understand it would be rejected based on 22 the Board's prior order. 23 JUDGE SMITH: Yes. Assuming the objections remain 24 and they do. l l 25 Do you want to give that an exhibit number? Heritage Reporting Corporation I (202) 628-4888 ; l -
- _ _ . _ ._ o
DONOVAN - CROSS 22341 1 MR. BROCK: Yes, Your Honor, that would be 2 helpful. 3 JUDGE SMITH: 100. 4 MR. BROCK: Thank you. 5 (The document referred 6 to was marked for 7 identification as 8 Mass AG 100, and was l 9 rejected.) 10 JUDGE SMITH: You will provide the copies to the 11 reporter. 12 MR. BROCK: Yes, Your Honor. 13 JUDGE SMITH: And to the Board. 14 BY MR. TRAFICONTE: 15 Q Mr. Donovan, I would like to direct your attention 16 to page 172 of your report. And I specifically would like , 17 to direct your attention to issue number one that is set 18 forth on that page that's entitled: " Training of drivers." 19 Do you see that? 20 A (Donovan) Yes, I do. 21 Q And to orient ourselves, this is an issue that
. 22 arose out of your review of exercise objective No. 18 for 23 the State of New Hampshire; correct?
24 A (Donovan) That's correct. 25 Q And that objective required that the state L'eritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22342 1 organization demonstrate the ability and resources necessary 2 to implement appropriate protective actions for the relevant 3 populations; correct? 4 A (Donovan) For subsets of the relevant population. 5 Q' For subsets of the relevant populations.
- 6 Now, apparently FEMA's observations and review 7 reveal that there were certain drivers who had difficulty 8 reading or following the maps; correct?
9 A (Donovan) That's correct. Or that they 10 demonstrated; yes. l 11 Q Now, again, I put the same question to you: that's 12 an ARCA and not a deficiency. Is the reason why it's not a 13 deficiency, does it have something to do with the number of 14 drivers who exhibited these difficulties? 15 A (Donovan) No. 16 Q It does not?
, 17 A (Donovan) No.
18 Q Does it have to do with the real world 19 consequences that can be deduced from a failure or an 20 inadequacy such as this? 21 A (Donovan) I don't understand that question. 22 Q Well, I'm trying to ask you a series of question . 23 similar to that one. 24 Have you gone through the process of 1.magining the 25 real world consequences in the event of an accident in light Heritage Reporting Corporation 1 (202) 628-4888
DONOVAN - CROSS- 22343 1 of the inadequacy and performance that you observed, and 7w 2 _( judged it, basically, to be no harm, no foul, and for that L. 3 reason given it an ARCA? 4 A- (Donovan) Not in that context, no. 5 We judged it in a different context, i
?
6 Q All right. I'll put the question to you again. 7 Can you explain why this issue is an ARCA and not
, 8 a deficiency?
9 A (Donovan) I will attempt to do so. 10 Again, objective 18 called for the offsite 11 response organization to do a number.of things. One of 12 those was to identify .ne need for transportation resources 13 and to provide transportation resources, if requested. I 14 When we broke, for purposes of the exercise, 19,) demonstration play into subsets we had risk nursing homes ( 15 16 and risk hospitals. I called those one subset, when I went
, 17 over this objective the other day. You were not here last 18 Friday, 19 And of the 18 scheduled demonstrations for this i
20 subset, 17 were successfully completed without any i 21 assistance; and one was completed with controller a i 22 intervention. 23 Of the 26 scheduled demonstrations from the state 24 staging area to the local staging areas of which there is i l 25 one in each of the communities and there was also
-p) v Heritage Reporting Corporation (202) 628-4888 l
l
- _ - _ _ _ - - ._ . lI
DONOVAN - CROSS 22344 1 demonstrations from the local staging areas out to the 2 reception centers, 22 were successfully completed; three 3 were completed with controller intervention; and one was not 4 completed. 5 I mentioned to the Judges and to the members here, . 6 that also under objective 19 we had these routes 7 demonstrated from the staging area to the local staging
, 8 areas and we had numerous successful completions there.
9 So the one subset of demonstrations where there 10 was some demonstrated difficulty in reading the maps or in 11 tre drivers following the maps dealt with the subset that 12 would provide transportation to transit-dependent 13 individuals. 14 Now, the 48 scheduled dem. rations for that 15 subset, 34 were successfully completed; 11 were completed 16 with controller intervention; and three were not completed.
, 17 Q Did you just read that from a page of your report?
18 A (Donovan) Well, it's the last page of the report, 19 only I broke the numbers into a different array of 20 statistics than 10 presented in that. 21 Q You're reading from page 172; correct? 22 A (Donovan) Correct. 23 Q At the top? 24 A (Donovan) Yes. 25 Q And you have broken down those numbers about the Heritage Reporting Corporation (202) 628-4888 i
DONOVAN - CROSS 22345- ./k's 1 ' success ~ rates into two' parts? D/ N 2 A (Donovan) Three parts. 3- .Q Three parts, I'm sorry. 4 A (Donovan) Well -- yes, three parts.
. 5 But:all those parts are represented in the routes 6 that start on page 166 and conclude on page'171. As I
[ -7 mentioned, you were not here so I will try to bring you up 8 to speed. 9 There were two other routes. If you add all these 10 up they come to 96. There are two other routes. There was 11 one route that was -- the evaluators gave credit for, and 12 that was to the Rockingham Nursing Home which is on.the-13 Rockingham complex that's known as the state staging area. [' T
-14 And then we had a homebound route in Seabrook,
- 15. which'is Route 71. And that was outside the constraints.
16 That was to provide. transportation resources to a special
, . 17 needs person at'home.
18 Now, in looking at the perspective, the only area 19 -- if you followed my verbal description, I would be happy 20 to draw it on butcher paper, if you like -- that we'saw 21 results that indicated difficulty was in the area of 22 transit-dependent routes. 23 And it's our position that the infrastructure that 24 would have been in place if all of the responders had been 25 mobilized to this exercise, and that the public was actually y ( Heritage Reporting Corporation (202) 628-4888 4 ___m___.-._.___
DONOVAN - CROSS 22346 1 being picked up by these buses and moving with these buses 2 along these routes, that the performance of the drivers l 3 would have been improved. Because, number one, they have a 4 network of public safety people manning access in t'raffic 5 control points. This network is superimposed on the road 4 6 network in these communities. And it is also superimposed 1 7 on these transit-dependent routes where almost every route
)
1 8 bisects several of these intersections, whether it be public I 9 safety people there. I 10 So: (a) if the driver had difficulty in following i 11 the map he would have a human network to give him assistant; j 12 (b) he would have the human network of the persons he picked I i 13 up. 14 Q That was a lengthy, but I believe responsive 15 answer. I want to go back and press on some points there. 16 I take it, then, you judge this training of l l 17 drivers ARCA on page 172, your response is in part that the 18 training difficulties or inadequacies that you observed had 19 to do with drivers in only one of the three categorier of 20 routes driven by these drivers; correct? I 21 A (Donovan) No, I'm not saying that. 22 You asked me two questions. You asked me why is . 23 this an ARCA and not a deficiency. 24 Q Yes. I 25 A (Donovan) And then you asked a separate question Heritage Reporting Corporation J (202) 628-4888
I l DONOVAN - CROSS 22347 l
-s 1 as, how did I reach the evaluation of objective 18.
~(,,, 2 Q And I took your answer to be that there were three
-3 categories of routes tested, and in two of the categories 4 there were not inadequacies disclosed. And in one category 5 'there gere inadequacies disclosed?
6 A (Donovan) Well, I wouldn't use those words. 7 I use "successfully. completed, completed with
, 8 controller intervention or not completed."
9 Q' Let's just be completely candid. 4 10 I'm inferring from that reply that the reason why 11 it's an ARCA and not a deficiency is that the failure to 12 complete occurred in only one of the three categories. 13 Am I off-base or is that what you intended? fg 14 A (Donovan) I intended to say there was other
%- 15 things going on. And we haven't even talked about one.
16 Objective 18, as I stated to say, deals with the 17 identification of needs. The local EOCs or the IFO, which 18 is located at the EOF go to the special needs data base and 19 perform calls to determine if these people preidentified 20 have needs. 21 Now, we had a large exercise play spelled out in 22 that. That is also evaluated by objective 18. And we had a 23 rate of calls of two per hour and then moving up to three 24 per hour for a period of four to six hours. And this is all 25 dialogued in objective 18 in terms of this scenario play / Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ - . __ _ n
DONOVAN - CROSS 22348 1 that's built in there. 2 So we had a large volume'of calls. We had mini-3 scenarios. We had these evacuation bed buses, two of them, 4 which were demonstrated. We had the local EOCs and the IFO 5 who were the recipients of these calls determining, based on
- 6 these calls, which people actually needed assistance in 7 providing routing instructions and need instructions to the o dispatch point at the IFO.
9 We nad a conscious demonstration of the state's 10 ability to recognize its needs and to deal with its resource 11 providers with regard to resources. 12 And all of those factors get put into the 13 objective analysis. 14 With respect to these drivers, what we tried to 15 say on page 172 -- which you brought my attention back to i 16 several times -- is many of them got to the dispatch point, 1
, 17 they took their map and they drove off.
18 In our second sentence: " Drivers need to study l 19 maps in advance of departure from LAS ratner than waiting 20 until underway." 21 We drove the routes ourselves. I sent people out 22 to drive the routes themselves of the same maps. And the . 23 people who stopped, looked at the map and then drove, in 24 most cases, had no problems. 25 Number one, we felt thn first issue should be the l Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS- 22349 1 driver should-look=at the map and get an idea where he is 77-
'l
)s_ -2 . going before he turns the key on and pulls off in that-3 location. And in that regard we also said that the drivers 4 need to know.the rationale for route selection.
, 5 And that was the area we felt had to be addressed 6 in training. Number one, take a look at the map before you
] 7' leave.. Don't wait until you are two miles'down the road and 8- then put the map in front of you to figure out'where your 9 first turn is.
4 10 And like I said, the area that we saw where this 11 lack of prereading, prefamiliarization of maps created the 12 demonstrated performance issues was in the issues of 13 transit-dependent bus routes. 14 Q Just a' quick point.
\
15 You mentioned the maps -- the next issue you 16 identify right below the one on training is, of course, that-
, 17 -the maps used lacked detail and accuracy; correct?
18 A (Donovan) Yes.
' 19 Q Now, the other part of your response a minute or 20 two ago had to do with, I take it, assumptions that FEMA 21 made that at the time of an emergency there would be a-human 22 response network out in the field that would aid these 23 drivers to their destination; correct?
24 A (Donovan) That's correct. 25 Q So the thinking process that you were engaged in { Heritage Reporting Corporation (202) 628-4888 l l l l' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ _ _ _ . _____ fL_
DONOVAN - CROSS 22350 1 was, well, it may be that we observed some drivers unable to 2 find this or that location. But in the real event they 3 would be aided by individuals, perhaps, who are on the bus; 4 other responders who they would pass on the way; correct? 5 A (Donovan) That's correct. , 6 Q Is that a fair inference from your testimony? 7 A (Donovan) That's a fair inference.
~
8 I would put it in different words, but it's fair. 9 MR. DIGNAN: Could I object to this line as 10 repetitive. This is precisely the line Mr. Backus went 11 down. I'm looking at 22,130 of the transcript of Friday in 12 which the witness explained this business that with respect 13 to these special needs buses the reason he didn't find the 14 deficiency was because of the fact that in the real ' 15 situation there would have been people around to assist him. 16 Mr. Backus went into this at length.
. 17 MR. TRAFICONTE: I wasn't here on Friday.
18 JUDGE SMITH: That's true. 19 MR. TRAFICONTE: If that's the case I can move off 20 the line. I just want to ask one follow-up question. And I 21 certainly apologize if Mr. Backus asked it, although I doubt
- 22 that he did.
23 BY MR. TRAFICONTE: 24 Q I understand your assessment of this inadequacy as 25 an ARCA. Can I direct your attention to page B-29. Heritage Reporting Corporation (202) 628-4888 _ _ _ - - - - - - - - - - - - - _ n
i DONOVAN - CROSS 22351- =j J - [~'\ 1- Now, B-29 contains the statement of deficiency G - 2 found by FEMA vis-a-vis the performance by'the State of New 3 Hampshire' personnel. And at the very top you will find the 4 location where the observations were made. I take it, it 5 was at the ctate staging area and at-the local EOCs. 6 And apparently, FEMA found'in 1986 that, quote: 7 " Bus drivers consistently experience problems in getting to
,- 8 where they would have been needed. They were unfamiliar 9 with alternate routes and experienced difficulties because 4
10 of the poor quality of-photocopied maps." 11 Now, in '86 that was judged to be a deficiency. 12 Did FEMA make the same kind of or did FEMA not make the 13 assumptions that you made in '88 that during a real world [) v 14 event there would be a human network to supplement the 15 knowledge and the training of the. bus driver? 16 MR. DIGNAN: I'm going to object.. , 17 MR. FLYNN: Objection. 18 MR. DIGNAN: The witness-has said, he hasn't gone 19 back to try to nindsight this. 20 JUDGE SMITH: I guess now, Mr. Traficonte, it's 21 your responsibility to show why those objections don't have
. 22 merit.
- 23. I understand every word you say in response to 24 that, but I can't put it all together.
25 Now try again. \ Heritage Reporting Corporation (202) 628-4888 ___-__-_____ A
DOMOVAN - CROSS 22352 1 MR. TRAFICONTE: The relevance of the line -- 2 JUDGE SMITH: Not relevance. 3 MR. TRAFICONTE: All right. 4 JUDGE SMITH: I'm not thinking about relevance. 5 , MR. TRAFICONTE: We're talking about competence. ,
' l 6 We're talking about his capacity -- I 7 JUDGE SMITH: That's Mr. Dignan's characterization -
i 8 of it and I think that's as good as any, right. He has 9 disavowed knowledge and competence to comment and testify. 10 MR. FLYNN: My objection is that it's 11 unnecessarily cumulative. We have been over this several 12 times already. 13 JUDGE SMITH: That's a good one, too. 14 MR. TRAFICONTE: Let me ask this question and 15 perhaps I can leave it. 16 JUDGE SMITH: That's what we were until
, 17 Mr. Flynn --
18 (Laughter) 19 MR. TRAFICONTE: Let me withdraw the question I ! 20 put to the witness and ask a different question. ; 21 BY MR. TRAFICONTE: - ' 22 Q Mr. Donovan, did FEMA apply a different standard
- b 23 to the performance by the State of N;w Hampshire in the '88 1
24 exercise than it did in the '86 exercise? l l 25 MR. FLYNN: Same objection. : 3 1 Heritage Reporting Corporation (202) 628-4888 9c ? l l nj
DONOVAN - CROSS 22353 1 MR. DIGNAN: That very question has been put, +: 2 I suppose he can answer it again. 3 MR. TRAFICONTE: Well, his counsel is objecting. 4 JUDGE SMITH: Let's have the answer.
. 5 MR. DIGNAN: Asked and answer is my ground.
6 JUDGE SMITH: Let's have the answer anyway.
~
7 Please answer. 8 THE WITNESS: (Donovan) I can only answer it in 9 the context of what the Extent of Play called for in '86. 10 In that regard 20 buses were to be deployed to the state 11 staging area. 12 JUDGE SMITH: Just a moment. , 13 I don' t know if you' re answering here. But in the 14 first place, do you have.any difficulty with the term 15 " standard?" 16 THE WITNESS: (Donovan) Yes.
. 17 Standards were different.
18 BY MR. TRAFICONTE: 19 Q I'm sorry. The standards were different. 20 A (Donovan) Well, I've said that in reflection of 21 how we had different objectives and we had different -- 22 JUDGE SMITH: For the reasons stated. 23 THE WITNESS: (Donovan) Yes, for the reasons 24 stated heretofore. 25 MR. TRAFICONTE: If I just might have a moment. I Heritage Reporting Corporation (202) 628-4888 l .- - __- _ - _ _ - - _ _ _ _ _ __ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ ____ _ ________ t
l DONOVAN - CROSS 22354 1 had a further set of questions concerning this appendix, and 2 then I have the very strong suspicion that I'm not going to 3 be able to pursue it that much further, if even one step l 4 further. And I just want to -- i 5 JUDGE SMITH: How many times do you want to ; 6 establish the point? Do you have an objective? A numerical 7 objective? , 8 MR. TRAFICONTE: I have none. 9 JUDGE SMITH: Then it can be stipulated. 10 MR. TRAFICONTE: I know it when I see it, Your 11 Honor. 12 (Laughter) 13 JUDGE SMITH: Would you like to take an early 14 break for lunch? Would that enable you to review your plan? 15 MR. TRAFICONTE: Yes, that would be fine. 16 JUDGE SMITH: We'll break until 1 o' clock.
, 17 I mean, it's your call. Do you want to finish 18 today? Do you want that extra time? )
19 MR. TRAFICONTE: That's fine. I will review this , 20 right during the break and see if we can pick up another 21 line. . 22 (Whereupon, at 11:45 p.m. the hearing was recessed 23 to reconvene at 1:00 p.m. this same day, Tuesday,
- 24 May 23, 1989.)
25 Heritage Reporting Corporation (202) 628-4888 1 lI
22355 1 AFTERNOON SESSION rh. j ) 2 (1:07 p.m.) 3 Whereupon, 4 RICHARD W. DONOVAN 5 having been previously duly sworn, was recalled as a witness
+.
6 herein and was examined and testified further'as follows: 7 JUDGE SMITH: On the record. 8 (Documents proffered to all parties.) 9 MR. DIGNAN: Your Honor, during the break I 10 indicated to the. Board that it might wish to withhold any j 1 11 decision with respect to'the motion on the late filed 12 contention that's pending before it, because it h'd a just 13 come to my attention the existence of a document which I 14 have now distributed to the Board and to-the parties, and I
) 15_ would like to explain its significance.
16 If one reads Mr. Fierce's response to the motion, 17 he refers on page 8 and 9 thereof to the so-called Bovino I 18 memo which you discussed with Mr. Trout this morning. You 19 will note in his discussion of the Bovino memo he says that
'20 he made a request of our office of the documents that were 21 listed therein as action items. And while I'm shorthanding 22 it, in summary was told that no such documents existed, 23 which I aseure you was my office's belief.
24 If you look at the Bovino memo, which is Exhibit A 25 to that response, and you come to the third page -- excuse Heritage Reporting Corporation f t (202) 628-4888 N
a 22356 1 me -- fourth page of that document, you will see there the 2 list of action itema. And the second item listed is 3 "G. Taibi: Calculate and document the required number of 4 vehicle monitoring parking for reception center staff and 5 registration requirements based on the new evacuees figures. l 6 Due 1-13-89." 7 On its . ce the document I have just distributed
, 8 would appear to be that document. It is dated January 19, .
9 1989. I have inquired as to why it wasn't produced before 10 this. Obviously, I think part of the problem is, as you 11 will notice, it's not in the usual form you have probably 12 seen the Seabrook documents. It apparently was produced on 13 a personal computer, nothing came of it and it didn't get 14 into the document stream. 15 In any event, there is no doubt it was not 16 produced in response to the request and the agreement we had
, 17 made to produce these items.
18 So the question before the house then becomes 19 whether that affects whatever ruling the Board might make. 20 ~But my personal view of it is while I deeply apologize to my 21 opponents for allowing something like this to happen, the 22 fact of the matter is the notice issue, in our judgment, . 23 comes right out of the Bovino memo. They are on notice as 3 24 of then, and they should have moved ahead. 25 The fact that this other memo was requested and Heritage Reporting Corporation (202) 628-4888
22357 1 not produced may be wrong for any number of reasons I can 2 think of, and probably other people in the room could think 3 of more reasons, but I'm not sure that it affects this 4 fundamental issue which is, did the Bovino memo by itself 5 give them the notice that they needed. 6 So that's my view of the thing. But nevertheless,
- 7 there is no question, as I understand it, that a request was 8 made of us of these actions items. After the date of this 9 document, we informed them that no such items existed. We ,
10 the lawyers, didn't know they existed and I don't think the 11 fault lay up at the site either. I think it was one of 12 those situations that happens every once in awhile in the 13 world when you have got a lot of documents flying around, 14 and it was not produced. 15 So to the extent that that affects your ruling, 16 those are the facts as I understand them.
, 17 JUDGE SMITH: During the lunch break we reviewed 18 certain aspects of the motion. We looked at the Bovino 19 memorandum which was attached to the Attorney General's 20 reply. We determined that if it had been very carefully
. 21 studied, and I want to say "very carefully" studied, one 22 could have discerned from there that there was going to be 23 added four monitoring stations.
24 I might say along that line, however, that what I 25 regard as my normal reading of it, given the amount of Heritage Reporting Corporation
, (202) 628-4888 C_
22358 1 papers we have to read, I could very well have come away 2 from that total memorandum with the feeling that the adding 3 of four additional monitoring stations at Beverly was still 4 under consideration. 5 But I think that if you look at an attachment to j i 6 the Bovino memorandum, you vill see that that option was 7 finalized. But it doesn't turn on that because we will give
- 8 Mr. Fierce the benefit of that doubt that somehow, with 9 conscientious study, he missed the point.
10 But then we went back to read what Mr. Fierce had 11 to say on page 9 about pursuing the matter. He says that 12 within two or three days after receiving the memorandum, on 13 or about February 3, 1989, he contacted Ms. Selleck and was 14 told -- well, there has been no follow up, and as of that 15 time the Bovino memo was all there was. 16 And then he concludes on page 10, "This sequence
. 17 of events left the Mass AG in substantial doubt about where 18 the Applicants planning process for monitoring decon was 19 heading. It appears to have suddenly ceased to have been 20 interrupted. No further information or documents on this 21 topic were provided by the Applicants in February, March or '
22 April, until the Applicants distributed Applicants' Rebuttal j 23 Testimony No. 17." 24 Now, we don't believe that that statement, in the 25 context of the whole discussion on page 8, 9 and 10 by Mr. Heritage Reporting Corporation (202) 628-4888 l _ _ _ _ _ _ _ _ . - _ _ __ :n
22359
/ 1 Fierce, is fully forthcoming. He would have us believe that'.
3' 2 he looked at the Bovino memorandum and regarded the 3 projected additional monitoring stations as still be in the 4- planning stage. And we think that all of that was put_to 5 rest ~at least by February 1st, which is the date of the 6 hand-delivered letter to Mr. Traficonte from Ropes & Gray 7 alluding to earlier discussions.
, 8 And at the bottom of page 2 and the top of page 3, 9 it is quite clear that the additional half-trailers as 10 referred to here has then -- the additional monitoring 11 stations have then become a final planning aspect and would 12 be implemented.
13 So we charge the Attorney Genera), as we t 14 originally stated, at the end of January they knew that ( 15 there would be four additional monitoring statements. The 16 question is was that enough to put them on notice that if 17 they are going to revive their parking limitation issue, now 18 is the time to do it. 19 Well, we can't think of any reason why not. If 20 they felt that there waa inadequate parking with the 21 previous number of monitoring stations, there certainly with l 1
, 22 four additional monitoring stations, with no expressed 23 provision for additional parking, that that is the date by 24 which we would measure the g.od cause for late filing.
25 For that reason, we don't believe that the new. . 1 Heritage Reporting Corporation l (202) 628-4888 _ - - - _ - - - _ - - - - - - - - - - _ - - - - - - - _ i
r 22360 i i contention meets the good cause for late filing test. But 2 that's not it. That's not the end of it. 3 The Board still have a concern about this issue. 4 It was raised in the sense of the exercise, and we inferred 5 generally from the discussion at the time the exercise 6 contentions were being discussed that it was an easily 7 correctable or readily correctable problem that does not -
, 8 require conceptual change of the plan.
9 We looked at the proposed new basis attached to 10 the motion, and we searched it to see if it alleges that the 11 parking places cannot be expanded and that we do have 12 perhaps a serious defect in the plan or maybe even a 13 fundamental flaw if we were going to revisit the exercise 14 standards. 4 15 We can't tell from there. It's not all that 16 clear. All they are saying is the way things stand right
, 17 now you don't have enough parking, and that we should take 18 it into account.
19 To cut the matter short, the Board is going to i 20 reject the motion to file the late filed contention. But we 21 are going to require additional evidence with respect to the . 22 filing of the Rebuttal Testimony No. 17. We want a 23 discussion of the parking problems. We are not requiring a 24 discussion alluded to in the motion along the line of what 25 Dr. Adler might testify to, and that is a special traffic Heritage Reporting Corporation (202) 628-4888 l
22361 1 management plan. We see no special basis for that, no 2 special reason for it. But we think enough concerns have 3 been raised that for the Board's satisfaction, before we can 4 fully accept Rebuttal Testimony No. 17 as a part of it, 5 based upon the Attorney General bringing the problem to our r 6 attention, we want a full discussion of that niatter in the 7 form of supplemental testimony. 8 Whether there is any need for rebuttal after that 9 or not, we will make that decision at the time it's filed. 10 Now you may select the time for prefiling that rebuttal 11 testimony and then we will make that decision. 12 MR. DIGNAN: May I have a moment, Your Honor? 13 (Counsel confer.) 14 15 16
, 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 l
22362 1 MR. DIGNAN: Your Honor, I note that, at least on 2 the extant schedule and I understand that there will be 3 probably a revamp in light of events we' re aware of, the 4 Rebuttal No. 7 team was scheduled fairly far down the track. 5 With that in mind -- i 6 MR. TRAFICONTE: It has been moved up. I was 7 afraid you were going to say that. ,
. 8 MR. DIGNAN: Do you know where you have moved them 9 to?
10 MR. TRAFICONTE: Yes. 11 On the-revamp schedule which I hope to make i 12 available tomorrow morning, Applicants' No. 17 would be on 13 the 12th and 13th of June. 14 MR. DIGNAN: Then that still doesn't -- what I was 15 going to ask you for, for the additional, and whether we 16 call it 17-A or just refile 17 with additional paragraphs
. 17 and data, if we could have until June 1 to file that which 18 is slightly over a week, one day over a week. i 19 JUDGE SMITH: I would say that's all right. Yes.
20 MR. DIGNAN: We will then make that filing on or 21 before June 1. . 22 JUDGE SMITH: I got the idea from the cross-23 examination this morning that maybe clipboards, as they
- 24 suggested for the maps for the bus drivers, might do the 25 Board some good in keeping track of our pleadings. But we l Heritage Reporting Corporation (202) 628-4888 4 l
l _ _ _ _ _ - I
22363
,s. 1- don't want to give the image that we're sort of like drill t i 4,,/- 2 sergeants. . We want to preserve.the image that we're sweet 3 lovable people as you know us to be.
4 MR. DIGNAN: Yes, sir. 5 (Laughter) 6 MR. TRAFICONTE: You used the word " image," Your 7 Honor.
,. 8 JUDGE SMITH: We' re known as the Mother Teresa's 9' of the NRC.
10 MR. DIGNAN: Your Honor, if we're off the record 11 about this. 12 (Discussion off the record.) 13 JUDGE SMITH: Anything further before we commence? 14 We satisfied the problem of deleting -- did you \s/ 15 check with all'the parties? 16 MR. PIERCE: Yes.
, 17 JUDGE SMITH: We have checked with Mr. Flynn and 18 we have ordered the printer at the NRC to delete from the 19 attachment to Mr. Donovan's testimony to the legend 20 proprietary information. On the May 17th testimony the i 21 attachments says, " proprietary information not to be 22 released." That causes confusion all over the NRC when they 4
23 see that. And we have ordered that deleted from the printed j 24 version of the transcripts. 25 MR. FLYNN: I think the Applicant has the most 1 ['( )) Heritage Reporting Corporation (202) 628-4888
l l DONOVAN - CROSS 22364 1 direct interest in this. Mr. Dignan, we had discussed this 2 before I made the decision to use the document. It was the 3 Extent of Play Agreements that we're talking.about. 4 MR. DIGNAN: Yes. 5 CROSS-EXAMINATION (Continued) 6 BY MR. TRAFICONTE: 7 Q Mr. Donovan, I just have a couple of follow-up
, 8 questions on the standard you applied.
9 If the individuals who were responsible or 10 obligated to demonstrate their knowledge of radiation 11 protection, if those individuals who were going to be 12 demonstrating that function did not have dosimetry equipment 13 with them, would that have been a deficiency? 14 A (Donovan) Not necessarily. 15 Q Not necessarily. 16 Would it have deoended on the number of
, 17 individuals who did not have the equipment? In part?
l 18 A (Donovan) It could. 19 Q Would it depend on the role and function of the 20 individuals who did not have the equipment in part? 21 A (Donovan) Yes. 22 Q Would it depend on the -- . 23 JUDGE SMITH: Well, how about 20 questions. Maybe 24 you can cut it short and ask what would it have depended on, 25 if he is able to answer that? - Heritage Reporting Corporation (202) 628-4888
E = o DONOVAN - CROSS 22365= l [N) 1 No, I'm sorry, go ahead. q^~' 2- MR. TRAFICONTE: No, that's not a bad question. 3 BY MR. TRAFICONTE: 4 0 What would -- 5 MR. TRAFICONTE: The-reason why I got to 20 6- questions is I have been putting that question without-7 marked success.
, 8 BY MR. TRAFICONTE:
9 Q But what would it have depended on, Mr. Donovan, 10 your judgment as to whether that was a deficiency or an 11 ARCA? 12 And remember the hypothetical is that the 13 individuals who were to demonstrate their knowledge of 14 radiation protection did not have at the exercise their 15- dosimetry with them. 16 A (Donovan) Well, if I can relate to the exercise
, 17 report and the questions you asked me earlier and carry that 18 as a hypothetical basis.
19 Q Yes. 20 A (Donovan) This Town of Stratham up here had a 21 traffic accident in it. So a wrecker was dispatched. And
. 22 the wrecker was dispatched with incorrect instructions. If 23 the dispatcher had issued the wrecker correct instructions, 24 go to local staging area and pick up your dosimetry, he 25 would have arrived at the scene of the accident with his i Heritage Reporting Corporation (202) 628-4888
- l. _ _ _ _ _ _ _ _ _ _ - - _ _ . - _
DONOVAN - CROSS 22366 1 dosimetry and when he would have been interviewed the 2 answers, I think, would have been different. J 3 Number two, even with the incorrect instruction -- l 4 again as a hypothetical -- was he in danger? There was 1 5 other people there at the scene of the accident who had 6 dosimetry. So they had the means of controlling l 7 collectively the exposure of all the individuals there.
, 8 And in this regard, by following their procedure 9 of checking their dosimetry on a regular basis they knew 10 plus information, as I indicated -- there's an assessment 11 group, this monitoring dose assessment for the collective 12 response organization for New Hampshire and they also knew:
13 (a) is there release; (b) if there's a release where is it 14 and is it affecting the responders at this location? 15 So in making my judgment I lock at all of these. 16 In this case, did this wrecker come from inside the EPZ;
, 17 outside the EPZ? And in this case, why did he fail to have 18 dosimetry because the dispatcher gave him an incorrect 19 dispatching instruction. If he had gotten it correct, the 20 dispatching instructions he would have arrived at the 21 accident scene with dosimetry.
22 Even though he failed to pick up dosimetry, was he - 1 23 or him or them, you know, in position of receiving 24 uncommitted, unmonitored dose exposure? And the answer was, 25 no, because there was other people there at the accident l Heritage Reporting Corporation (202) 628-4888 j i i I ! 1 L _ _-_ -- ;
DONOVAN - CROSS 22367 1 scene who'had dosimetry and were able to verify, we are
--(Mj 2 receiving exposure or are we not.
3 JUDGE SMITH: Was that a fortuitous circumstance 4 or one to be expected? , 5 THE WITNESS: (Donovan). Well, in my reading of 6 the plan this would be one to be expected, because first of
,,_ 7 all, a law enforcement officer is normally dispatched to the 8 scene of an accident and verifies that there's a need for a 9 tow truck or wrecker assistance. 'Chr in the case, obviously, ;
I 10 .if the people are injured you also verify the need that 11 there be an ambulance dispatched to the scene of that i 12 . accident. So in this case there would be that means. 13 There is the other issue. Again, I mentioned we
~s 11 4 had these other people at access control and traffic control i L
\ 15 points that had dosimetry. In addition, there is fixed TLDs 16 in each of the vectors of the compassnat two, five, and ten
., 17 miles. So in terms of dose reconstruction someone could i ik
, 18 have reconstructed the dose. They could have reconstructed i 19 the dose that these people received: (a) by looking at , 20- people who were at similar or identical locations and
. 21 checking their dosimetry, taking their TLD and reading it at
)
22 the end of their shift. This worker was out there for 12-23 hours what does this TLD show in terms of gross exposure, j 24 And they could have reconstructed the dose. 25 The instruments that are covered by objective six, Heritage Reporting Corporation !
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DONOVAN - CROSS 22368 I 1 again, you have to look in the broad context of what the 2 objective is trying to achieve. Is a means for the response 3 organization to monitor and control dose commitment for 4 emergency workers. 5 It also ideally provides the means for the , I 6 individual worker to monitor his exposure or her exposure 7 and report back, because in this case the State of New - 8 Hampshire has got definitive reporting procedures. If you 9 reach 150 MR total exposure, please report to us that you ! 10 have reached this. 11 And like I said, we had many scenarios in the I 12 exercise that tested this aspect. So my answer to your 13 question earlier and my answer to your question now, I look 14 at all of these factors in reaching the judgment of whether 15 the absence of dosimetry, in using this example in the 16 exercise report in your hypothetical, creates a condition of
, 17 an ARCA or a deficiency or maybe no issue at all.
18 BY MR. TRAFICONTE: 19 Q Is it a fair statement that you give them credit 20 for things they do right that often makes up for things that 21 they do wrong, in your assessing where to locate the - 22 inadequacy on the spectrum from ARCA to deficiency?
. i 23 A (Donovan) Well, if you take your statement in the 24 context of what the response function that the objective is 25 attempting to describe, then I would say that's a close Heritage Reporting Corporation '
(202) 628-4888 _ _ _ _ _ _ - n
DONOVAN - CROSS 22369 1 approximation. 2 Again, you have to look at: what does the plan 3 call for? What do the scenario conditions create? What is 4 the. actual response of the participants? And what do we 5 observe as not occurring that should have occurred because 6 of what the plan called for? 7 Then and only then, when you look at all of those
, 8 issues, what was the impact? Was the ability still there to 9 maintain control over emergency worker dose commitment?
10 To me the answer was, yes, despite the fact -- 11 using thic as a hypothetical -- that the system still had 12 the ability to maintain commitment and, if need be, to 13 reconstruct. If there had been any dose commitment, what 14 the dose commitment was to these two workers without 15 dosimetry. 16 Q Just the use of the word " commitment," can you
. 17 just clarify your use of the word " commitment?"
18 A (Donovan) In this case we have exposures to 19 potential to be exposed. Commitment is that you are 20 exposed. And in this regard the term " dose commitment" 21 means that they received exposure.
. 22 Q It's the receipt of actual dose?
23 A (Donovan) Right. 24 Q One last question in that vein. 25 Do I understand from your response that you i - Heritage Reporting Corporation (202) 628-4888
l i DONOVAN - CROSS 22370 1 consider the accident scenario in the sense that if an 2 individual failed to have dosimetry available to him or 3 failed to read it, and by sheer coincidence he happened to 4 be in an area where the plume did not pass, that that would 5 weigh in, in your assessment, of how to treat that as an 6 inadequacy? 7 I heard that in your answer? Should I have heard . 8 that? 9 A (Donovan) No, you shouldn't have. 10 I said, I look again at the overall system and the 11 individual's process of acquiring his emergency worker 12 dosimetry is part of that system. But in the case that he 13 somehow, for whatever reason, failed to acquire goes into 14 the overall picture: was there still a system in place to 15 monitor and control emergency worker exposure? 16 Q That I understood.
. 17 And I thought I heard you say, you also weigh into 18 this calculation the particular accident scenario that was 19 being modeled to determine whether it mattered for that 20 individual whether he or she had the dosimetry?
21 A (Donovan) Well, I may or may not. . 22 I'm just saying these are - you have to look at 23 all of the -- again, I look at all of the aspects before I 24 reach a decision. 25 Heritage Reporting Corporation (202) 628-4888 9
DONOVAN'- CROSS 22371
/
fC 1 1 MR. TRAFICONTE: Your Honors, I am going to
~~sI 2 distribute another document. It's already been marked as 3 Mass Exhibit No. 61, but I have additional copies and I 4 would like to show a copy to the witness as well.
. 5 (Document proffered to all parties.)
6 MR. DIGNAN: This is 61 for identification only. 7 MR. TRAFICONTE: Sixty-one for identification 8 only. And let me just preface my questions, to bring this 3 back, we had lengthy argument over this document concerning 10 its admissibility, its use by me during cross when Mr. 11 Donovan was here the first time in April. 12 In reviewing that transcript, I am of the view 13 that I was going to use the document, or at least make an 14 effort to use the document again in a very limited fashion 15 with regard to the statements in the document concerning 16 factual statements made by FEMA based on its experience in
.. 17 the conduct of exercises where FEMA has stated in these 18 comments to the NRC rule what some of its experience has 19 been with regard to evaluating exercises in the absence of 20 state participation.
~
21 Anf specifically, my questions, if permitted to 22 put them, would concern three statements in this document. 23 The first statement appears on page 2 in the paragraph at 24 the bottom. I would put to Mr. Donovan some questions L 25 concerning the statement in that paragraph that begins, i Lg Heritage Reporting Corporation A (202) 628-4888 l
1 DONOVAN - CROSS 22372 1 "Even if exercises are conducted, their value is seriously 2 diminished without the participation of state and local 3 governments." That would be my first reference. 4 The second statement is on the following page and 5 it's tb;e paragraph that begins, "In February, 1986, FEMA _ 6 participated in an exercise that did not include state and 7 local government . The roles of key government officials -
, 8 were played by FEMA employees. From this experience, FEMA 9 concludes that the practice of simulating governmental 4
10 participation has several important consequences." And then 11 it continues and describes those consequences. 12 That is the second. 13 MR. DIGNAN: What's the third? I'm sorry, John. 14 MR. TRAFICONTE: Well, you see where it says, 15 "First, the real time interaction"1 16 MR. DIGNAN: Yes. , 17 MR. TRAFICONTE: That's the second, because I've 18 already counted one from the previous page. And then the 19 third is, " Secondly, the preparedness of the state and local 20 governments is not demonstrated in any meaningful sense." 21 MR. DIGNAN: It was the first statement you want - 22 to question him about on this page is -- 23 MR. TRAFICONTE: No , the first -- I'm sorry. 24 The first statement on this page -- 25 MR. DIGNAM* Begins, "First, the real time". Heritage Reporting Corporation l (202) 628-4888 I _ al
I + l DONOVAN - CROSS 22373 l 1- MR. TRAFICONTE: Yes.
?t O -2 JUDGE SMITH: We're still looking for that second 3 one.
4 MR. TRAFICONTE: My numbering system broke down. 5 MR. DIGNAN: And the second one on that'page is e 6 the statement that beings, " Secondly" directly therefore? 7 MR. TRAFICONTE: Yes. Yes. 8 MR. DIGNAN: We're double teaming you again, 9 Judge. We've got it. 10 MR. TRAFICONTE: In substance -- 11 JUDGE SMITH: All right, we've got the first one. 12 MR. TRAFICONTE: The first one is, is on the 13 preceding page. 14 JUDGE SMITH: Yes. 15 The second one begins, "First, the real time 16 interaction"; is that it?
, 17 MR. TRAFICONTE: Let me put it this way. My 18 numbering system may have broken down. Let me put it in 19 summary.
20 The portion of the document that I would make 21 reference to and want to inquire about it all of that 22 paragraph that begins, "In February, 1986". 23 JUDGE SMITH: All right. 24 MR. TRAFICONTE: But as I understand it, there are 25 two statements made in there essentially as to the nature of
/-~ Heritage Reporting Corporation 4 (202) 628-4888 i
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I _ _ _ _ _ - _ - - - - - - - - - I)
i j DONOVAN - CROSS 22374 1 FEMA's experience in the absence of governmental 2 : participation with exercises. That was my point about two 3 and three. 4 Now the last thing I want today is lengthy 5 argument on this matter, and I have reviewed the transcript, 6 and we have had lengthy argument -- 7 JUDGE SMITH: I think there is going to be 8 unanimous agreement on that. 9 MR. TRAFICONTE: Yes, all right. And I have 10 looked at the transcript and we have had lengthy argument on 11 this matter. 12 MR. DIGNAN: But before I argue, what I want to 13 know is -- 14 MR. TRAFICONTE: Can't you say "same objection" 15 and I can say "same -- 16 MR. DIGNAN: Well, fine, but --
, 17 MR. FLYNN: Same objection. J i
18 MR. DIGNAN: -- are the questione going to be put ! 19 to the witness to which I am going to object essentially i 20 going to be, " Read that statement. Do you agree with it in 21 your professional opinion?"? 22 MR. TRAFICONTE: I am going to inquire as to his - 23 agreement with the statement. 24 MR. DIGNAN: All right. 25 MR. TRAFICONTE: I'm going to inquire further as i l
- Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22375 1 to, for example --
, ~g i 2 MR. DIGNAN: That's good enough. That-first one
}-
3 is good enough. 4 Then I'm going to object, and the reason I'm going 5 to object is even if this witness does have an opinion that 6 "these exercises have limited use, and this, that and the
, 7 other thing, can't happen," the Commission. settled that in a
, 8 rulemaking. They decided it does.
9 So even if he is of the opinion that these kind of 10 exercises are no good, that's been taken care of in the 11 rulemaking. ' 12 MR. FLYNN: This is the argument that we went 13 through before. FEMA raised these issues. The issues were 14 considered in the rulemaking. The realism assumptions
/ i 's 1 15 addressed it. And now that the realism assumptions have w/
16 been made part of the rule and sustained by the Circuit 17 Court, there is no argument. 18 JUDGE SMITH: That's the same thing, same 19 discussion over again. 20 MR. TRAFICONTE: Yes, and I'm going to make the 21 same reply and I hope I get the Board's -- because the 22 transcript is filled with comments from the Board too, I 23 think, that acknowledges the distinction. 24 JUDGE SMITH: Acknowledges what distinction? 25 MR. TRAFICONTE: The distinction between what Mr. 1
.f" Heritage Reporting Corporation
( (202) 628-4888 v
DONOVAN - CROSS 22376 l 1 Dignan and Mr. Flynn said about these statements as having 2 legal import, and these statements as carrying some factual 3 information and experience, reflecting the experience of 4 FEMA, that would permit me to inquire of the FEMA witness, 5 for example, hcw did FEMA take these matters, if it did, 6 into consideration. 7 For example, Your Honor, if you would look at page , 8 3, FEMA states here that the fact that they have to simulate 9 governmental participation compromises the quality of the 10 findings which FEMA makes. 11 This is the FEMA -!Atness prepared to defend the j 12 findings that they have now made on a utility-only plan. I 13 would want to press and probe on precisely what the quality 14 of that finding is in light of the very concern about the I 15 problem of making such a finding in the absence of state and 16 local governmental participation.
, 17 Obviously, the NRC has by rulemaking made it clear 18 that there can be such a thing as an exercise of a j l
19 nongovernmental plan. That is not the point here. j I 20 The question here is what is the nature of the 1 1 21 FEMA review of that plan and how much would they defend it, . l l 22 for example. Would Mr. Donovan answer and say, yes, in fact ! 23 this is a fairly conjectural finding that we've made because 24 it's a utility-only plan, and we told the NRC back in 1987 25 that it was going to be conjectural and it is? l l Heritage Reporting Corporation l (202) 628-4888 l
DONOVAN - CROSS 22377 j 1 1 MR. FLYNN: No. In fact, we have been through ! [\s_/) *- 2 this before, and the answer is, it doesn't go to what the 3 nature of the review is. The answer is that in conducting i
)
4 the exercise we made every effort to force the utility to 5 exercis'e the plan as a stand-alone plan so that the 6 interface with the state and local governments was minimal, 7 and that we weren't judging the response of state and local 8 governments. We were judging the. response of -- at least in
- 9. the Massachusetts portion -- of the ORO given a scenario 10 that didn't have state and local participation.
11 MR. DIGNAN: Having hear 2 Mr. Traficonte's further 12 defense of.why he wants to get into this, I would like to 13 amend my objection. That is, to hold to the first point I
/mI 14 made which is, given the Commission's rules and regulations, U
15 it is irrelevant as to what this witness's opinion or any 16 other witness's opinion is of the efficacy of the exercise
. 17 or the ability to make findings. The Commission has decided 18 this is what they want done.
19 More importantly, having heard that what we are 20 really doing is probing how FEMA does its job again, I would
-9 21 remind the Board that the other thing I thought we had 22 deemed settled in this case is prescinding from the issue of 23 whether you could have brought in a contention that was 24 nonspecific and ran to the whole of FEMA's performance, the 25 fact is there isn't such a contention before this Board.
O h Heritage Reporting Corp *) ration (202) 628-4888
DONOVAN - CROSS 22378 1 So to the extent that it's being urged upon you 2 now on the basis that this is a probing of generally how ! 3 FEMA does things and worth of its findings in light of this, 4 it's inadmissible for that reason also. 5 I make those objections as two independent, and I
~
6 think both proper objections. 7 (The Board confers.) . 8 JUDGE SMITH: Mr. Traficonte, would you focus once 9 more on what is different this time around? 10 MR. TRAFICONTE: I am not making a different 11 argument. In reviewing the transcript, I quite clearly in 12 the transcript in April stated that we would revisit this 13 document because the particular -- 14 JUDGE SMITH: So this is a place marker for you, 15 is that what -- 16 MR. TRAFICONTE: No, not at all.
. 17 The discussion we had in April when we went 18 through this at much longer length, we heard the same 19 arguments we have heard today, the way it was resolved was 20 the Board noted that there was some or could be some factual 21 material in here. .
22 I came back the next day and I said, and I 23 apologize, I don't remember the days, I came back the next 24 day and I said, I have reviewed the document. To the extent , 1 25 that there is such factual material, factual statements I Heritage Reporting Corporation (202) 628-4888 4
DONOVAN - CROSS 22379 1 about their prior experience, it concerns the exercise. I f3 1 ) 2 was cross-examining him in April on the plan. I said, I v 3 will basically defer my crc 3-examination on those factual 4 portions until he comes back again. And that's where we are 5 now. 6 Now, to be completely fair, I don't think that the
. 7 Board --
, 8 JUDGE SMITH: Bu' The consideration, evidentiary 9 considerations are the same, aren't they?
10 MR. TRAFICONTE: The evidentiary considerations 11 are the -- 12 JUDGE SMITH: Are you expecting the same ruling? 13 MR. TRAFICONTE: This is my point. To the extent p_ 14 that we have articulated or described factual parts or l (! ,/\ 15 statements in here, the Board has not ruled, l I 16 JUDGE SMITH: No, these are the same factual 17 statements, or at least similar to the same factual 18 statements we looked at before. I mean, we looked at the 19 general proposition in this letter. Without state and local 20 government participation, FEMA would believe that there was
, 21 something lacking, something inadequate.
22 MR. TRAFICONTE: In its capacity to make findings. 23 JUDGE SMITH: Right. And that is the gist of the 24 language you are offering now. That's what the whole thing l 25 is about. I l l Q J Heritage Reporting (202) 628-4888 Corporation O l l L___- _ _ - - _ - - _ _ l,
t DONOVAN - CROSS 22380 1 MR. TRAFICONTE: Yes. The weight to be given -- 2 in sum, I would look for findings, proposed findings on this 3 point that say that the Board should not give very much 4 weight to the FEMA findings because FEMA itself has some 5 doubt about the strength of its position, and it's on record 6 for stating that when you don't have a government 7 participating, many of the judgments are conjectural. , 8 JUDGE SMITH: Right. 9 MR. TRAFICONTE: I mean, that's exactly what I 10 would like to use this for, for my findings, and I just want 11 to probe a little bit further with the witness. l 12 In fact, criginally in April, Your Honor, I had 13 offered this document in evidence, and I would offer again 14 these two references I have made to those two pages in 15 evidence as the position of FEMA. 16 MR. FLYNN: Your Honor, Mr. --
, 17 MR. DIGNAN: As a position that FEMA took in a 18 rulemaking.
19 MR. TRAFICONTE: Yes. 20 MR. DIGNAN: Which subsequently was done. And for 21 all I know FEMA totally agrees with the position the NRC , 22 took after it assessed the record with the wisdom that came 23 to it after reading comments such as those we filed. 24 JUDGE SMITH: Let's say that, as is the case here, 25 FEMA could have been saying these things in say even a i Heritage Reporting Corporation (202) 628-4888
-- ---- - l
;i DONOVAN - CROSS 22381
[~ ' 1 ' congressional testimony or wherever, and not in comment for 2 rulemaking. Let's assume that these are stand-alone l 3 statements that FEMA made. It was a quiet day so they just 4 issued a news release and this is what came out. ! 5- (Laughter.) 6 JUDGE SMITH:
-.' So take it,fut of context of the 7 rulemaking.
8 MR. DIGNAN: Only the AG office does that. 9 (Laughter) z 10 MR. DIGNAN: On a quiet day. 11 MR. TRAFICONTE: We don't have a quiet day. 12 MR. DIGNAN: When they are not holding rallies. 13 JUDGE SMITH: What they are saying here, in f% 14 effect, as I understand it, the net effect of this is that 15 without state and local government participation they cannot 16 have preparedness of the state and local governments being
,, 17 ~ demonstrated as well as if they had participated. And in 18 general, without the state and local governments 19 participating, they are not going to be able to make their 20 findings as strong as if they had participated.
21 In other words, they are saying exactly what the
. 22 Commission has told licensing boards that it may not do.
23 And that is, it may not compare a plan and then necessarily 24 an exercise of that plan without state and local 25 participation with the hypothetical plan and the exercise of k Heritage Reporting Corporation (202) 628-4888 _________ _ _ _ _ _ _ . _ _ - - 1
DONOVAN - CROSS 22382 1 the hypothetical plan -- a hypothetical exercise of a , 2 hypothetical plan with the state and local government 3 participation. 4 4 And all this is offered for is to show that FEMA 5 saw a contrast between state and local participation and 6 nonparticipation, and that one is better than the other 4 7 factually. 8 But we have also had the overriding, as I've 9 stated and I'm repeating now, we also have the overriding 10 admonition instructions to the adjudicatory boards not to 11 make comparisons between a hypothetical plan, a nice but ; 12 hypothetical, with the one actually before us. 13 So for that reason, in addition to whatever other 14 reasons we may have had before, what is the motion? , 15 MR. TRAFICONTE: I would like to offer the 16 portions of the, Mass Exhibit 61 that I noted on pages 2 and i . 17 3. Just so we get a clean ruling, I would like to offer 18 those portions into evidence. 19 MR. DIGNAN: Objection. 20 MR. FLYNN: Objection. 21 MS. CHAN: The Staff objects. 22 . 23 24 25 Scritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22383 y '~'N 1 MS. CHAN: Your Honor, the Staff's original i !
\
N '/ 2 objection was that it was a challenge to the NRC rule; and 3 the Staff would take this opportunity to renew that 4 objection. 5 JUDGE SMITH: Well, we are not revisiting the 6 original reasons for rejecting it. I see no distinction 7 here. And I believe that the additional reasons we gave the 8 admonition not to compare a hypothetical plan with the plan 9 actually being presented and exercised and that's an 10 additional reason. So your offer is rejected. 11 Do you want to give it a new exhibit number or do 12 you just want to keep double rejection on the old one? 13 MR. TRAFICONTE: We can just leave it at 61. [\ l
\ 14 JUDGE SMITH: All right.
15 So Exhibit 61 was reoffered on this date and 16 rejected again. 17 (The document rcferred, 18 having been previously marked 19 for identification as 20 Mass AG Exhibit 61, was 21 rejected again.)
, 22 MR. TRAFICONTE: Your Honors, I'm going to pass on 23 to the second roman numeral on the cross-examination plan.
24 BY MR. TRAFICONTE: 25 Q I would like to ask you a series of questions, Mr. y~ () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22384 1 Donovan, about the various modes of implementation as tney 2 are described in the SPMC focusing on, to what extent these 3 various modes were exercised. 4 You're familiar, are you not, with the fact that 5 the SPMC describes several modes in which it could be 6 implemented? 7 A (Donovan) Yes, I am. . 8 Q Would you agree with the statement that the 9 exercise in June, essentially, was limited to the 10 implementation of the SPMC in mode two full? 11 A (Donovan) Yes, I would. 12 Q Would you agree that FEMA's findings as to the 13 implementation capability of the SPMC are limited to the 14 implementation of the SPMC in mode two full? 15 A (Donovan) I don't understand your question. 16 Are you talking about --
, 17 Q I may have omitted a question.
18 One of the objectives of the exercise is to 19 determine whether the plan of record is implementable; 20 correct? 21 A (Donovan) That's correct. . 22 Q This plan has more than one mode in which it can 23 be implemented; correct? 24 A (Donovan) That's correct. 25 0 And in part that involves different individuals Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ . - - - 1i
4 I l l DONOVAN - CROSS 22385 [~'S 1 from different organization: in the one case the state; in A~ . 2' the other case ORO, having different responsibilities ! 3 depending on what mode of implementation is being.used;
'4 correct? I
/ I
-5 A (Donovan) That's. correct.
6
.' But the mode of implementation is deterr.ined upon 7 the state's response. , 8 Q No dispute. No dispute, 4
9 I'm focusing on the purpose of the exercise being 10 a determination of the implementability of the plan. l 11 -It's a fair statement, isn't it, that-the June 12 exercise verified the implementability of mode two full of 13 the plan; correct? .[ \ 14 A (Donovan) That's correct. 15 Q It's also a fair statement that the exercise was 16 not designed to test the implementability of this plan in
, 17 any other mode; correct?
18 A (Donovan) That's correct. 19 Q And so therefore FEMA has made no exercise 20 findings concerning -- let me withdraw that. FEMA has made 21 no findings based on the June '88 exercise as to the
. 22 implementability of the SPMC in any other mode but mode two 23 full?
24 MR. FLYNN: Excuse me, can I ask for a 25 clarification of the question. When you talk about making g' Heritage Reporting Corporation (202) 628-4888
-___________.m_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ _ _
DONOVAN - CROSS 22386 1 findings it gets to be fairly complex, because there was a 2 whole series of documents filed with the NRC in December of 3- '88, one of which was an overall finding on reasonable 4 assurance. 5 Is that the finding you are referring to or are
- 6 you restricting your question simply to the exercise report?
7 MR. TRAFICONTE: Thank you. 8 Thank you, Mr. Flynn. 9 BY MR. TRAFICONTE: 10 Q Let me direct your attention, Mr. Donovan, to 11 Exhibit 43 (b) . Do you have that available to you? 12 A (Donovan) No. But I'm sure I can get it. 13 Q Does your counsel have an additional copy. 14 It's the findings document that you just referred 15 to. 16 MR. DIGNAN: 43 (a) is the overall finding. . 17 MR. TRAFICONTE: In the letter. 18 BY MR. TRAFICONTE: 19 Q Exhibit 43 (b) is entitled, " Findings and 20 determinations for the Seabrook Nuclear Power Station." 21 A (Donovan) I have that document. 22 I thought you were referring to the letter. . 23 Q No , not the letter. 24 A (Donovan) The document that runs approximately 41 25 pages of Appendix A and Appendix B? Heritage Reporting Corporation (202) 628-4888 l l
\
l
)
.I DONOVAN - CROSS 22387 l 1 Q Yes.
s ) 2 A (Donovan) I have that document available in its x_/ l' 3 unabridged form. Not with the global numbering system. 4 Q Can you point out in this document where FEMA has 5 made a finding as to the implementability of the SPMC? 6 A (Donovan) This isn't the document that purports
. 7 the agency's position. This is the document that purports 8 the status of plans and preparedness against the planning 9 standards for the Seabrook site.
10 The document that Mr. Dignan referred to, which I 11 believe is Exhibit 43 (a) is the finding of the agency. 12 Q Let me cut through the administrative distinction. 13 What I asked you originally was, I asked you
,_ _4 questions concerning FEMA's finding that the SPMC can be i
( ,) t 15 implemented? There is such a finding, is there not? 16 A (Donovan) Yes, there is. 17 Q Can you direct me to where that finding is written 18 down? 19 A (Donovan) Yes. 20 In the December 14th letter from Grant Peterson to
. 21 Mr. Stello.
22 Q I see. 23 So it is in that letter, the letter that contains 24 the reasonable assurance finding, that FEMA sets forth its 25 view that the SPMC is implementable? 1 , jN Heritage Reporting Corporation i ( j i (202) 628-4888 k' L__ _ _ _ _ --- - - - - - - I
DONOVAN - CROSS 22388 1 A (Donovan) Yes, it is. l 2 Q Now, as to implementability, it's a fair statement l l 3 that, in your judgment, the plan is implementable is based 4 on the holding and conduct of the June '88 exercise; 5 correct? - 6 A (Donovan) No , it's formed on the four legs that 7 we previously discussed: review of the plan; review of the
, 8 exercise; verification that the resources so identified in 9 the plan are available; and the preparedness programs are 10 underway; and verification that the staff that are 11 identified as responders have been trained.
12 Q All right. 13 So the implementability of the plan has as its 14 basis all four legs? 15 A (Donovan) You're mixing terms. 16 The FEMA finding has all four legs. And the FEMA
, 17 finding is composed of two parts: one, that the plan is 18 implementable; and, two, that the implementation of the plan 19 provides reasonable assurance that the appropriate 20 protective measures could be taken to protect the public's 21 health and safety.
22 So there is two components to the FEMA finding: . 23 one, the plan can be implemented; and, two, the 24 implementation of the plan provides reasonable assurance 25 that appropriate protective measures can be taken to protect j l Heritage Reporting Corporation (202) 628-4888 l i i
DONOVAN - CROSS 22389 l t . E
,7~s L 1 the public's health and safety, i \-
(' /
'- 2 Q Understand my next question runs to both 1'
- 3. ' components as you've described them.
4 It's a fact, isn't it, that the judgment that FEMA 5 has made -- the finding that FEMA has made runs to only mode 6 two-full of the SPMC? 7 A (Donovan) I have problems with your question.
. 8 Our judgment is broader than what we can base our 9 evaluation on. We can only base our evaluation on what we 10 can demonstrate. With the absence of state and local 11 government participation we made -- and I made statements 12- - ,we made no conjecture on something that we cannot 13 observe.
[} 14 But that is part of the implementation of the plan NJ 15 and that is part of the review of the plan. 16 But you're asking a separate question, as I
. 17 perceive it to be: is FEMA's judgment expressed in FEMA's 18 finding as contained in the December 14, '88 memo to the ;
19 NRC, is that just limited to mode two? And I believe the 20 answer would be, no. 21 Q So FEMA has made a finding that if the plan were 22 implemented in other modes there would be reasonable 23 assurance of adequate protection? 24 A (Donovan) Yes. 25 JUDGE SMITH: This was, I'm sure, covered once,
/7 ' t, Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22390 1 At least once. 2 MR. TRAFICONTE: I don't believe it was covered. 3 I'm not going to be on this point long. And I don't believe 4 it was covered specifically as to the scope of the exercise; 5 and that was my only inquiry. 6 JUDGE SMITH: Is it your purpose to have some 7 place markers where you have covered points with respect to . 8 the plan to have the same place markers in place for the 9 exercise; is that a part of your pattern? 10 MR. TRAFICONTE: On this particular point I had 11 reviewed the cross-examination I had done on Mr. Donovan on 12 the plan, and I wanted to touch just a couple of basis on 13 the scope of the exercise vis-a-vis the various modes of 14 implementation. 15 But not intending to go back over the same ground. 16 BY MR. TRAFICONTE:
, 17 Q Mr. Donovan, I would like to know what your 18 understanding of the plan is. Does the ORO request legal 19 authority from the governor?
20 A (Donovan) That's part of the implementation of 21 the plan; yes. . 22 O When an accident occurs and they make contact with
~
23 the governor or the governor's representative, ORO 24 representatives request legal authority that it be delegated 25 tc them? Heritage Reporting Corporation (202) 628-4888
-- - _ _ -- _ L
DONOVAN - CROSS 22391 7'~'N - 1 1 A (Donovan) There's a long list of items that the A h \ ~ 'l 2 .ORO response organization goes through. And before.they l l 3 get, I believe, to the portion of the list that deals with 4 legal euthority one of their series of questions' is to 5 ascertain, is the state going to respond? Is the state 6 -going to respond and request ORO assistance in responding? 7 Or is the state going to respond as a state stand-alone and
, 8 ORO should not further implement its plan and mobilize its' 9 resources?
4 10 So before you get to the issue of legal authority 11 there's a series of questions. I would be happy to go get 12 the portion of the plan, if you like, and get them out on 13 the table so I can look at them specifically. 14 Q Are you fairly familiar with the provision of the 15 plan in this regard? 16 A (Donovan) Well, I have to have it in front of me 17 to refresh my memory. 18 But it's my belief that they start off, first of 19 all, the State of Massachusetts is notified by the onsite 20 -organization just as the.ORO is notified by the onsite 21 organization. So as the offsite organization known as the 22 ORO begins to come together one of the initial things they 23 do is, they are achieving critical mass as a response 24 or.3anization is to request the state to advise the ORO what 25 status the state is going to take.
.[ ! Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22392 1 1 And the answers to those initial questions are 2 going to determine what ORO does. 3 Q Does ORO -- I have to do it my way and not your 4 way. Does ORO provide a series of options to the state I 1 5 officials and say, you pick which one you want to pursue? - 6 Or does it actually make an affirmative request for legal 7 authority?
, 8 A (Donovan) I don't believe, without looking at the 9 plan, I don't believe the offsite response organization's 10 point of contact with the state asks them questions, is this 11 a mode 17 Is this a mode 2?
12 They start off, the state of Massachusetts, are 13 you going to respond to this incident? And the questions go 14 from there. If so, do you want us to standby? Do you want 15 us to be prepared to implement portions or all of our plans? 16 And what you and I have called mode 1, mode 2, , 17 mode 2 partial is really a label that you would hang on to a 18 pattern after a series of decisions have been made and it is 19 not a conscious network to force someone to fall into one 20 column or another column. 21 Q Mr. Donovan, as a matter of fact, during the 22 exercise did the contacts -- the ORO officials who contacted . 23 the governor and the governor's -- the simulated governor 24 and the simulerted governor's designee -- did the ORO 25 contacts affirmatively request legal authority? I Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22393
-f>~x 1 A (Donovan) In one of their steps, yes.
! s. 2 But that was after they were advised that the 3 state was not going to respond. The state was not going to 4 commit resources. And the state was going to assume that
. 5 the ORO would do so.
6 In fact, the control cell came back and said -- 7 FEMA control cell representing the state -- that they would
, 8 only grant authority and decisions on a case-by-case basis.
9 They precluded the ORO, for example, from implementing 10 precautionary protective actions for school children. 11 They insisted every step of the way that they had 12 to justify the rationale for protective action. And once 13 they made a decision the state -- that is, made the decision
/N 14 and the state insisted by only issuing at that time ,
N, l 15 authority necessary to implement that protective action. 16 Q I want to ask you a series of questions concerning
. 17 the scope of the exercise. And just so we're clear on our 18- use of the word " scope" in the line of questioning that 19 follows, I'm using " scope" in the sense of Interveners' 20 challenge to the exercise design as fully testing the 21 response organizations to meet the NRC's regulations.
22 You're familiar with that use of the word " scope," 23 are you not? 24 A (Donovan) I believe so. 25 You mean the ones that are contained in the 0 g Heritage Reporting Corporation (202) 628-4888 _ _ _ _ - ___ _ _ __ - __ __ _ __ _ - - , _ - _ - _ - __. = ___ _ .
DONOVAN - CROSS 22394 1 various contentions? f 2 Q The various contentions labeled " scope 3 ' contentions," yes. ; 4 MR. FLYNN: Mr. Traficonte, for my own edification 5 I wonder if we could just explore that a little bit. 6 I have used the term " scope" in two different 7 senses. The first sense is, are all the objectives which .
, 8 may reasonably be tested without mandatory public 9 participation tested.
10 MR. TRAFICONTE: I missed the last part of what 11 you just said. 12 MR. FLYNN: The first sense is, are all the 13 exercise objectives which may reasonably be tested without 14 mandatory public participation tested in this exercise. 15 That's sense number one. 16 Sense number two is, for given objectives is the
, 17 Extent of Play and the scenario detailed enough to give a 18 meaningful test of the individual objective.
19 In the colloquy that we had with the Board last 20 week the Board indicated that it was the second sense that j l 21 was closer to ALAB 900. I assume that's the sense that you . j 22 are using the term.
~
23 MR. TRAFICONTE: Well, it may be a clarifying 24 discussion. I would just say for whatever it's worth that 25 the Interveners view " scope" as having precisely the two -- Heritage Reporting Corporation (202) 628-4888 E_--- -- - - - - - - - - l
DONOVAN - CROSS 22395 s- 1 having the two aspects that Mr. Flynn just described. 2 We have made out scope contentions, some of which 3 were admitted and some of which were not, that claimed that-4 there were areas of performance not tested. And therefore, 5 the' exercise is deficient because its scope wasn't extensive 6 enough. 7 We have also filed scope contentions that claim
,. 8 that as to an area tested the sample size, for example, the 9 number of ambulances they chose to test, the sample size was 10 insufficient to fully test or appropriately test that area.
11 So I understand scope contentions running to both 12 of those defects. 13 MR. FLYNN: I'm not challenging that. I'm just f ~s . 14 trying to understand your series of questions.
/ \
<- 15- MR. TRAFICONTE: It wou d run to both.
16 BY MR. TRAFICONTE: 17- Q You have followed the colloquy, Mr. Donovan, as to 18 scope? 19 A (Donovan) Yes, I have. 20 Q N6w, can you describe in a fairly brief way the 21 process whereby the Extent of Play Agreements come to be 22 finalized? 23 A (Donovan) The document -- I forget the exhibit 24 number -- EX-3, we discussed last week that has a set of 25 milestones. The first milestone is to submit objectives. h) (, Heritage Reporting Corporation (202) 628-4888 _ _- o
1 DONOVAN - CROSS 22396 1 The second milestone is to submit Extent of Play. ! 2 And at some point downstream from that milestone 3 we reach agreement on Extent of Play. , 1 4 Is that brief enough?
~
5 0' Well, yes, that's fine. And maybe the question 6 wasn't precise enough. 7 Let me ask you about constraints.
. 8 In negotiating -- well, in the process of 9 formulating Extent of Play Agreement and then negotiating it A
10 and then approving it, you take into consideration 11 constraints on the Extent of Play, do you not? 12 A (Donovan) We can. 13 Q You did? 14 A (Donovan) I did. 15 Well, I thought your question was in the generic 16 sense.
, 17 Q Well, let's focus on the June '88 exercise.
18 You did, in fact, take into consideration 19 constraints; correct? 20 A (Donovan) Yes. 21 Q And if I could call your attention to Applicants' 22 Exhibit No. -- - 23 (Pause) 24 MR. TRAFICONTE: We have marked -- 25 MR. DIGNAN: Mr. Traficonte, could I interrupt you l l Heritage Reporting Corporation I (202) 628-4888 i ( ) Y____ _ __ _ _-_ _
DONOVAN - CROSS 22397
,_ 1 and inquire?
i
,/ 2 MR. TRAFICONTE: Yes.
3 MR. DIGNAN: What is your best call now of when 4 you're going to finish with Mr. Donovan? ! 5 , And the reason I'm asking it, Your Honor, is this 6 simply: if Mr. Traficonte is fairly confident that he will l 7 take the afternoon, I have very little, if anything, for Mr. j
, 8 Donovan. I don't knew if the Staff has or not. What I want 9 to know is, do I need to have another panel down here to be i 10 ready to go today or do you feel that you will use most of 11 the afternoon.
12 MR. TRAFICONTE: I will take the rest of the 13 afternoon and I'm not sure, probably into tomorrow. 14 MR. DIGNAN: Okay, fine. Then I won't worry about s- 15 having that other panel here. 16 MR. TRAFICONTE: I just want to make sure the
. 17 record is clear.
18 I want to make reference to the Extent of Play 19 Agreement that has been bound and admitted into evidence, 20 and I'm not sure what number we have given that. 21 MR. FLYNN: It's not one of your exhibits. It was 22 Attachment A to the prefiled testimony. 23 MR. TRAFICONTE: Yes. 24 And Applicants' Exhibit No. 61 is the exercise 25 scenario, seven volumes, a portion of which is the Extent of l l I ,~, ( 'T Heritage Reporting Corporation i s_,/ (202) 628-4888
DONOVAN - CROSS 22398 i 1 Play Agreement. 2 So I will refer to Exhibit 61. And for 3 convenience I'm going to have in my hand your Attachment A 4 to your testimony. 5 JUDGE SMITH: Wait a minute. What are you going - 6 to refer to? 7 MR. TRAFICONTE: I'm going to refer to Attachment 8 A to Mr. Donovan's testimony. 9 JUDGE SMITH: Okay. 10 MR. TRAFICONTE: Which is a portion of Applicants' 11 Exhibit No. 61, 12 JUDGE SMITH: No , 43. 13 MR. TRAFICONTE: 61 is the seven volume exercise 14 scenario. 15 JUDGE SMITH: Oh, yes. Right. 16 BY MR. TRAFICONTE:
. 17 Q Now, let me direct your attenticn, Mr. Donovan, to 18 the third page of your Attachment A, the Extent of Play.
19 Can you locate -- I think it is table No. 1, the 20 Extent of Play constraint matrix; do you see that? 21 A (Donovan) Yes, I do. 22 JUDGE COLE: What page, Mr. Traficonte? , 23 MR. TRAFICONTE: Well, the bottom right hand 24 corner has an E/3.1.1.2. 25 Heritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 22399;
,W{ 1: BY-MR. TRAFTCONTE:
- l As -
2 Q .And there appear on this page and:the following-3 page.a list'of constraints; do you see that? 4 A (Donovan) Yes, I do.
- 5 Q' Now, I=take it that the judgment involved by FEMA-p' O 6' in signing off on the Extent of Play Agreements is to ensure.
L 7 that, on'the one hand, that the exercise sufficiently; a 8~ demonstrate performance to meet the regulations; but on the 9 other hand, takes sufficient consideration -- take into 10 ' consideration-sufficiently these constraints. 11 Is that a fair statement? 12 -A (Donovan) No, I wouldn't say that's a fair 11 3 statement. 14 Our judgment in signing off on the Extent of Plays 15 was that it presented a reasonable and achievable 16 -demonstration'of those components that are observable of the.
., .17 offsite response organization's plan.
.18 Q Let me give you an example.
-19 Let's take ambulances as an example. And let's-
-20 assume that-one of the purposes of the exercise is to 21 demonstrate certain capacities vis-a-vis ambulances.
22 A (Donovan) Okay. 23 Q I take it, that one of the constraints on the 24 Extent of Play and on the exercise is the number of 25 ambulances available in the region? ,
?'
8eritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 22400 1 A (Donovan) Not necessarily. But that could be a 2 constraint, yes. 3 Q Well, I'm looking at this table and I'm looking at 4 the second constraint, and I understand the second 5 constraint to be that you can't take all the ambulances in . 6 the EPZ and put them in the exercise; and thereby, put the
~
7 public at some risk of not having an available ambulance.
. 8 I mean, that's the kind of constraint that is; 9 correct?
10 A (Donovan) That is a typical example. I don't 11 believe the words " ambulances" are used in this one. 12 Q Well, it says: " health and safety duties." 13 And the first constraint, that's a constraint 14 simply on FEMA's capacity to have enough evaluators to 15 observe activities; correct? 16 A (Donovan) That's correct.
, 17 Q I want to direct your attention to the second page 18 of this table where number five sets out what I think is 19 described as a litigation constraint.
20 I would like you to explain what this fifth 21 constraint is, and what your understanding of it is? 22 A (Donovan) I can't recall. 23 This is not my list. This is a list that all the 24 parties put together and attached to the package that was 25 submitted for review,, Heritage Reporting Corporation (202) 628-4888 i o
DONOVAN - CROSS 22401 1 Our actual approval was not on this table. But i , ! ) 2 our actual approval is based on what is stated in each one j x_a 3 of the individual Extent of Play Agreements. 4 Q I understand that. 5 But if we would just turn, for example, to the 6 very first Extent of Play Agreement in this document, which
. 7 is 3.2.1. And I use this only as an example. It happens to
, 8 be the first Extent of Play Agreement regarding the scope of 9 the exercise for the ORO; correct?
10 A (Donovan) That's correct. 11 Q And essentially, these Extent of Play Agreements 12 are divided by functional area; correct?. 13 A , (Donovan) Normally. 14 Q Normally. 15 If you turn to the second page of this section 16 3.2.1., do you see a whole section of the Extent of Play
, 17 Agreement that lists the constraints to reasonably 18 achievable; do you see that on the second page?
19 A (Donovan) Yes. 20 Q So each one -- and just take my word for it --
. 21 each one of these Extent of Play Agreements has a similar 22 section.
23 Each one of the Extent of Play Agreements was 24 negotiated in the light of certain constraints; correct? 25 A (Donovan) That's correct.
' 3 Heritage Reporting Corporation
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1 DONOVAN - CROSS 22402 1 Q Now, going back to the chart that appears at the 2 outset of this document, I would like to know if you are 3 able to enlighten us as to what the nature of the constraint 4 regarding sample size was? 5 A (Donovan) I don't understand the question.
~
6 0 Well, let's look at the language that's set forth 7 in the table and perhaps you can just simply explain, to the 8 best of your ability, what it means. ! 9 Number five reads: " Litigation, sample size for 10 observation (e.g. number of buses to be mobilized and i 11 driven) this wi'.1 expand the necessary number of events." 12 Do you either have a memory or can you tell us 13 today what this is referring to, the sample size as a 14 constraint on the exercise? 15 JUDGE SMITH: We can't find the page of your t 16 example. "
, 17 MR. TRAFICONTE: I'm sorry. There's a table.
18 JUDGE McCOLLOM: I didn't follqw you on the other 19 page. l 20 MR. DIGNAN: Yes, that's where I couldn't follow 21 you either. You referenced another statement about a 22 constraint. . l l 23 MR. TRAFICONTE: Yes. I turned to the very first 1 24 Extent of Play Agreement, which 3s just the next page or 25 two. Heritage Reporting Corporation (202) 628-4888 I i ________a
-l DONOVAN - CROSS 22403.
1- MR. FLYNN: It's on page E/3.2.4. i f 2 MR. .TRAFICONTE: Yes.
]
V i L. 3 MR._DIGNAN: Page two of four. i [' i L 4 MR. FLYNN: Yes. 5 MR. TRAFICONTE: Page two of four, section No. ,.
}
6 3.2.1. l 7 MR. DIGNAN: Okay.
, '8 MR. TRAFICONTE: And the section entitled 9 " Constraints."
10 BY MR. TRAFICONTE: 11 Q Let me go back, Mr. Donovan, to this litigation 12 constraint. Let me just put the question to you directly. 13 Did FEMA come to the view that there was a certain
. 14 minimum sample size'necessary for the appropriate s,,/ 15 . demonstration of certain response capabilities?
16 _A (Donovan)- No, they did not.
,; 17 Q So this constraint listed here is' unfamiliar to 18 you, generally?
19 A - (Donovan) I've seen the words. I tried to answer 20 your question earlier. I said that I don't recall that as
.- 21' being another other than a table that was generated after 22 all the-documents were created to show a pattern or subsets 23- in each of the individual documents. And that unto itself, 24 that statement in no way directed or guided me in making the 25 decision as to what I wanted in terms of a reasonable and Heritage Reporting Corporation I (202) 628-4888
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I l I l DONOVAN - CROSS 22404 1 achievable demonstration. 2 Q Did you or did FEMA determine in any fashion what 3 appropriate sample size is necessary to adequately 4 demonstrate a particular response function? 5 A (Donovan) The guidance to the region is to be a 6 reasonable and achievable demonstration. And what 7 constitutes a reasonable and achievable demonstration, first
, 8 of all, starts off with the respondent's function to be 9 demonstrated. And then what can be demonstrated without it 10 impacting the public's participation.
11 And then you go down to, how is the plan to be 12 implemented vis-a-vis the scenario? And from that point 13 down. 14 Q Is there any guidance that FEMA has provided to 15 you as to how to make those judgments concerning -- and 16 again, I just go back to ambulances -- the number of , 17 ambulances that would be tested to have the exercise be 18 appropriate under the regulations? 19 A (Donovan) Well, FEMA expects me to use my 20 professional judgment. 21 Q I understand that. 22 Has FEMA provided any guidance for the exercise of ! 23 that professional judgment? 24 A (Donovan) I'm going to answer your question. 25 In the areas -- and I answered it once before but Heritage Reporting Corporation (202) 628-4888 G, >
DONOVAN - CROSS 22405 1 I will answer it'again. In the areas where response
'l j' 2 functions are done day-to-day by persons such as the ability l \m_/ -
3 to drive a bus from A to B, the transport of me' dical persons
'4 by ambulances.
5 In this regard we assumed that these people know 6 how to do their job. They're functioning every day in that
., 7 area. And therefore an adequate demonstration of those o 8 functions does not require extensive deployment of 9 resources.
10 We are testing the tools. We are testing the 11 process. We are testing the mechanism. 12 If a person's emergency response assignment is 4 13 something that is called for only by the exercise, and day-14 to-day their job is completely different than what they do f (3) , 15' in their emergency assignment and then we ask for a more 16 extensive demonstration to verify that the people are
, 17 trained and the people fit into the response organization as 18 called for by the response plan.
19 In.stme cases they provide specific examples. For 20 example, they're very limited. But in MS-1 hospitals the
. 21 ambulance drill is part of that component where we 22 transported an injured contaminated person. The Agency's 23 guidance is very clear that one ambulance, one victim, one 24 hospital is all that's necessary to meet the needs of the 25 exercise.
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DONOVAN - CROSS 22406 1 In most cases they leave it to the judgment of the 2 regional staff, because we're the ones who are in the best 3 position to know what the plan calls for, with whom in that 4 plan are identified to be responders. And of that set of 5 respond 3rs, how many perform their emergency functions on a
- 6 daily basis and how many only perform their emergency 7 functions as part of the exercise or drill or training
, 8 program.
9 10 11 12 13 14 15 i 16 17 18 19 20 !
. i 21 22 -
23 24 25 I Heritage Reporting Corporation (202) 628-4888 1 1
)
DONOVAN - CROSS 22407 7 'S 1 Q I would like to walk through with you one of the
, i l
x' 2 Extent of Play agreements with the ORO. And it's the very l 3 first one, 3.2.1. 4 No w, thic is an agreement, is it not, running to
. S the functional area of the special care facilities and 6 nursing homes, correct?
~
, 7 A (Donovan) That's correct.
8 Q And essentially these pages, and I take it there 9 are four of them for this one Extent of Play, these pages 10 describe what is going to be necessary, what performance is 11 going to be necessary in FEMA's view to establish the 12 capabilities of the ORO with regard to emergenc*, planning 13 for the special care facilities and nursing homes, correct?
/} 14 A (Donovan) No , I wouldn't say that. It describes 15 what we agreed,to as how the response function would be 16 demonstrated which is different than what performance is
. 17 necessary.
18 If you want to put it in context of what 19 performance is necessary to adequately demonstrate response 20 activity for that objective, I might agree with that --
~
21 Q That's what I intended. That was what I intended 22 by my question. 23 A (Donovan) -- with that qualification to your 24 statement. l l 25 Q All right. l l
,/~
( ) Heritage Reporting Corporation N/ (202) 628-4888 l --a----._- _ - - .
. DONOVAN - CROSS 22408 1 Now I would like to direct your attention to the 2 actual portion of this agreement labeled " Extent of Play" 3 which begins on the bottom of the first age.
4 Do you see that? 5 A (Donovan) Okay. 6 Q And I would like to read the summary statement. 7 "The process of demonstrating notification and information .
, 8 exchange with special care facilities will be evaluated by 9 FEMA in the Salem, New Hampshire staging area and in the NHY 10 ORO EOC."
11 The first point: It's a fact, is it not, that the 12 Salem, New Hampshire staging area is not the staging area 13 relied on in the SPMC, correct? 14 A (Donovan) That's correct. 15 Q That, in effect, this was a substitute staging ' 16 area, correct?
, 17 A (Donovan) I believe they used the term 18 " alternate", but --
19 Q Well, we have gone over this ground. Alternate 20 not in the sense that you have made any findings as to the
~
21 appropriateness -- . ! 22 A (Donovan) That's correct. 23 Q -- of that staging area, right? , 24 A (Donovan) Well, substitute, to me, constitutes f!5 more of a commitment that it is replacement site versus an Heritage Reporting Corporation (202) 628-4888 '
1 l l DONOVAN - CROSS 22409 i
/'~'N{ - - 1 alternate which was an alternate for the training purposes j d l'
~
-2 and for the purposes of.the exercise.- But I won't quibble f 3 on your use of the --
4 Q Which way do you come out if you don't quibble? ~ 5 A. '(Donovan) I don't know. 6 Q Have you made a finding as to the adequacy of the 7 Salem, New Hampshire staging area?
.. 8 A (Donovan) No , I've said that.
9 Q' Okay. So the first point here is that it's a-10 simulated or a substitute or alternative staging area. Then 11 if we continue, we find that the special care facilities and 12 nursing homes will be simulated with the use.of a New. 13 Hampshire Yankee control cell. [~') 14 Well, that means what? That you are going.to
~U 15 simulate contact and information gathering with the special 16 care facilities and nursing homes, right?
. 17 A (Donovan) That means when the calls would be
.18 placed out, they would be placed to a control cell rather 19 than placed to the actual nursing homes. Yes.
20 Q All right. 21 And then the next statement reads, " Contacts with
, 22 local officials in local EOCs will be simulated with the use 23 of the FEMA control cell."
24 Do you see that? 25 A (Donovan) Yes, I do.
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( Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 22410 1 Q Now contacts with local officials in local EOCs, ' 2 does this mean that you are going to be simulating through 3 the FEMA control cell, you simulate the local official and 4 then you simulate the local EOC in some fashion?
~
5 A (Donovan) Well, step back and look the response 6 organization for a second. 7 People are identified in the response organization 8 to make contacts with special facilities. In doing so, they 9 do two things. They provide them with the protective 10 action. If appropriate, they provide them with the status 11 of the emergency and they provide -- they offer assistance 12 and verify the transportation needs. 13 A separate set of players referred to as local 14 liaisons also contact, by the plan, local governments to 15 advise the local governments of what actions are being 16 taken. In this case the portion of the players identified . 17 as local liaisons, the sentence is saying instead of calling 18 the local governments, they will place calls to the FEMA 19 control cell which was the local governments for the purpose 20 of the exercise. 21 Q Well, just as a matter of record, there are no 22 local EOCs that were used during the exercise, correct? e 23 A (Donovan) That's right. 24 Q You simulated the -- 25 A (Donovan) I agree. Heritage Reporting Corporation (202) 628-4888 Ol
DONOVAN - CROSS 22411 1 Q Okay. -You simulated the local EOCs. You
?j ' 2 simulated --
r C 3 MR. FLYNN: You are talking about in 4 Massachusetts. 5 MR. TRAFICONTE: I'm sorry. We're talking about
.i 6 -Massachusetts now.
,. 7 BY MR. TRAFICONTE:
. 8 Q And with the FEMA. control cell, you simulated the 9 local officials in the towns, correct?
10 A (Donovata) That's correct. 11 Q And you simulated the special care facilities and 12 the nursing homes. 13 Now how much conjecture is there, Mr. Donovan -- 14 A (Donovan) Well, I suggest you turn to page 2.. It ( ,, 15 says -- 16- Q I didn't put the question yet.
. 17 A (Donovan) Oh.
18 MR. DIGNAN: I thought that was a complete 19 question; how much conjecture was there. 20 MR. TRAFICONTE: I was about to finish it.
, 12 1 MR. DIGNAN: Oh, the question mark hadn't come 22 down.
23 MR. TRAFICONTE: Maybe the question mark was 24 stuck. 25 ]
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r-DONOVAN - CROSS 22457 1 information and instructions on reentry, resettlement and 2 relocation," and then there is a column for "other". 3 All of those are the -- 4 Q What question number did you read from Objective 1 5 13? j
. )'
6 A (Donovan) It's on page 13-2. It's Question 6. 7 Q Now it's an accurate statement, isn't it, that . 8 FEMA review includes a review of the accuracy of the 9 protective action recommendations actually conveyed to the 10 public? 11 A (Donovan) I don't understand your question. 12 Q FF.MA is reviewing, is it not, pursuant to 13 Objective 13, the accuracy of the emergency information with 14 regard to the protective action being recommended to the 15 public? ! 16 A (Donovan) Accuracy in the context of the decision
, 17 that's been made. Is the decision being implemented in 18 accordance --is the EBS message implementing the decision of 19 the decisionmakers.
20 If I could use a hypothetical. If persons in 21 Towns A and B are told to evacuate, does the EBS message - 22 tell persons in Towns A and B to evacuate? 23 Q Yes. ; 24 A If it does not, then it is not accurstely 25 reflecting the decisions of the decisionmakers. Heritsge Reporting Corporation (202) 628-4888 i _ _ _ _ _ _ _ . - - - - - I
l I i DONOVAN - CROSS 22458 ] l 1 Q Yes. f} 2 Now, is FEMA also making the judgment that the 3 information that's conveyed to the public is clear pursuant 4 to Objective No. 13? 5 Using your hypothetical, Mr. Donovan, if 6 individuals in Towns A and B are told to evacuate, is FEMA 7 making the judgment that the message telling them to 8 evacuate is clear? 9 A (Donovan) We make a judgment by addressing the 10 issues that are contained in the list of review points that 11 I read in. 12 Is the landmarks defined? Is the evacuation 13 routes designated? Is the reception center locetions ['} 14 designated?
%_)
15 So in that regard that's how we address are the 16 relevant points contained in the EBS message.
, 17 Q Yes, I understand.
18 A (Donovan) And in doing so, we look to see if 19 there is a degree of clarity or specificity with regard to 20 how those things are described. 21 Q Now, there is that judgment made by you in this 22 case of whether or not there is sufficient clarity and 23 specificity, correct? 24 A (Donovan) Yes, but it is not a - you know, we 25 look at it in context of these issues. We don't look at it
, ,-m
(,) Heritage Reporting Corporation (202) 628-4888
l l DONOVAN - CP.OSS 22459 l I 1 in context onto itself. j 2 Q All right. Let me direct your attention again ! 3 then to page 215. And specifically, you will see the 4 narrative summary section. Specifically, the third full 5 paragraph there. And I will read a couple of sentences. , ) 6 " Message content was generally accurate, complete ! 7 and clear with one exception. One of the EBS messages was *
. 8 not consistent with actions and discussions of the staff. '
9 That is, OR0 EBS Message No. 2, released for broadcast at 10 1420 (and the corresponding news release six and seven) 11 advised that residents of Amesbury and Salisbury should 12 evacuate, stated that schools and communities being 13 evacuated would be evacuated, and stated that school ; 1 14 children in those towns were being held at school for later i 1 15 dismissal." , 16 Now, in every day English, isn't what EBS Message
, 17 2, isn't what it said to the people of Amesbury and 18 Salisbury with regard to the school children, at least, they 19 are both being evacuated and being sheltered at the same 20 time?
21 A (Donovan) First of all, let's make the correction ~ 22 that you and I know should be made so the Board can follow 23 it. 24 This message should be changed to read "EBS 25 Message No. 3". l 1 l Heritage Reporting Corporation (202) 628-4888 I l i - - - _ - - _ - _ - - 1
[ v i j' , DONOVAN - CROSS- 22460
#~'
/ 1 Q That's correct. That's absolutely right.
Q + 2' A (Donovan) And in the next paragraph down, it.
.3 should be changed to read " Message No. 3". That.was an 7 4 ^ t a:: 2 hat didn't get caught in our final rush to
_ i
- 5 procuction. That makes it consistent'with what you will 6 find on Table VII.
7 Q On page what?
,: 8 A (Donovan) I said on Table VII.
9 Q- , Table VII. 4 10 A'- (Donovan) Where we listed the messages. 'And , 111 Table VIII specifically lists the text of the EBS messages.. 12 .We didn't go into that earlier, but I wanted to draw the 13 Board's attention to the fact that this was an error, and 14 that-you and I had already discussed it was an error, and I 15 just wanted to. bring that to everyone's attention. 16 The message contain'ed-two statements, but the only.
, 17 way I know to build a perspective on why the statements 18 contained in that message were such is to go through the 19 dec!.sion prccess leading up to that message, if I may.
20 Q Before we do that, and perhaps that is more 21 appropriate on redirect, I just want*to ask you the question
. 22 in the first' instance whether it's your view that in essence 23 what the message is conveying tb the public, at least this 24 portion of the public, is that the school children in these 25 two towns are being evacuated and sheltered-at the same b Heritage Repr)rting Corporation l:(
(202) 628-4808
l DONOVAN - CROSS 22461 1 time. 2 Would you agree that that's a fair 1 3 characterization of what the message is saying? 4 A (Donovan) No, I wouldn't. 5 Q' You wouldn't agree with t t?
~
]
l 6 A (Donovan) No. 7 Q Well, let's --
, 8 A (Donovan) The message contains two paragraphs 9 that are visually separated by two other paragraphs. The 10 last paragraph is the one that addresses the issues of 11 sheltering. The message that talks about the children being 12 evacuated is far up. And if we can, we can go to Table VIII 13 and look at the specific text.
14 Q Why don't we do that. And it's on pages 82 and 83 , 15 where this particular message is summarized. 16 (Pause to locate pages.)
, 17 BY MR. TRAFICONTE:
18 Q Now on page 82 -- and this is characterized as a 19 synopsis, I understand that -- there is a .eference, is 20 there not, to what towns are being evacuated? 21 A (Donovan) Yes. 22 Q Yes. In fact, it's the four'ch paragraph under the - 23 synopsis. 24 " Massachusetts Governor recommends immediate 25 evacuation of Salisbury and Amesbury." , Heritage Reporting Corporation (202) 628-4888 ; 1 < . _ _ _ _ _ _ _ _ ___ J
l - DONOVAN -' CROSS '22462 O 31. So that was set forth in this message, correct? 2 A- (Donovan) . That's correct. And the public knows: 3 or has the opportunity to know through the public education 4 program that. if the towns are being evacuated, ti:r+ schools
'5 'are.beiEg evacuated simultaneously with the. towns. .(
7
., 8 9
10 11 12 13' f . 14 15 16
.. 17 18 19 20 21
. 22 23 24 25
( Heritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 22463 1 Q Yes. 2 And doesn't this message go on at some point to 3 state that the schools in the community would be evacuated? 4 A (Donovan) Yes. , 5 It would be the ninth paragraph down on that page. . 6 Q On that same page? 7 A (Donovan) Right. 8 Q "All schools within evacuation area are being 9 evacuated to designated reception centers for community ; 10 where located. Parents should not drive to schools. Kids 11 will be sent to host facility where they may be picked up." ! 12 Now, turn to the next page 83 and the fourth full 13 paragraph under the synopsis column on that page. And we're j 14 in the same message, are we not? l 15 A (Donovan) That's correct. l 16 Q In that portion of the message the public was told
. 17 that, " Parents with kids at school in Salisbury, Amesbury, 18 Newbury, West Newbury, and Newburyport advise that they are k
19 safely maintained at school where they will be kept until I 20 they can be safely moved. Parents urged not to attempt to 21 pick up kids." 22 Now again, now that we have reviewed the synopsis , 23 at least, would you agree with me that it's a fair 24 characterization of this message that as to the school 25 children in Amesbury and Salisbury the public is being told Heritage Reporting Corporation (202) 628-4888 L___ _
.i l
, DONOVAN'- CROSS 22464 1 that.they are being evacuat'ed and.being-sheltered at the 2 same-time?
. 3- A -(Donovan) I don't infer it that way. l r
.4 You must have snowiclosing'here. We have snow.
5' closing in Seattle. 6 Q' We used to have before the greenhouse --
.- 7 A (Donovan) Maybe not this winter.
3c 8 That I think a discerning parent would have heard ; i 9 that his children are going to be evacuated and'that they- ;
' 10 are being kept at school until they can be evacuated.. And I ,
- 11' would not'have'put it in the context that you just did, that i
~
12 there is a' conflict in the message that one part of the 13 message is telling me they are being evacuated; and the 14 other part of the message is telling me they are being .; 15 sheltered. Q" You would not have heard-it that way?
, 17 A (Donovan) : No, I would not.
18 -Q When this message was delivered during the 19 exercise you were at the EOC, were you not?
'20; A (Donovan) The ORO EOC.
. 21 Q The ORO EOC7 1 22 A (Donovan) Yes.
~
23 0 You heard the message, I take it; correct? 24 A (Donovan) I saw the message text as it was 25 approved. I l j'~ Heritage Reporting Corporation { t (202) 628-4888 i
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1 j l:
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DONOVAN - CROSS 22465 1 Q You saw the message text as approved. 2 Did you at that point identify some inconsistency 3 in that message? 4 A (Donovan) No. I thought there was a lack of 5 clarity. 6 Q Let's agree on what we're going to call this. 7 We'll call it a glitch, how is that. 8 You noted by review of the text that there was a 9 glitch, didn't you 10 A (Donovan) I believe I called it a lack of 11 claritv. 12 Q Well,.let's label -- since it's one word instead 13 of three, let's label " lack of clarity" " glitch." , 14 MR. DIGNAN: He called it a " lack of clarity." 15 MR. TRAFICONTE: Let's call it a " lack of 16 clarity."
, 17 (Laughter) 18 MR. TRAFICONTE: It being your birthday --
19 MR. DIGNAN: Just to keep the record in the 20 witness' terms and not yours. 21 MR. TRAFICONTE: Well, it would have become his 22 terms earlier. . 23 BY MR. TRAFICONTE: 24 Q You noted the lack of clarity and you took 25 actions, didn't you? Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22412
/ 1 BY MR. TRAFICONTE:
\ \ ) ?
\~/ But how much conjecture is there, Mr. Donovan, in 2 Q 3 your judgment, that this exercise adequately demonstrates 4 performance as to the exercise objectives connected to the 5 functional area described by this Extent of Play?
6 How much conjecture is there, in your judgment, in 7 light of the number of simulated events going on here?
, 8 A (Donovan) Well, I'll still say please turn to 9 page 2 of the attachment.
10 Q Yes, I anticipated you would. 11 A (Donovan) And Items 1 through 4 were factored in 12 before the sentences on this page that you just read from 13 were created. Only one of the 39 special care facilities t ) 14 was willing to participate in the ' 88 exercise. No nursing G No 15 homes were willing to participate in the '88 exercise. 16 local EOCs, no local governments were willing to 17 participating in the '88 exercise. 18 And as we said, we had agreed and we had discussed 19 that earlier, the fact that a substitute or an alternate, 20 whatever words you want to use, staging area for the 21 Haverhill, Massachusetts etaging area would be used in the
. 22 exercise.
23 Q Don't misunderstand my question, Mr. Donovan. I 24 understand the reason -- 25 A (Donovan) So, therefore, I'll try and answer your () Heritage Reporting Corporation (202) 628-4888
I' DONOVAN - CROSS 22413 1 1 question, j 2 If I can't have participation of the local l 3 governments, if I can't have participation of the nursing 4 homes, then the exercise documents, the process, and the 5 process covered by this objective of which this is just one
- q 6 subset of the objectives is, (a) the response organization 7 determines the status of the emergency; and based on that 8 status and reaching protective action recommendations and 9 getting protective action decisions out of the state, 10 conveys those decisions to the -- in this case both the 11 local governments and the affected special facilities and 12 offers those special facilities transportation assistance, 13 if required.
14 We have stated this before and I would like to 15 state it again. FEMA has found that special facilities, 16 hospitals and nursing homes as collective, take pride in 17 providing care to their clients and take steps to provide 18 their care. And we believe that they will implement actions 19 as they deem necessary based on appropriate notification and 20 guidance and guidance to implement those actions. 21 Q Yes, but just on -- 22 A (Donovan) So in this case, I made no more . 23 conjecture than I would have made if all of the conditions 24 had been removed, because we would have still witnessed the 25 same things. Telephone calls were made. Offers of Heritage Reporting Corporation < l 1 (202) 628-4888 1 l J
-DONOVAN - CROSS 22414 1 assistance were made. And then we went beyond that, because . f)j.
, "i 2 we required them to demonstrate the process for'getting 1 Q 3 assistance to certain subset of these facilities. 4 Q Let me.ask you to turn to Extent of Play No. 5 3.2.6. Now this is an Extent of Play that runs to the n c 6 functional area of transportation resources, correct?
. 7 A (Donovan) Transportation resources for-Objectives
. 8 18 and 19, yes.
9 Q So it's exercise objectives, and those are up in 10 the right-hand corner, are they not? 11 A (Donovan) Yes. 12 Q Now, did you make the determination that the 13 number of transportation resources that were identified in
'14 this Extent of Play were sufficient to demonstrate the- 'O
( 15 availability of the resources relied upon in the SPMC7 16 A (Donovan) You asked a question within a question,
, 17 and let me answer it in reverse.
11 8 _ The demonstration of actual resources to be
.19 deployed, mobilized and put in a mode where they could 20 demonstrate their ability to go from one location to another
.- 21 location, I felt that was adequate.
22 The second half of your question was is there 23 adequate resources to implement the plan. That's also part 24 of those objectives, and that is a different answer than, 25 you know, resources that are actually deployed. The Beritage Reporting Corporation O t (202) 628-4888 _ _ _ _ _ - - - - - _ _ _ _ - __ l
DONOVAN - CROSS 22415 1 resources that were deployed were a subset of the resources 2 that would have been required to implement the plan, if I 3 understood your question correctly. 4 And as this Extent of Play talks about, the first 5 process of mobilizing the response organization, they place 6 the actual call to the actual resource providers and went 7 through the process. l After the first calls were placed, when they went 8 9 to make the second calls to actually ask for resources to be 10 deployed, the calls were then deflected to only those 11 resource providers that were providing transportation. 12 The participants at the exercise had no idea how 13 many buses would actually be moved. They didn't know what 14 bus companies or what ambulance companies or what van 15 companies would provide vehicles. As far as they knew, j 1 16 every firm on their list would provide vehicles.
, 17 So when they made their first set of calls outs 18 verifying that you have an agreement with ORO and that you 19 have X number of vehicles available and, you know, how many 20 vehicles could you commit to us today, and that's their 21 first step of their mobilization process.
22 The second step is when they actually go to - 23 deployment mode, we see the need for vehicles. We're going 24 to move vehicles. And we're going to send you bus 25 dispatchers and bus route guides to go with these bus l i l l Heritage Reporting Corporation (202) 628-4888 l l
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'l DONOVAN - CROSS 22416 d 1
1 drivers. Then and only then did the players become aware
- )
'./ -
-(_,/- that only a subset of the responders were participating in 2
3' the exercise. 4 So I think - you know, to me, you asked a double 5 question, and to me, they provided -- what we saw in the 6 exercise provided us a base to answer both questions. They-7 had procedures to contact all of the resource providers in
., 8 their letters of agreement. They went through the steps to 9 verify the resources that would be available through these 10 normal letter of agreements. And when the decision was made 11 by the response organization after an agreement on the 12' protective action by the state, and they were moving to 13 implement that protective action, they then went back to a 14 subset, and only at that time did the players become aware 7-15 of what subset of responders -- resource providers would 16 actually be participating in the exercise.
, 17 JUDGE MCCOLLOM: So I understand that mechanism 18 here: was that preset, which ones were going to respond?
19 THE WITNESS: (Donovan) Yes, but only the 20 exercise director and the exercise team knew that. 21 BY MR. TRAFICONTE: 22 Q Well, the bus companies knew that too, didn't 23 they? 24 The ones who were going to respond knew they were 25 going to respond. Heritage Reporting Corporation t
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t DONOVAN - CROSS 22417 1 A (Donovan) Yes. But I mean in terms of the 2 players. 3 Q Well, on that point who does know about the 4 details of these agreements prior to the exercise? 5 - Who among the players and the control - 6 organization, who does know about that? 7 A (Donovan) To my knowledge, no player had access 8 to the material. It was kept with a controlled fashion, and 9 I purposely only had two sets, and we maintained the sets at 10 *amote locations. And the Extent of Plays weren't 11 finalized, some of them until the Saturday before the 12 exercise. 13 Q Does the control organization -- and l'm using 14 that in the way in which you have come to define it -- did 15 the control organization have possession of the Extent of I 16 Play agreements prior to the exercise?
. 17 A (Donovan) I can't answer that question, because I 18 didn't run the control organizations. But to my knowledge, 19 instead of having Extent of Play, as I alluded, thers is 20 specific exercise messages contained in the scenacio. So 21 the controller, for example -- the example I illustrated a 22 few minutes ago -- they would have stepped forth and say you ,
23 now call XYZ bus company and ask him to mobilize 10 buses. 24 He would have an exercise message. He wouldn't have the 25 Extent of Play. f Heritage Reporting Corporation (202) 628-4888 ' l
)
.l 1
DONOVAN - CROSS 22418 ) l 1 So the' controllers were being trained 'j j_ \- q .
\q_,/ 2 simultaneously to the-time that I was training'my 1
J evaluators; that is, the Sunday and Monday before the 4 exercise. So the controllers that were dispatched Tuesday l , 5: morninc,to be at various locations in the two st'ates and l l .. 6 with the offsite response organization, likewise controllers 7 at the onsite. response organization, they only had subsets
. 8 of the scenario that applied to their mission. And in this t
9 case those subsets were not Extent of Plays. They were 10 specific exercise messages. 11 Q Just on that point before we continue with-this-12 Extent of Play. I neglected to ask you a question 13 concerning the bus routes. je- 14 You at one point referred to controller k_s) 15 intervention.- Does that mean that the bus route or the bus driver made a mistake and the controller had to get him back
.. 17 on the right road?
. 18 What does that mean, controller intervention?
19 MR. DIGNAN: I'm going to object. We went through 20 that in detail with Mr. Backus. 21 MR. TRAFICONTE: Is that the case? 22 JUDGE SMITH: That is correct. 23 MR. TkAFICONTE: All right. 24 JUDGE SMITH: But courtesy requires that you tell 25 him what it is, and get on with it. Heritage Reporting Corporation A (202) 628-4888
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l l DONOVAN - CROSS 22419 I 1 MR. TRAFICONTE: Well, I can read the record. I 2 did not know that, and I haven't had an opportunity to 3 review Friday's transcript. 4 JUDGE SMITH: Well, the effect is that if the 5 controller had to intervene to enable the bus to complete . 6 the route, it's not credited as a completion. 7 Mr. Backus got the same objection because he was 8 covering ground covered by you. 9 (Laughter) 10 MR. TRAFICONTE: We must have split personalities 11 then, because I don't remember putting that -- 12 MR. DIGNAN: No, he got the same objection in i 13 different areas. 14 MR. TRAFICONTE: Oh, I see. 15 JUDGE SMITH: No, you made -- 16 MR. TRAFICONTE: Oh, I see, all right. 17 JUDGE SMITH: -- the objection on the opposite 18 side of the coin, on controller intervention when a function 19 is completed correctly. 20 BY MR. TRAFICONTE: 21 Q I would like to direct your attention to the 22 second page of this particular Extent of Play which is page , 23 2 of 14. 24 Do you have that? 25 A (Donovan) Yes, I do. Heritage Reporting Corporation (202) 628-4888 ______________________-_a
DONOVAN - CROSS 22420 7- . 1 Q Just a quick question on one of these constraints.
)
(_ ,/ 2 Do you see Constraint No. 3, the cost of leasing i 3 transportation resources? 4 Is that a legitimate constraint on the scope of
, 5 the exercise?
6 A (Donovan) Depends from whose perspective you ask 7 the question.
, 8 It wasn't a constraint from my perspective. I 9 wanted to a reasonable achievable demonstration. And to my 4
10 knowledge, none of the response organizations in the 11 exercise control group ever came back and said that that was 12 too ccatly. But it could have been. 13 Q I see.
,f-'g 14 A (Donovan) But to my knowledge, no one came back
\\_-) 15 and said, we can't do this because it cost too much money.
16 Q Well, I may have misunderstood this document then.
, 17 I had understood that if it's listed there as a constraint, 18 then it functioned as a constraint. And instead of eight, l 19 nine, ten bus companies, we're down to six. l 20 Is that an incorrect inference?
21 A (Donovan) Well, I would say that it's an 22 incorrect inference to assume that anything that's listed I 23 there was viable in our discussions and negotiations. 24 Q Oh, okay. 25 A (Donovan) It may have been. But if it was, I
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d ( DONOVAN - CROSS 22421 s 1 would.have to tell you on specific case which one was
\s / 2- ,
applicable from my perspective. 3 Like'I said,-if cost was applicable to their 4 perspective, I'm not aware of any' example where they said
. - 5 that this cost too much money.
6 Q All right, now I'm going to follow up with one
~[ 7 more question on this Extent of Play. If you will turn back
, 8 to the~first page and in the summary portion of the Extent 9 of Play agreement a couple of sentences ir, do you see the 10 statement, "All transportation resource providers will 11 -receive an initial notification. Actual response will be-
' 12 limited tolonly those precontract companies and personnel 13 -identified herein."
( ' 14 Do you see that? 15 A - (Donovan) Yes, I do. 16 Q Precontract means the companies that by prior
, 17 arrangement agreed to send buses during the exercise, 18 correct?
19 A (Donovan) That's correct. 20 Q What does it mean that the transportation
-21 resources provides were initially notified?
22 What does that mean? 23 A (Donovan) Well, I explained it just a couple 24 minutes ago. Again, each response organization, in this 25 case we're talking about the ORO, has agreement with Heritage Reporting Corporation I (202) 628-4888 _ --_ - _-_ _ - _ _ _ - _ _ _ _ _ _ _ _ _ _ - - -- _ x
1 ! I l ! DONOVAN - CROSS 22422 l l l 1 resource providers. So all of those resource providers that I 2 provide the resources indicated in Appendix M of the ORO 3 plan that says X buses, X vans, X wheelchair vans, X 4 ambulances, X tow truck companies, et cetera, they called 5 every one in there. They actually called the actual 6 resource provider. 7 And at that time the player had no knowledge how .
. 8 many times he would call these resource providers. His 9 first call is we're verifying that you have a contract with i
10 us to provide us resources, and our records indicate that ! 11 you could provide us up to X number of vehicles. 12 Q Was that the inquiry he put? 13 A (Donovan) Yes, I can read you the actual 14 statements. 15 Q Where would you read that from? 16 A (Donovan) Well, see, it's covered in the scenario
. 17 and I believe Volume 1 of the scenario. Pages 7 through 12 18 talks about notification -- well, that's special facility 19 populations.
20 Q Let me just interrupt you and make sure that I 21 have this document available to me. . 22 You are not in the Extent of the Play anymore? 23 A (Donovan) No. I'm in a scenario -- again, there 24 are exercise messages in the scenario. The very first calls 25 to the resource providers, there is no exercise messages in Heritage Reporting Corporation (202) 628-4888 - _ _ _ _ . _ _ _ _ _ 1
DONOVAN - CROSS 22423 1 the scenario. It's go.to your plan, demonstrate to us the 1
- f. '2: ' process that you identify, and get commitments from resource
-( .N J 3 providers that X resources are available.
L 4 Q Let's stop there because that's the inquiry I want 5 to make. We may not have to get to Volume 1 of the 6 scenario.
.,, 7 Did they inquire of the resource providers
, 8 contracted -- did they inquire of all the transportation 9 providers how many buses, for example, wheelchair' vans, et 10 cetera, would be available right now as of 9:00 a.m., June 11 27, 1988?
12 A (Donovan) In some cases, they did. In some case, 13 they didn't. It depends -- 14 Q What did it depend on? ( _,/ 15 A' (Donovan) Well, I suppose it depended on who 16 picked up the phone at the other end of the telephone call.
, 17 In some cases, we observed that the resource providers 18 quickly said, yes, we have X vehicles. In other cases, they 19 didn't.
20 The first call, again, is not the hard commitment
, 21 call for resources. We have had an alert. We are at a site 22 area emergency. We may be asking you to provide us 23 resources per your letter of agreement with us.
24 Q That's the first call. 25 A (Donovan) Right. Heritage Reporting Corporation ( (202) 628-4888 1 i 1__1.1_______ . _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ _
I f DONOVAN - CROSS 22424 1 Q Let me just telegraph, come right out with it and 2 just tell you what I want to make sure one way or the other. 3 Was the purpose of this exercise to this extent, 4 to ca.11 every one of these companies and at that moment j 5 deteJmine what thef.r bus availability was, and then compare - 6 the bus availability as of that moment with what the plan 7 assumes or is counting on these companies to be capable of
, 8 producing?
9 A (Donovan) That was not the purpose. 10 Q Was it a purpose? 11 A (Donovan) A purpose. In the message that I have 12 that's out, they were given a prescripted -- following their 13 procedures, they were said, instead of using the message in 14 your procedure, use this message. And it reads: Hello, i 15 May I talk to blank of Company blank. And this is so and so 16 from, in this case, ORO. We are conducting a drill of the
, 17 Seabrook plan today. Are you participating in this drill.
18 And then it says: Would you provide me your 19 current inventory of vehicles and drivers available had 20 there actually been an emergency today? 21 And in most cases, they got anstiers. And later on 22 they got a separate set of answers from the control , 23 organization that they used to play the rest of the 24 exercise. 25 Q No, I understand the rest of the exercise. It's l Heritage Reporting Corporation (202) 628-4888 l 1
DONOVAN - CROSS 22425 l. 1 this component part that I'm inquiring about.
) 12 Nowhere in your exercise report do you state what 3 the numbers were that came back, do you?
l 4. A (Donovan) No, I don't. 5 Q, Did they find, and again we're focusing on only. 6 this part of the exercise, did they find that as of that.
'~
7 point in time when they made these calls that.the contracted c 8 companies did have available buses and drivers available to 9 them? 10 A (Donovan) Yes, they-did. j 11 Q Do you remember, did they just have enough? Did 12 :they.go well over? 13 A- (Donovan) Well, I tried to explain what happened. 14 Maybe.they make a second call. We now really need O 15 resources. Jmd at that time the controller said, you call-16 these organizations and ask them for these resources. And'
. 17 then they were told to call a control cell to call the rest of the organizations. And at that kime the control cell 19 gave them numbers. So whatever numbers they collected on 20 the first set of phone calls got overwritten by the second
- 21 set of numbers that they collected from the actual resource 22 providers in the control cell.
23 Q For the purposes of these questions, Mr. Donovan, 24 put out of your mind whatever happened after they contacted , 25 the companies that by prearrangement had already agreed to O Heritage Reporting Corporation (202) 628-4888 _ __ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ n
l i l
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DONOVAN - CROSS 22426 1 provide buses for the exercise. Put that out of your mind. 2 And equally put out of your mind whatever numbers they 3 heard from the FEMA control cell. Whatever purposes those 4 aspects of the drill served are irrelevant for my present 5 questio&. - e 1 6 My question has to do with the fact that the i 7 exercise was also designed to actually find out, in a kind 8 of snapshot fashion, find out how many buses were in fact 9 available on that given morning through the transportation i 10 resources that the SPMC has contracts. 11 And what I'm inquiring about ia I would like to 12 know what the result of that aspect of the exercise was. 13 A (Donovan) Well, I don't know if I would agree 14 with your initial premise. We had taken a step in our plan 15 review to verify the resources in the exercise. In this l 16 case we wanted them to make the actual calls to verify that !
. 17 the plan had the correct phone numbers and the correct l I
18 arrangements. And from that point forward, I wasn't l 19 conducting a plan review. I was looking at the responses
]
20 and their use of resources and their allocation of resources
. \
21 from a subset. l l 22 Q Well, I appreciate that, and I understand that you . 23 would now interpret this inquiry that I am putting to you as 24 more of a plan review item than an exercise review item. , l 25 A (Donovan) Yes, I would. Heritage Reporting Corporation (202) 628-4888
1
)
I '- DONOVAN - CROSS 22427 [
\~/
1 JUDGE SMITH: Mr. Traficonte, if you have a I L 2 logical place to break we will take a 15 minute break. 3 SE. TRAFICONTE: Can we break in about three more 4 4 minutes. I will be at a break point. 5 JUDGE SMITH: All right. 6 BY MR. TRAFICONTE: 1 7 y Now, Mr. Donovan, I would like to ask you some
,- 8 questions about the New Hampshire exercise and the extent to l
9 which you verified the capacity of the response organization 10 to staff TCPs and ACPs. 11 Did the State of New Hampshire or did they during 12 the exercise mobilize any state troopers who.were not from i 13 Troop A7
/ 14 A (Donovan) First of all, you're talking about H
\
15 objective 20, to allow the Board to get in the frame of 16 reference. Objective 20 is on page 182.
., 17 Q The other way to get into it is look at the Extent 18 of Play Agreement which ic '. 3.9.
19 Now let me put the question again. 20 Did the State of New Hampshire make'use of any 21 state troopers who were not from Troop A?
, 22 A (Donovan) At access control points?
23 Q At TCPs and ACPs; yes? 24 A (Donovan) I don't believe so. 25 Q Now, isn't it a fact that in the '86 exercise it Heritage Reporting Corporatio,.. (202) 628-4888 _ = - _ - _ - _ _ _ _ -_- .
l l l DONOVAN - CROSS 22428 l 1 was a deficiency -- the resources available to Troop A for 2 staffing ACPs and TCPs were found to be deficient? 3 A (Donovan) Yes. We visited that page earlier 4 today I believe in the verification of corrective actions.
]
5 Q Yes, I thought we had. . 6 I'm searching for the page reference. ! 7 A (Donovan) Page B-4 I believe.
, 8 MR. TRAFICONTE: If I could just have a minute, 9 Your Honor.
10 (Pause) 11 BY MR. TRAFICONTE: 12 Q Yes. It's page B-33. 13 Now, in '86 FEMA found a deficiency with regard to 14 the adequacy of the staffing available to Troop A; correct? 15 A (Donovan) Well, the words read differently. It
]
16 said that State Police Troop A did not have sufficient 1
, 17 resources to staff all of the positions called for in the 18 plan.
19 Q All right, that's fair enough. 20 And it was one of the purposes of the ' 88 21 exercise, was it not, to verify the corrective actions taken 22 to satisfy that deficiency; right? 23 A (Donovan) That's correct. 24 Q Now, do you believe that has been demonstrated by l j 25 the ' 88 exercise? i l Heritage Reporting Corporation (202) 628-4888 _________a
_7 DONOVAN - CROSS 22429
~/N 1 A (Donovan) Yes, it was.
2 Q Can you harmonize that judgment or that view with 3' the fact that there were no personnel other than Troop A, 4 personnel actually mobilized? 5 MR. FLYNN: Objection, this is the came issue we 6 have been over and over again. 7 One of the things that happened between ' 86 and-
. 8 '88 the. plan was changed. The exercise in '88 exercised a 9 different plan. The issue was the same. The objective was 10 the same. But the plan was different. The scenario was 11 different. The Extent of Play was different. They are not 12 directly comparable. The witness has said that several 13 times.
r t 14 MR. TRAFICONTE: In response I would point out
\
15 that Troop A was found not to have sufficient personnel. 16 There was a modification of the plan. Apparently, they
. 17 relied on non-Troop A personnel.,
18 And yet, the ' 88 exercise did not mobilize any 19 non-Troop A personnel. 20 And I would like to inquire in what why there was 21 sufficient scope of the exercise in that particular.
. 22 JUDGE SMITH: I don't understand.
23 I can't relate what you said to what was actually 24 observed. 25 What was your response? o 1. re1., c.r (202) 628-4888
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DONOVAN - CROSS 22430
'l MR. TRAFICONTE: Let me put it again, s 2 What I'm trying to establish is that there was a 3 deficiency in '86 regarding the resources -- personnel 4 resources available to Troop A. 1 5 JUDGE SMITH: And yet,, the same objection is made 6 that different standards, different Extent of Play, ,
i 7 different -- -
> 8 MR. TRAFICONTE: Well, no question a different 9 Extent of Play. But I'm probing on the nature -- what I'm 10 testing here is that the Extent of Play that they used and 11 agreed to didn't sufficiently test whether this deficiency 12 had been corrected or not, because they still haven't 13 mobilized a non-Troop A individual.
14 JUDGE SMITH: They still haven' ' or have? 15 MR. TRAFICONTE: Have not. l 16 JUDGE SMITH: That's not what I read, though. 17 MR. TRAFICONTE: That was an answer to a previous 18 question, Your Honor. I asked him point blank, did they 19 mobilize any non-Troop -- 20 MR. DIGNAN: Look at the third column of the page 21 you're referencing. , j 22 JUDGE SMITH: That's what has got me off.
. \
23 MR. DIGNAN: Look at the objective 20 as it is ) 24 written up. I'm looking at it and it says: "A total of at 25 least 100 troopers from Troop A and elsewhere were i Heritage Reporting Corporation (202) 628-4888 l _ _ - - - - . - - _ l'
l 1 DONOVAN - CROSS 22431
.l 1 arranged."
'N,_/ -
2 MR. TRAFICONTE: Well, we can inquire further. 3 MR. DIGNAN: "Is arranged" doesn't mean mobilized. 4 MR. TRAFICONTE: Yes, apparently it does not. 5 JUDGE SMITH: I understand. 6 MR. DIGNAN: Now I understand. j 7 BY MR. TRAFICONTE: 8 Q Let me ask you that question directly, Mr, 9 Donovan.
\
10 Do you see there on page B-33 it says: "A total of 11 at least 100 troopers from Troop A and elsewhere were 12 arranged." 13 A (Donovan) That's correct. i 14 Q And yet, the Extent of Play limits mobilization to s 15 troopers from Troop A; correct? 16 A (Donovan) Does not. On page two of four, item
, 17 No. 3 says: " Command and control decisions on TCP/ACP points 18 required by the scenario and the staffing of these points 19 will be evaluated by FEMA evaluators located at the state 20 EOC, NHSP" which stands for New Hampshire State Police, 21 " Troop A and local EOCs."
22 Q Troop A, that's what I just asked you. They 23 mobilized and checked the staffing supplied by Troop A, 24 didn't they? 25 A (Donovan) They did not. (
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l1 I DONOVAN - CROSS 22432 1 Q Can you point me to where either in your report or 2 in this Extent of Play the individuals -- the other troopers 3 who were mobilized or identified? 4 1 4 A (Donovan) You asked me a separate question. You ] 1 5 said, did they identify sufficient resources?
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6 His Honor pointed out on page B-33 says that they j 4 7 demonstrated the functionality to arrange for provisions of - 8 troopers. It's written on page 139 and 140 of exercise 9 report: "New Hampshire State Police Troop A demonstrated the 10 ability to mobilize and activate personnel for facility and
]
11 field operations. Key personnel such as communication, 12 shift supervisor, and shift commander were knowledgeable of 13 their duties and were able to obtain a current roster of 14 state police from Troop A as well as from other New 15 Hampshire police troops. It should be noted that Troop A is 16 staffed 24-hours a day and this exercise was conducted by
, 17 Troop A in an excellent manner."
18 They got rosters from the state police liaison at 19 the EOC by name, by badge number, by car, and by car signal ' 20 sign. And every time that they identified the need for i 21 additional troopers to staff positions, the state was able - 22 to commit by trooper name, vehicle number, and an ETA as to j 23 what time and what provisions and what steps and what 24 officers would be arriving. 25 And it was also discussed under objective 20, Heritage Reporting Corporation 1 (202) 628-4888 I
DONOVAN - CROSS 22433
,.: - ' 1 which is on page 182 that talked about the arrangements. !
2 Well, in this case the arrangements mean that people are 3 identified by name.and whether they were.on active duty or 4 whether they were on shift or in a training status.
.~ 5 The state police at the state EOC provided 6 manpower or personpower rosters by name, badge number, by 7 car number, and ETAs as to how soon they could be in the
, 8 vicinity of the plume EPZ to be deployed to an actual-9 ACP/TCP.
10 I repeat, this is one of these functions, in this 11 case, the responders are involved in traffic management on a 12 daily basis. And we took a subset of those responders to 13 see that they had awareness. We had Inviewed the training 14 records before the exercise and verified that all of the
>O 15 state police had been exposed to the traffic management 16 manual. And the potential assignments they might have if- . 17 they go to support Troop A in implementing the state's 18- responsibilities for staffing TCPs and ACPs.
19 MR. "AAFICONTE: We can break, this is not a bad 20 point. 21 JUDGE SMITH: Ten minutes. 22 (Whereupon, a recess was taken.) , 23 24
'25 1
l Heritage Reporting Corporation , (202) 628-4888 1
i DOMOVAN - CROSS 22434 1 JUDGE SMITH: We're on the record. 2 I have a preliminary matter. < 3 I want to report some ex parte communications to 4 the Commission. I became aware partly through news accounts 5 that the Commission's previous memorandum to the Board 6 extrapolating the date for the initial decision in this case 7 September 30th, was somehow being relied upon by the - 8 Commission. In fact, I believe that the Chairman was quoted 9 as saying that is a date that was material. And I 10 understand that the Court of Appeals has been informed that 11 is the best date to expect an initial decision for full-12 power licensing. 13 I no longer think that is a realistic date. So I 14 asked Mr. Aloot, our legal counsel, to inform the general 15 counsel that we will be sending up in due course, as soon as 16 we have better information, a better date. , 17 Well, Ms. Nordlinger, who is the general counsel 18 responsible for this case, believes that it is necessary to 19 inform the Court of Appeals that their representation to the 20 Court that September 30th was the best date for initial 21 decision is no longer the case in light of our informal - 22 communication. 23 I informed her that my estimate, without 24 consulting with the parties, which we will do soon as the 25 end of the record approaches, my best estimate right now is Heritage Reporting Corporation 1 (202) 628-4888
DONOVAN - CROSS 22435 1 that that date should slip from 30 to 60 days, that being 2 something like October 30th to November 30th. But that is 3 still an uncertain date and is not necessarily that much 4 slippage. 5 And that's what she will do. We will fax thi< 6 part of the transcript to her to provide to the Court.
. 7 I explained that the best date for the close of
, 8 the record will be June 30th. At that time we will consult 9 with the parties as to the schedul'e for filing of proposed 10 findings. When that schedule is understood, then we can 11 have a more reliable date.
12 Mr. Traficonte? 13 MR. DIGNAN: Your Honor, could I just take a 14 moment to introduce to the Board, sitting to my left Ms. 15 Ellen Page. She is a second year student at the University 16 of North Carolina Law School who is with our office for the
, 17 summer and will be doing some work in this case. And I 18 simply wanted to introduce her to Your Honor and seek 19 permission that she could be at the ;ounsel table from time-20 to-time with us. . 21 JUDGE SMITH: Certainly, you are very welcome.
22 MS. GREER: Your Honor, there's one other 23 preliminary matter I would like to raise with the Board 24 which is in connection with the schedule testimony next week 25 of Arthur Lonergan and the hospital personnel. Heritage Reporting Corporation O (202) 628-4888
l DONOVAN - CROSS 22436 l 1 You may recall that last week I applied to the i l 2 Board for subpoenas in connection with the hospital ) l 3 personnel. And Mr. Dignan apparently, or his associates j I 4 apparen-ly, in light of that, did not file a motion to j l 5 strike %:eir testimory on the basis of hearsay.
- j I
6 However, in light of the Board's rulings this 7 morning on the double hearsay issue I have activated those-
, 8 subpoenas. And let me just put on the record why.
9 This morning after leaving here I went ba"c and 10 read the transcript that came down in connection with the ) I 11 exclusion from the record of the Barnicle testimony. At 12 that time, the Board on its own raised the issue -- what the 13 Board characterize as the inherent reliability of testimony 14 that was put together in the way the Barnicle testimony was. 15 And the Lonergan testimony was put together in the !. l 16 identical way. And in light of the Board's rulings this
, 17 morning on the double hearsay issue I have activated the l 18 I subpoenas and asked a constable to serve those. '
19 Mr. Dignan told me during the break that the l 20 Applicants don't have any objection on the grounds of l 21 hearsay -- tell me if I'm mischaracterizing this -- but I'm 22 not sure t. hat when they initially failed to file their . 23 motion they realized that we were dealing with a double 24 hearsay issue. 25 In light of the Board's rulings I felt compelled Heritage Reporting Corporation (202) 628-4888 '
p DONOVAN - CROSS 22437 I I to'. activate it and I thought I should bring it to the
/D
( ) 2 . Board's attention. 3 MR. DIGNAN:- The reason this (:ame is this: first 4 of all, what we are prepared to do is stipulate in the 5 Lonergan testimony insofar as it covers two Sisters.
'6 As the Board knows there is a motion outstanding y 7 insofar as it covers the doctor.
>. 8 And I don't see'any reason to drag the Nuns in 9 here. But I confess I don't understand because I assume if 10 the testimony goes in by stipulation the Board's concern
- 11. about reliability.goes out the window. The Board doesn't 12 get into the question of whether the testimony is reliable 13 if both parties have stipulated to its admission.
.14- But I can't help more than that. I'm prepared to 15 stipulate to the Lonergan testimony admission, but if
'16 nevertheless the Commonwealth feels compelled to bring the
. 17 good Nuns to Court I guess there is nothing we can do about 18 it.
19 JUDGE SMITH: I'm sorry. As I understand the 20 situation now is, you were prepared to have an adverse
. 21 ruling on the Lonergan testimony. In anticipation of that 22 you sought and received subpoenas for the Nuns and the
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23 physician, doctor. 24 Now what has happened since then? 25 MR. DIGNAN: I think the outset is perhaps wrong.
.T Heritage Reporting Corporation I (202) 628-4888 l
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DONOVAN - CROSS 22438 1 When this all got started we had prepared and
, 2 ready to go a motion in limine which would have sought to 3 strike the entire Lonergan testimony. It would have sought 4 to strike it all on the basis of hearsay, double hearsay, 5 and whatever. And it would have sought to strike so much of -
6 it as it deals with Dr., I believe the name is, Pelle 7 because of a ground that it is beyond the scope of the
, 8 contentions that have been admitted.
9 Since that time, when we had that motion ready to 10 go, when we first discussed it in the hearing room, we went 11 back and reassessed what was in the Lonergan testimony and 12 reached a decision. As I said, I would try to. And this 13 was after it had been indicated that everybody was going to 14 be subpoenaed. 15 JUDGE SMITH: That's when they trumped you with 16 the Nuns.
, 17 (Laughter . )
18 MR. DIGNAN: It's a dangerous game to assume where l 19 all the trumps are. l l 20 (Laughter.) l 21 But the point is, at that point we went back and I 22 looked at it and said we can live with and stipulate in the , 23 Lonergan testimony. In other words, not make a hearsay l 24 objection insofar as the Nuns are concerned. With respect 25 to the good doctor, however, we were going to continue so Heritage Reporting Corporation i (202) 628-4888 ' { l L _
DONOVAN - CROSS 22439 1 much of the motion as had not gone to hearsay but it had
/-
( ) 2 gone to the substantive thing. s_/ 3 So I thought that took care of it. Lonergan would 4 be okay and we would stipulate that testimony in. We don't 5 have any questions on cross. But possibly the Staff does,
~.
6 but I don't know.
. 7 And the fight would be over whether Dr. Pelle's
, 8 section got in as a matter of relevance.
9 And then I now learned, as I say, that they're 10 reactivating the subpoenas. And I understand that the 11 reactivation is on the basis of a concerned raised by the 12 Board's rulings as to the inherent unreliability of certain 13 of the hearsay testimony that has been offered. 14 But my only point which I brought up to counsel 7
/ \ ] 15 for the Commonwealth --
16 JUDGE SMITH: Oh, I see. Just ordinary, inherent,
, 17 unreliability as to weight even if you don't object.
18 MR. DIGNAN: Yes. 19 And I said to counsel for the Commonwealth, well, 20 before you drag the Nuns in here you might want to inquire
. 21 of everybody. But it has always been my understanding, if 22 we don't object and we stipulate the testimony in, the 23 rell' ability question goes away. The Board doesn't have a 24 reliability question before it.
25 JUDGE SMITH: That's right. We would accept that f r~~N Heritage Reporting Corporation j)( - (202) 628-4888
DONOVAN - CROSS 22440 1 stipulation as being credible. 2 MR. DIGNAN: Right. < 3 JUDGE SMITH: I mean, as facts. It wouldn't be a a 4 stipulation if they came and would testify as such. It 5 would be a stipulation that these are the facts, the - 6 operating facts of the case. 7 MS. GREER: Just so the Board is actually clear as 8 to the way this testimony was put together, because it is 9 identical to the way that the Barnicle testimony was 10 previously put together. 11 Ms. Barnicle, who has since left the Attorney 1 12 General's office, was the investigator who initially
]
13 interviewed Sister Paula, Sister Doris, and Dr. Felle. She 14 then took and wrote up statements that she had extracted 15 from her interviews. I 16 She then left the office, and Arthur Lonergan was ] . 17 then assigned to the file. Arthur Lonergan then took those 18 statements previously written up and called up the three 19 witnesses and said to them, are these your statements? 20 Since this is in fact identical to the procedure 21 that was previously found to be inherently unreliable by the 22 Board, I obviously, have concerns about the Board's view of , 23 it at this point. And particularly in light of the fact 24 that the Board's ruling this morning with respect to the 25 Paolillo testimony, again on the hearsay, double hearsay Heritage heporting Corporation (202) 628-4888
DONOVAN - CROSS 22441 t A ; 1 grounds. L 'w / 2 And in light of that fact I did activate it, and 3 that's why I'm raising to the Board's attention now. Now, 4 the Board can do whatever it wants to with it. But unless 5 -- if the Board is going to rule that they will accept the 6 testimony and credit it for full weight it would normally be ,
. l 7 given, as if they were here testifying and swearing to it
, 8 themselves --
9 JUDGE SMITH: Well, whose testimony is going to be i 10 stipulated? It's going to be stipulated that the Huns will ] 11 testify -- 12 MS. GREER: To the statements. 13 JUDGE SMITH: -- to the statements attributed to
,/'~'N, 14 them by Paolillo, if called.
( / l 15 MS. GREER: By Lonergan. 16 JUDGE SMITH: By Lonergan, if called, and that 17 there will be no cross-examination and no issue is raised as 18 to their credibility and accuracy. Is that the stipulation? l 19 Or is it going to be stipulated that such and such are the 20 facts? 21 MR. DIGNAN: I'll tell you, Judge, I haven't got 1 22 this sophisticated. Let me put it candidly on the table 23 with you. I went back and I looked at what Lonergan said 24 the Sister said, and to be perfectly truthfully with you, I 25 don't care whether they said it to him or not, it doesn't l p) ( Heritage Reporting Corporation
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I i DONOVAN - CROSS 22442 1 hurt me. So I said, why not save the Sisters a trip to the 2 courthouse. So that's as far as I got on this very deep 3 analysis. 4 Now, Your Honor, is taking me far beyond that as 5 you usually do with your insight. To me it's the old, - 6 what's your objection, Mr. Dignan. It's hurts, Judge. 7 Well, it's one of those analyses. It didn't hurt, so I 8 didn't object. 9 (Laughter) 10 JUDGE SMITH: Let's leave it this way: if Mr. 11 Dignan stipulates that the Nuns would have testified, had 12 they come here, to whatever it is they would testify to, I 13 think that you don't have to worry about the Board 14 challenging the credibility of what they would have 15 testified to. 16 I don't know what yeu want, really?
, 17 MS. GREER: Frankly, I don't really want anything.
18 I just thought -- 19 JUDGE SMITH: We don't bargain. I can't bargain 20 with you. 21 (Laughter) 22 JUDGE SMITH: I think what you want is, you want a , 23 pretty good stipulation right now or you want those Nuns j 24 here; is that what you want? I 25 MS. GREER: The Nuns are coming unless -- , l l Heritage Reporting Corporation i (202) 628-4888 l I l _m
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, DONOVAN - CROSS 22443
,e 1 JUDGE SMITH: You get a pretty good stipulation, U 2 one you're satisfied with, otherwise you've got the 3 .-subpoena.
4 MS. GREER: Fine. 5 MR. DIGNAN: Before we go any further. You had 6 produced certain notes? 7 MS. GREER: Yes. 8 MF. DIGNAN: Are those Barnicle's or Lonergan's? 9 MS. GREER: Those are Barnicle's. 10 MR. DIGNAN: Oh, they weren't Lonergan's? 11 MS. GREER: No , I told Trout that. 12 BY MR. TRAFICONTE: 13 Q Before I move on, Mr. Donovan, to some questions
' ~ '
14 concerning schools, I would like to just back track very 15 briefly and clarify something. 16 Could you turn to page 165 of your report.
, 17 (Pause) 18 19 20 21 22 23 24 i' 25 Heritage Reporting Corporation
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DONOVAN - CROSS 22444 1 Q Do you see the chart that appears there as to j 2 buses and other transportation resources, number required, 3 number available? j 4 Do you see that? i l 5 A (Donovan) Yes, I do. 6 Q Where did the information in the second column 7 come from? . 8 A (Donovan) The discussion we had a little while 9 ago indicated that after the first set of calls was made to 10 the resource providers identified in the letters of 11 agreement, the second set -- when they went to make the 12 second set of calls -- they were told to call a subset from 13 the first set of calls. And these resource providers, and 14 they said at that time, please mobilize X number of 15 vehicles. 16 For the remainder of the calls to the resource
. 17 provides, they were told to call a control cell. And the 18 control cell, based on the letters of agreement that existed 19 and based on the numbers identified in the letters of 20 agreement, gave them answers. But they got answers over a 21 period of time, and it wasn't, you know, one time answer. .
22 They had to keep calling to verifying different sets of 23 resources just like they would have in a real emergency. 24 Q I think I understand. 25 Does that mean that the column of number headed Heritage Reporting Corporation (202) 628-4888
---- ----__lu
t . -F DONOVAN - CROSS 22445 1- " number available" is information that the callers received j%
.; 2 from the NH7' control _ cell?
\~-l 3 A (Donovan) That's correct.
4 Q So it doesn't reflect real vorld time of the 5- emergency availability?
"~
n 6 A (Donovan) No, i t reflects scenario time, scenario y 7 world availability.
, 8 0 All right.
- 9. A (Donovan) But the availability springs from the 10 original letter of agreements.
11 Q That, I understand, as we discussed maybe an hour 12 ago, had to do with the plan, in your mind is part of the 13 plan review process? 14 A (Donovan) Yes.
/~'N.
() 15 Q All right. 16 The State'of New Hampshire mobilized 20 buses, did
, - 17 it not?
18 A (Donovan) I believe that's correct. 19 Q Do you have -- well, maybe you might have to refer 20 to the Extent of Play agreements. Some of these buses were
. 21 mobilized and performed their function within the scenario 22 time, and others did not, correct?
23 A (Donovan) No, that's not correct. 24 We had buses, wheelchair vans and an ambulance 25 that were deployed during the exercise. Some of the buses l l C Heritage Reporting Corporation l (202) 628-4888
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i { i l i 1 DONOVAN - CROSS 22446
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1 were redeployed after they had completed their first 2 assignment. But on day one, the exercise vehicles were the k 3 buses, the vans. And on day two, when we called for a 4 demonstration of additional routes, on day two, they used 5 personal vehicles or rental vehicles, cars. - 6 Does that answer your question? 7 Q Not specifically, because the question was more 8 focused on when these bus routes were performed in the 9 scenario time and when they were not. Perhaps that was that 10 the intent of your answer but I -- 11 A (Donovan) Well, that's what I was trying to 12 answer. But all of the vehicles -- 13 0 In day one. 34 Q -- were demonstrated on day one. 15 Q With.4.n the scenario time? 16 A (Donovan) Yes. 17 Some of the vehicles made a complete loop. They 18 went from the state staging area to a local staging area to 19 whatever their end destination be it school, day care 20 center, nursery or bospital, to the reception center. In
~
21 some cases to the host nursing home or hospital. Then they 22 went back to the state staging area and were redeployed. ,
'i ,
We had vehicles on the road almost until midnight, 24 depending on where you were in the exercise and what 25 response organization you were in. Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ - - - - . - - _ - - - - - - - - - - n
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)
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. DONOVAN - CROSS 22447
. [~'} l 'But on day one, we used resource provider vehicles
- V- 2 in New Hampshire. On day two, from the emergency driving 3, pool as is defined in the plan, we used either their 4 vehicles or rental vehicles that were provided for them.
~
5 0 I would like to direct your attention. if I might,. 6 Mr. Donovan, to page 215 of your report. And specifically.
.s 7 to the narrative summary section that follows Objective No.
a 8 73. 9 Now, Objective 13 is a requirement that the 10 exercise demonstrate the response organization's ability _to 11 coordinate the formulation and dissemination of accurate 12 -information and instructions to the public in a timely 13 fashion. 14 MR. DIGNAN: I'm sorry, Mr. Traficc.ae, what page ' \ 15 were you -- 16 MR. TRAFICONTE: Page 215. c 17 MR. DIGNAN: Thank you. 18 BY MR. TRAFICONTE: 19 Q Now let'me ask you some general questions about 20 this objective before we turn to the specifics of 21 performance here.
. 22 You are called upon to make a judgment, are you 23 ne t, as to the accuracy and timeliness of the information 24 mats available to the public?
25 A (Donovan) That's correct. .
?
-t Heritage Reporting Corporation (202) 628-4888
l I DONOVAN - CROSS 22448 1 Q This question is going to no doubt sound very 2 familiar to you. 3 Has FEMA provided any guidance as to the 4 parameters for that judgment, the standards for that 5 judgment for tb4.s specific objective? - I 6 A (Donovan) As to which? 7 Q Well, let's take -- i 8 A (Donovan) -- the timeliness. 9 Q Let's take the timeliness first. 10 A (Donovan) Basically in Guidance Memorandum AN-1, 11 it defines the time frame from the point that the decision 12 should be made before the alert notification system is 13 sounded. And in that regard, there is a time frame that's 14 defined for standard purposes of 15 minutes. 15 Q Other than the 15-minute requirement for 16 notification, is there any other clear statement by FEMA as , 17 to;, for example, the timeliness between the time that you 18 make a protective action recommendation or decision and when 19 it should be broadcast over the EBS? 20 A (Donovan) I just gave you *he answer to that, 21 approximately. 22 Q In every instance it should be 15 minutes? , 23 A (Donovan) Well, the guidance memorandum says we 24 should have one time test, and then we could waive the 25 timing of future tests. But as a general rule if you ask Heritage Reporting Corporation (202) 628-4888 64 '
DONOVAN - CROSS 22449 1 for a standard, we would use the 15 minutes as an L/
) 2 approximation of a standard.
3 The way the guidance memorandum is written, it 4 says that we could agree ahead of time that we would have 5 one test that we would time, and the other times that we 6 would not. For the purposes of this exercise, there was no
.. 7 such agreement. So we looked to them to make or meet, if
, 8 you want to use those words, approximately the 15-minute 9 standard of each of E.e plume pathway emergency broadcast 10 messages.
11 Q All right. In each instance. So not just the 12 first time, but in every case where there is a protective 13 action recommendation you are going to apply a 15-minute 14 clock.
/ \
( ) 15 A- (Donovan) In general terms. 16 Q In general.
, 17 A (Donovan) Right.
18 Q And just so we are clear and the record is clear, 19 when do you start the 15 minutes? 20 A (Donovan) From tha time the decision is made.
. 21 Q And in this case that would be a decision made by 22 the -- we're talking about ORO, so we're talking about a 23 decision made by the Commonwealth of Massachusetts?
24 A (Donovan) Played by the FEMA control cell, yes. 25 Q Played by the FEMA control cell. gN Heritage Reporting Corporation (202) 628-4888 ( n-) _ _ _ _ _ _ _ - - - l
l i I DONOVAN - CROSS 22450 i l 1 Juud then when do you stop the clock? 2 A (Donovan) When the alert notification system is 3 activated, and we normally expect the sirens to proceed the 4 sounding of the -- or the broadcast of the EBS message. So
~
5 it's usually started with the system activation which could 6 be the start of the sirens. 7 Q And do I understand from that answer that in every
, 8 instance in which there is a protective action 9 recommendation made the siren is sounded?
10 A (Donovan) In the case of ORO, that's the case for i 11 the plume pathway, protective action decisions. 12 Q Just so we are clear, the siren is sounded more 13 than once -- 14 A (Donovan) That's right. 15 Q -- during a day, for example? 16 A (Donovan) Yes.
. 17 Q Yes.
18 You say for ORO, but not for the State of New 19 Hampshire? i 20 A (Donovan) Well, the State of New Hampshire has in , 21 their plan the provision of usir.g what they call a PA mode. 22 That's a public address mode of the sirens, of two sirens, I - 23 believe, that are on the beaches. And we summarize these ; 24 EBS messages in two separate tables. But as far as when was 25 the decision made and when were the sirens sounded and when Heritage Reporting Corporation (202) 628-4888 u ___ __ _ _
DONOVAN - CROSS 22451
s 1 were the EBS messages broadcast, it's on page 76 and-77, 78
^'d 2 and 79, Table VII.
3 For this erercise, for the two plume pathway 4 offsite rosponse organizations, the test that involved them 5' actually delivering through whatever means their plan called 6 for the messages to the radio stations. And in each case
,. 7 there are two designated EBS stations. One for the ORO 8 State of Massachusetts, and one for New Hampshire. The 9 radio stations not only recorded the messages at the radio 10 stations in accordance with the procedure that they had, but 11 each station broadcast once a test message in response to
.12. one of these decisionmaking cycles.
13 We said in this case, obviously the radio station
/~h 14 did not have to meet the 15-minute cycle because it would be i k_ / 15 at their discretion. We didn't want them to interrupt their 16 day-to-day broadcasting. But as soon as they could after
, 17 they got the call, we mado a decision to do this. We're 18 sending you this message. As soon as you have recorded it 19 and are prepared to broadcast it, please broadcast the test 20 message.
21 In this case, both designated EBS stations
, 22 broadcasted the test message as well as recording it each 23 and every time during the plume pathway, the appropriate EBS 24 message that the offsite response organizations composed.
25 Q You called our attention to page 76, the Table L 7, f Heritage Reporting Corporation
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(202) 628-4888 i _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ a
DONOVAN - CROSS 22452 1 VII. Could I direct your attention to that table, and I 2 want to make sure I understand what's set forth there. 3 The left-hand column is the point at which the 15-4 minute time begins? 5 A (Donovan) No. If I can describe them. 5 Q Yes. 7 A (Donovan) Would it be easier to ask me a question - 8 to describe the columns? 9 Q Yes. 10 Well, would you describe how this information is 11 presented? 12 A (Donovan) First of all, we tracked all EBS 13 messages chat were developed in the exercise. So there is a 14 day one, a day two and a day five. And so this table is 15 broken into three components. 16 Day one starts off, and it lists one through five. 17 The first column is the protective action recommendation 18 time. And in most cases it was from the EOF to the EOCs. 19 The second column is the protective action 20 decision time. That was when the decisionmakers made the 21 decision on protective action recommendations. So it no - 22 longer was a recommendation. 7t was now a decision that ; 23 we' re going to implement these protective actions.
*{
i 24 The third column is the column that the simulated I l 25 siren soundings would have occurred since they did not, ORO 1 i l Heritage Reporting Corporation ; (202) 628-4888 1 1 l j , - _ --- _ L
DONOVAN - CROSS 22453 1- tcould not in New Hampshire, did not actually activate their
.)
2 sirens. 3 And the fourth column is'the time that we logged 4 vis-a-vis the receipt of the message at the. radio station as
-# 5 the. time that the radio station was prepared to broadcast 6 them. The two radio stations in question are_ equipped'to 7 receive and simul-broadcast if that's their choice. Most
/ 8 stations normally. create an EBS message on a cassette 9 similar to what's being used to record these hearings and j 10 this testimony, and they put their two-tone tone alert 11 encryptor on the lead part of their message, and then they 12 record the message, and then they put, you know, some follow 13 'ups. You know, this message will be rebroadcast every 15 14 minutes until further notice, something like that.
15 So the radio stations went through the process of, 16 ' depending on the procedures of'either recording or-
, 17 broadcasting, recording the appropriate messages.
- 18. Q So if we looked at the horizontal column No. 2 and 19 we were going to check whether it was in 15 minutes, we 20 would corpare 1210 with.12257 21 A (Donovan) That's correct.
22 Q And is the 1225 the beginning of the message? 23 A (Donovan) That would be the time that the message 24 started. 25 Q The time the message started. l l D Beritage Reporting Corporation 1 (202) 628-4888 p
- - - - - - - - . - - - . - - - - - - . - - - - - - ._ [ 0
DONOVAN - CROSS 22454 ' 1 Mr. Donovan, was the EBS station that was used for 2 Massachusetts, as far as you know could it have activated 3 the EBS system? 4 A (Donovan) Well, they did activate. 5 Q They did? - 6 A (Donovan) Ce s , I' ve said that, and it's in the 7 time log that they did activate it.
, 8 Q And was the EBS station that was designated and 9 used during the exercise, was it the primary EBS station for 10 that region?
11 A (Donovan) I believe it's the EBS station 12 designated in the SPMC plan. 13 Q Yes. And are you aware as to whether that station 14 is the primary EBS station in that region? 15 A (Donove I believe the State of Massachusetts 16 has designated another radio station.
, 17 Q And are you aware of whether or not that -- let me 18 withdraw thac.
19 Is there any difference between being the primary 20 EBS station and the nonprimary, as far as you know? 21 A (Donovan) Well, there is a difference as 22 described in the FCC regulations. . 23 Q Is there any real world difference in the capacity 24 to activate the EBS system, as far as you know? 25 A (Donovan) No. Heritage Reporting Corporation (202) 628-4888 u__-___. _ _ -
DONOVAN - CROSS 22455 j'N 1 Q Did you make any inquiry one way or the other in j)
'\
2 'that regt .with regard to the ORO exercise? L 3 A- (Donovan) I don't understand your question. 4 Q Well, you seem to be aware that the Commonwealth 5 has designated a different EBS station as the primary. 6- station. 7 A- (Donovan) That's correct.
.- 8 Q Different than the one t. hat was used during the I
9 exercise. ' 10 A (Donovan) And the one identified in the SPMC. 11 Q And the one identified in the SPMC. 12 Does that matter? 13 A (Donovan) From our perspective? 14 Q Yes. 15 A' (Donovan) No, it doesn't. 16 Q Now let's go back to Objective No. 13, the
. 17 accuracy and timeliness of the information made available to 18 the public.
19 There is, I take it then, a 15-minute requirement 20 with regard to timeliness in general. 21 What about accuracy of the information? Is there
. 22 any FEMA guidance that sets the standard for the accuracy of 23 the information made available?
24 A (Donovan) We have a document that you submitted 25 earlier as an exhibit, not for this objective, however, the b G - Heritage Reporting Corporation (202) 628-4888 1 w
DONOVAN - CROSS 22456 1 exercise evaluation model which has certain review questions t 2 that apply to our review of EBS messages. 3 Q If I were to tu- to the EEM for Objective No. 13, 4 would that set forth * #.rther guidance as to what accurate 5 informa' Lion is? 6 A (Donovan) It lists steps that were to be used to 7 review, and it puts accurate in context of the plan. 8 Question 6 has the following quest. ions on it, and it starts 9 off, "Were all the protective action areas described in 10 terms of familiar landmarks and boundaries for the affected 11 planning zone? Were the following items listed accurately 12 and effectively in messages," in this case, referring to I 13 EBS messages, "to support the affect of implementation of 14 protective action strategies, how to maximize protection and 15 sheltering, instructions for transients without shelter, the 16 use of ad hoc respirat.sry protection, what to leave behind
. 17 and what to take along when evacuating, evacuation routes 18 and locations of relocation centers, radiological monitoring 19 and locating of monitoring centers, the use of KI only if 20 it's appropriate to the general public," and in Seabrook's .
21 case it is not, 22 "Information and instruct 6cns for parents of - 23 students who are being sheltered, emely dismissed or 1 24 evacuated, information and instructions on preventive and k 25 emergency protective actions for the ingestion pathway, the Heritage Reporting Corporation (202) 628-4888 l L - - - - - - - - - - - _ _
s DONOVAN - CROSS 22466' [~ 1 A (Donovan) Yes, I did.
.! - ( '
2 What did you do? Q 3 A- (Donovan) Well, there was two-things. Number ,4 4 one, there was this issue and there's another issue, 5- 0 Let's just focus -- 'I just'want to talk about this H 6 one now. ) 7 A (Donoven) 'The offsite response organization in
, 8 conjunction with the State of New Hampshire and the onsite !
9 response organization runs joint telephone information 10 center which is a location where the public and the media 11 can call in to get questions or to get feedback on the 12 status of the response. 13 1-thought this gave an opportunity to test the 14 system to see if the other people that were responders in 15 the system could respond to a series of questions askinglfor 16 clarification as to whether the schools were being evacuated
. 17 or the schools were being sheltered.
18 So I went to the exercise director and asked her i 19 to insert some free play telephone messages into the 20 designated numbers for the ORO public concern tr am to see if 21 they could respond to these questions.
. 22 I would like to note --
23 0 Let me just interrupt, before we get too far along 24 in your answer. 25 Can you just define " free play" which I think is a
?
'( '
Heritage Reporting Corporation (202) 628-4888 . l
L l l-l DONOVAN - CROSS 22467 1 new term? 2 A (Donovan) Free play would mean that this was not 3 planned, so we didn't have prescripted messages for someone 4 to call in at a certain time. We haven't really talked 5 about those. But for the people calling this location they - 6 had hundreds of prescripted messages in times that they were s 7 to place these prescripted messages in terms of phone calls 6 in. 9 Q This vas not -- 10 A (Donovan) This was above and beyond. 11 Q Right. 12 A (Donovan) And agaire, as my role of the person 13 responsible for the evaluation of the pite. I went to the 14 exercise director saying I would like to see this tested, 15 will you request your people to place some calls so we can 16 test the system to see if the system will respond.
. 17 Q Respond to what?
18 A (Donovan) Well, you get back to the question you 19 asked me: how would I have heard it? 20 Q Yes.
. b 21 A (Donovan) I heard it cne way. I think the people 22 who wrote the EBS message thought the EBS message was ,
23 perfectly clear. 24 The question you raised: what did the public hoar? 25 And so we said, I think some of the public will understand Heritage Reporting Corporation (202) 628-4888 O)
DONOVAN - CROSS- 22468 [' 1 it perfectly and some of the public might be confused. So k'a 2 if they are confused or they want further information, let's 3 test the system to see if they get further information. 4 And so that's what I did, I asked them to test the-5 system. 6 Q Let me put a candid question, Mr. Donovan. 7- Isn't it a fact that you saw the text, and you're
, 8 at the ORO EOC and you realize that.this was an EBS message 9 and it was a significant piece of public communication and 10 that there was a serious lack of clarity there and that you l
11 instituted actions such that you would hopefully have the 12 ORO take further actions that would basically mitigate the 13 lack of clarity in that message? 14 A (Donovan) No , I did not.
.\,
2 15 The perspective has to be appreciated that I alone 16 tied their hands as responders. Earlier'on when they
> 17 attempted to get a precautionary evacuation or deferred l 18 dismissal, I refused to let the FEMA control cell approve 19 that. The State of Massachusetts said no, each decision l
20 will be on a case-by-case basis. If you tell us to i 21 evacuate, we will evacuate at that time. 22 1 The players didn't know that. I had an agreement 23 with the exercise director that,the New Hampshire control 24 cell would not allow the schools to commit their resources 25 to implement the protective actions. I wanted to give the s Heritage Reporting Corporation (202) 628-4888 U m__._ _ _ _ _ _ _ _ ,a_m. ..m.._2,.:_..______
I DONOVAN - CROSS 22469 1 ORO the worst possible case. No participation from anybody. 2 This time in the afternoon schools were in the 3 process, 3:30 is the normal dismissal time for the six 4 communities, and cost of them are already having their buses 5 there. So I was creating for them the worst possible case . 6 plus creating more than a slight degree of frustration on 7 behalf of the decision-makers, because they were told on ' 8 one-half of the equation, no, we won't approva precautionary 9 evacuation. We won't approve late dismissal. And then when . 10 they went with the decision from the governor, yes, evacuate 11 the students in these two communities, they went down the 12 other line to the school coordinator to the SAU units and 13 from the school liaisons to the schools. The schools had 14 not only, will we not implement it, we won't use our buses 15 that are sitting at our curb. 16 And so the ORO was put in a double box. I was
, 17 trying to creating the maximum amount of pressure on them to 18 see what they did. And within 10 minutes they made a 19 decision to add this paragraph at the end of this EBS 20 message and to deal with it in terms of mobilizing their 21 resources to get resources to the schools in terms of
- 22 transportation resources.
23 And I could describe how they made several efforts ) i 24 later on to go back to the schools offering them route 25 guides to go with the school buses that were already at the Heritage Reporting Corporation (202) 628-4888 i _ _ - - . - - _ _ . - - _ - - a
, s-b , , DONOVANI-' CROSS 22470.
[ 1 schools to get the children to the reception centers. "And i, Y' If 'the schools continued to say, no. 3 -We even made it worse. Heretofore, you would-have 4 thought conceivably that the schools had heard the sirens go 5 off eaflier and heard the EBS message earlier, that maybe 7 6- the-f would have been doing something. Like I said, 7 everywhere ORO turned to try to do something we' tied their o 8 hands. And then when it came to the actual time for the 9 first protective action decision we even made situations 10 worse for them. 11 We gave them no realism. We gave them no 12 cooperation. We forced them to do it all. j i 13 And in this regard I still think that the EBS ' E14 message is clear. And I think that the actions we took was 15 not -- because I'saw severe deficiency, I just saw an 16 opportunity to test another component of the system. I
. 17 already tested one component, their decision-making process, 18 .their implementation process, the ability to write an EBS 19 message under pressure, which was different than they would 20 have expected.
21 They were all prepared to go up an EBS message 22 saying the schools are goir.g to' commit their buses and 23 they' re going to drive their children out of the community. ! 24 And we didn't let them do that. We created the worst 25 possible conditions for them. l () lj Heritage Reporting Corporation (202) 628-4888 i [h' . .
DONOVAN - CROSS 22471
- ,_.s .
1- And in this case, this was just another test.
/ Y ' (_,) 2 ;1e're going to put another test on top of the test I have 3 already put on the system to see how tney respond.
4 And from that we'll go back to your -- i, 5 Q Let me just note for the record that just by sheer 6 coincidence, I'm sure page 215 of this document, Applicants' 7 43 (f) , is cut. At least mine is. 8 A (Donovan) I can give you the missing word. 9 MR. TRAFICONTE: I was just going to propose. I , 10 think this is actually a fairly signif3aant portion of this 11 report and if no one has an objection, maybe Mr. Donovan 12 could read the last -- 13 BY MR. TRAFICONTE: em 14 Q Do you know what is cut? p s_ 15 A (Donovan) Yes. l 16 Q All right. Could you read -- 17 A (Donovan) It's cut from everyone's copy. 18 Q Yes, I know. 19 A (Donovan) " Schools." 20 JUDGE McCOLLOM: Where? 21 THE WITNESS: (Donovan) The very last paragraph 22 on page 215 you should add one more word " schools." l "It was their belief that the," } 23 JUDGE McCOLLOM: l' j 24 and then I can't even tell what's after that. 25 THE WITNESS: (Donovan) I don't have your copy. I[} (_,/ Heritage Reporting Corporation (202) 628-4888 i ,
JONOVAN - CROSS 22472 1 I'll start up at that sentence: "It was their 2 belief that the schools in Amesbury and Salisbury would 3 commit their transportation resources to evacuate their 4 students: i.e., the statement that the schools in the 5 communities being evacuated would be evacuated. It is noted q 6 that normal dismissal of schools is 1430 for Amesbury and 7 Salisbury Schools and, accordingly, the buses and drivers 4 L.. 8 would have been at the schools." l- ' 9 JUDGE McCOLLOM: Well I'm missing a whole ) 10 paragraph then. 11 THE WITNESS: (Donovan) Yes. It sounds like it. 12 I didn't realize you were missing that much of the copy. 13 JUDGE SMITH: Wait a minute. 14 MR. DIGNAN: Well, wait a minute. 15 The other thing I don't understand, there's a 16 period at the end of 2:15, at least in mine. 216 begins
, 17 with a small "t "
18 THE WITNESS: (Donovan) Yes. There's a phrase 19 missing from that. And the phrase should be: "The control e 20 cell informed NHY ORO that," and then the rest reads l% ' 21 accurate. . 22 BY MR. TRAFICONTE: . 23 Q That last addition was on what page? 24 A (Donovan) 216. 25 MR. DIGNAN: 216. i I Beritage Reporting Corporation (202) 626-4888
F DONOVAN - CROSS 22473 g-{ 1 MR. 7PAFICONTE: I have to admit n(w to being
- g. %, 2 ' completely lost, because I had an-old copy o'! th'is report.
3 (Pause to peruse document.) 4 BY MR. TRAFICONTE:
.- 5 Q Well, the portion of this narrative summary that e begins: "It.is FEMA's belief," and carrying on to the next
"} 7 page, the top of 216 right through and including the first
- 8 full paragraph that begins: "The FEMA RAC Chairman."
9 .Those two paragraphs were added by you, were they 10 not? 11 A (Donovan) That's right. 12 I was the only person who knew, other than~the ORO 13 exerc.4se director what we were going to do. e 14 Even my evaluation team didn't know until after j
' 15 the exercise what scenario compromise I was going to force 16 on the ORO.
, 17 Q The-FEMA evaluator who was responsible, personally 18 responsible, for monitoring and evaluating the EBS messages 19 that ORO made available to the public, how did he evaluate 20 - that message?
21 A (Donovan) As I stated earlier, he thought there 22 was a lack of clarity. 23 Q So the lack of clarity that you describe that's i 24 here in the report, in fact, on page 215, you have the l 25 statement: "One of the EBS messages was not consistent with fx. Heritage Reporting Corporation (202) 628-4888 I m --- --
DONOVAN - CROSS 22474 1 actions and discussions of the staff." 2 Is that a view that you share or that you don't 3 share? 4 A (Donovan) At the time the EBS message was being
~
5 sounded, 2:20 or approximately, the staff at the ORO e 6 decision group were aware of two things. They were aware i 7 that Merrimac schools had been dismissed. And they were 8 aware that they had to provide resources to Amesbury and 9 Salisbury. 10 So that was his issue. The ORO decision-makers, 11 the ORO EBS persons felt that they had produced a clear 12 consistent message. , i 13 At the same time the EBS message waa sounding 14 there was a press conference going on. And at the press 15 conference they did announce to the public, at the press 16 conference, that the schools in Merrimac had been dismissed.
;. 17 And so from that regard in terms of informing the l j
18 public, one system worked. The system that informed the j I 19 public at the press conference that Merrimac schools had I 20 been dismissed. 21 The other aspect of addressing the EBS message, 22 that's what that point means. I don't know how I can - 23 explain it anymore without going into more detail. 24 Q Now, we're in a subjective area here. 25 This objective has to do with the accuracy of the Beritage Reporting Corporation (202) 628-4888 ww______
- i. DONOVAN - CROSS 22475
. . 1 message. And there was a message, in the opinion of your ,p
( 2 . FEMA evaluator, that had a lack of clarity. It was an EBS-1 _3 message. 4 And it's your judgment _that that EBS message
- 9 5 merits an ARCA, doesn't it?
p 6 Later in your report there is an issue about that
. 7 message and it's identified as an inadequacy, I believe.
- 8. And it's judged an ARCA, right?
9' A (Donovan) That's correct. 10 Q So you made the judgment. You essentially weighed 11' the significance of that lack of clarity in that EBS message
- 12 and you came to the conclusion as we discussed over the 13 course of the day, that merited an ARCA.
14 Now, could you turn to page B-8. And again, we're 15 familiar with what this appendix has in it. "The 1986 16 exercise FEMA identified several messages," I'm reading _just
, 17 from paragraph number five, "several messages generated at 18 the state EOC and intended for broadcast to the public, 19 contained contradictory and partly inaccurate information.
20 For example, ERBS message number four called for both
- 21 sheltering and evacuation in the Towns of Seabrook, Hampton, 22 and Hampton Falls." And then it continues.
- 23. And that was rated a deficiency. And you would 24 agree with me that it sounds like the messages that were 25 complained of in 1986 had a similar lack of clarity, did
( i Heritage Reporting Corporation (202) 628-4888 i e
DONOVAN - CROSS 22476 1 they not? 2 A (Donovan) Well, no, because to me this sentence 3 says they were contradictory and inaccurate. And I don't 4 believe the EBS messages produced by any one of the three 5 organizations: the State of Maine; the State of New 6 Hampshire; or ORO were contradictory and inaccurate. 7 O All right. 8 You think that's a matter of judgment about which 9 reasonable people could disagree? 10 A (Donovan) Possibly. 11 Q Did you make an assessment, Mr. Donovan, of the I l 12 impact of this particular message on a hypothetical group of 13 parents who would be hearing it? 14 Did you imagine what the impact would be in 15 determining whether it should be judged an ARCA or a 16 deficiency? l
. 17 A (Donovan) I looked at the total system that 18 provided information to the public. One of which is the EBS 19 mechanism.
20 Another is the press conference that was being 21 conducted simultaneously with the EBS where they discussed 22 the EBS message. They even read it at the press conference - 23 and went on to expand on what was happening to the schools 24 in question. 25 And thirdly, for those public that might have Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22477 1 thought that there was some lack of clarity, I tested the 2 system to see what answers they would get for that. And we 3 tested that because we discussed using free play telephone 4 calls sent into the joint telephone information center.
. 5 _
And in all three cases I believe that the public 6 would have been accurately informed of the status of the
," 7 schools. Like I said, I can read - you have to appreciate, 8 we're reading something. When you hear something on the 9 radio you only hear it. And there's a difference to one's 10 perception. When one is looking at words on paper versus 11 what one is hearing.
12 And I again go back, just my perception and 13 judgment that a person hearing that and not seeing the words 14 would put into context the two paragraphs that are separated 15 by approximately 30 seconds worth of talking. If you have a 16 slow talker who reads that message or reads the synopsis of
, 17 the message.
18 And those that might have perceived the lack of 19 clarity had two mechanisms. Number one, the same radio 20 stations in other media that would be broadcasting or 21 relaying the EBS messages would have heard at the press 22 conference, statements that are said in table nine that talk 23 about the press conference. 24 And they state there c1marly there children are 25 being held in school until we can get resources there to Heritage Reporting Corporation (202) 628-4888 _ . _ _ _ __ _ _ __ __ x
l DONOVAN - CROSS 22478 1 evacuate them with the exception of Merrimac who had been 2 dismissed, students at Merrimac. 3 And that, you know, any and all questions that the 4 media or anyone else could have brought forth -- could have 5 been brought forth to provide more specificity, if that's 6 what was called for. 7 Q Well, this message was followed up then by a press
, 8 release.
9 Do I take it that part of your answer was that ,
\
10 thers was a press release that followed upon this message I 11 that clarified this information? 12 A (Donovan) No. There was a press conference 13 ongoing simultaneously. When you stop to think about it, 14 they are demonstrating how really effective their 15 information system was. That they came to this resolution 16 on or about 2:15 while they were in the process of sending
, 17 this EBS message to the radio station, that these schools 18 were not going to commit their resources and that they had, 19 in their perception, a real problem on their hands that they 20 were able to get information over to the members of the ORO 21 team at the media center. And that the media center people 22 were able to add clarifying instructions during the press -
23 conference that were above and beyond. 1 24 And I point, you know, on page 103 it says: ' 25 " Dismissal delayed in all schools except Merrimac whose ! l l Heritage Reporting Corporation (202) 628-4888 ' L _ _ -_
DONOVAN - CROSS 22479 sp- .- 1 students were released'at 1415. Students in other schools d k_,/: 2 will be taken to.the reception center." 3 .In that regard, the system was on top of it.
]
i' 4 Again, from the perception of the decision-mak. rs they felt
..- 5 they had a clear EBS message. I perceived what I thought b :,
6 could be interpreted as a lack of clarity to the listener, 7 and so I asked for an additional test to see what type of
. 8 response we would get through another response mechanism, 9- being the joint telephone-information center.
i 10 11 12 1 L 13 i: 14 f . -f 15 l- 16 L
- 17 18 l
19 20 21 22 23
-24 25 l'
[ Heritage Reporting Corporation
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i. DONOVAN - CROSS 22480 p 1 Q Before we come to the joint telephone information 2 center aspect of this, they went right ahead and repeated l 3 the same message, didn't they, about an hour later, at 1532? 4 If we turn to page 84, didn't ORO EBS Message 5 No. -- well, then, maybe I am misreading your table. , 6 Do you see on the bottom of page 84 under the time 7 1532, do you see NHY ORO EBS No. 3? Do you see that? - 8 A (Donovan) Yes, I do. 9 Q And if you turn back to page 82, at 1420 time 10 under the time column, you also have ORO EBS Message No. 3, 11 correct? 12 First of all, can we just get clear what -- 13 A (Donovan) That should be Message No. 4. 14 Q Okay. I think that's right. We should change the 15 entry for 1532 on page 84 to Message No. 4, shouldn't we? 36 A (Donovan) That's right.
, 17 Q All right. That's what I thought.
18 Now, this message No. 4, they just go right ahead 13 and repeat what they had said about an hour earlier, don't 20 they, in regard to the children in Amesbury and Salisbury? 21 A (Donovan) Well, I think it's upgraded. - 22 Q Well, let's take -- 23 A (Donovan) The last paragraph on page 85, you 24 know, clearly is now stating that the children will be held 25 in school until they can be safely moved. Heritage Reporting Corporation (202) 628-4888 _ _ _ _ . - - - _ _ - - - _ _ _ _ - - _ _ - - - - - - --- - _ - - - - - ---- -------- ---- - - - - - - - _ - . - - - - - - - - --L
i l DONOVAN'- CROSS '22481 [ 1 Q Yes, I-unde'rstand that portion of the -- well,
'\
2 that's not so unlike the statement at page'83 in the Message
- 3 No. 3 that says that, and again we're talking about synopses-4 here, " Parents with kids at school advised.they.are safely l
5- maintained at school." That's what No. 3'said.
~6. Turn the page, No. 4 said, " Parents with school 7 kids in Salisbury and Amesbury," et cetera, " told the kids 8 being held at school."
9 Now the problem, of course, is that if you turn to. 10 page 84, this EBS Message No. 4 states that the 11 Massachusetts Governor recommends immediate evacuation of 12 residents of Salisbury and Amesbury, right? 13 A (Donovan) That's correct. 14 Q And then if you turn to the top of page 85, in the 15 second full paragraph you find, "All schools in evacuation 16 ' areas are being moved to designated reception centers."
-c 17 Essentially the EBS Message No. 4 repeated for the 18' Amesbury and Salisbury school children. exactly what the EBS 19 Message No. 3 had said, that the report describes as a lack 20 uof clarity, doesn't it?
21 A (Donovan) Well, I don't interpret it that way.
- 22 Q Well, how do you interpret it?
23 What are the meaningful differences between what 24 Message No. 3 said that was judged to be unclear, to some
.,5 2 extent --
Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22482 1 A (Donovan) I said I judged it to be unclear. 2 O You judged it to be unclear? 3 A (Donovan) Yes, I said I judged it to be unclear. 4 Q Yes, I appreciate that. You judged it to be 5 u4 ;1 ear, and you gave it an ARCA. And we just had an , 6 atcount of essentially how marvelous the information system 7 turned out to be. But low and behold, an hour later they - 8 repeated essentially the same message, didn't they? 9 MR. DIGNAN: Are we getting close to repetitive 10 argument? 11 The message speaks for itself. The witness has 12 said he's giving his vi6w of it. I don't know what more he 13 can do. Obviously counsel would like to call it an 14 inconsistency. I would like to call it a lack of clarity. 15 MR. TRAFICONTE: The report calls it -- 16 MR. DIGNAN: Counsel would like to call it a
, 17 glitch.
18 MR. TRAFICONTE: Counsel would like to call it a 19 deficiency. 20 MR. DIGNAN: But you see, counsel doesn't get to 21 make that call. - 22 MR. TRA.TICONTE: No. 23 MR. DIGNAN: But the point is how much more can we 24 do. I mean, he's given his view, and the message is there. 25 I can make a heck of a speech that the parents are Heritage Reporting Corporation (202) 628-4888 - _ _ _ _ _ _ _ _ _ _ - - _ - _ _ . - 1.
?)
DONOVAN - CROSS 22483 1 in great shape. Both those paragraphs clearly tellithem not
. C
( 2 to go pick up the kids. I mean, you know -- 3 JUDGE SMITH: Well, one of the purposes of cross-1 4 examination is to confront a witness with perceived i
, 5 inconsistencies and hope that'you will get him to 6 acknowledge it.
7 MR. DIGNAN: I agree, and he's been confronted, it
, 8 seems to me, for about 15 minutes with-the same two 9 inconsistencies which he doesn't adopt as inconsistencies.
10 JUDGE SMITH: No, this another one now, isn't it? 11 MR. TRAFICONTE: This is not the same 12 inconsistency. This is a subsequent message an hour or so 13 later. 14 JUDGE SMITH: Yes. 15 MR. TRAFICONTE: And I'm trying to probe as to -- 16 MR. DIGNAN: Well, are you asking him why they are
, 17 still broadcasting --- because I haven't heard the question I 18 thought I was going to hear, which is why are they repeating 19 it an hour later. You haven't asked him that one. You're 20 back on what's the difference between the two paragraphs as 21 I hear it.
22 MR. TRAFICONTE: I'm trying to lay the groundwork. 23 MR. DIGNAN: Okay. All right. 24 MR. TRAFICONTE: I want to make sure that Mr. l 25 Donovan agrees that the second message is just as 1 [' Heritage Reporting Corporation (202) 628-4888
- _ - _ _ _ _ - _ _ l
DONOVAN - CROSS 22484 1 inconsistent as the first. 2 THE WITNESS: (Donovan) I don't see them to be 3 inconsistent. 4 BY MR. TRAFICONTE: 5 Q Let me put it this way. Can we agree that the 6 first message has a lack of clarity? 7 A (Donovan) It's my perception it has lack of
, 8 clarity.
9 Q Okay. 10 A (Donovan) Other people do not perceive it to have 11 a lack of clarity. I perceive it to have lack of clarify. 12 Q All right. 13 And do you agree that now that you have reviewed 14 the synopsis for the EBS Message No. 4, which is 15 approximately an hour later, it has the same lack of 16 clarity?
. 17 A (Donovan) I wouldn't -- to be --
18 Q You don't agree with that statement. ' 19 A (Donovan) No. 20 Q Okay, that's fine. 21 Can you account for your view? Can you give an , 22 explanation for why you don't judge the EBS 4 in the same - 23 way that you judge the EBS 37 24 A (Donovan) Well, I looked -- I don't know. I i l 25 would have to go back and think about it. Heritage Reporting Corporation (202) 628-4888 l
DONOVAN - CROSS 22485 1 Q Where would you go back to? p). ( 2 A (Donovan).
~
I would have to take a minute to'think.. p < 3 Q We can pause for a minute. l 4 A (Donovan) From my perception that they took
.. 5 actions to. respond. They were in a process of writing 6 another EBS message that got everrun by a new course of 7 events. And we looked at -- again, FEMA looks at the j
8 systematic implementation of procedures and the ability of 9 the response organization in implementing these procedures 10 to respond to issues and to take corrective action. We saw 11 corrective a;tions being taken, and -- 12 Q Yes, I understand you did, and we were going to 13 come to the corrective actions vis-a-vis the joint telephone ; 14 information center. But what I was pressing you on is that
-r f~s b 15 while they are correcting it over here at the. joint j 16 information center, an hour later they are disseminating in- ,
1
- 17 EBS No. 4 exactly the same, or essentially the same i
18 statement that they were disseminating at 1420 that required 19 correction. ) 20 JUDGE SMITH: Wait a minute, j 21 You started talking an hour earlier about l l 22 inconsistences. 23 MR. TRAFICONTE: Pardon me? 24 JUDGE SMITH: You started talking an hour earlier l i 25 about a perceived inconsistency. An hour earlier an EBS
/' Heritage Reporting Corporation (202) 628-4888 I
_-_-__________ _ __ 1
DONOVAN - CROSS 22486 i 1 message was broadcast which you deem to be an inconsistent 2 one because separated by one paragraph are what you deem to ) 3 be inconsistent statements. 1 4 MR. TRAFICONTE: FEMA deemed it. It's right in j 5 the - ' 6 OUDGE SMITH: Yes. He did. 7 MR. TRAFICONTE: He did. 8 JUDGE SMITH: And you do,, too? f 9 MR. TRAFICONTE: And I do, too, yes. {
\
10 JUDGE SMITH: All right. Now over here an hour 11 later -- EBS 4, is it? - what is the counterstatement as to l 12 which this statement should be compared before you have an 13 inconsistency? 14 MR. TRAFICONTE: Well, we did go through that and 15 perhaps it wasn't clear. But EBS No. 4 -- 16 JUDGE . SMITH: Where?
, 17 MR. TRAFICONTE: Oh. The bottom of page 84.
18 JUDGE SMITH: Okay. 19 JUDGE MCCOLLOM: And it says No. 3, but it's 20 supposed to be No. 4. 21 MR. TRAFICONTE: Yes. That's the first point. 22 That it says No. 3, but it should be No. 4. - 23 JUDGE SMITH: All right. 24 MR. TRAFICONTE: And at the bottom of the 84, it 25 says, " Massachusetts Governor recommends immediate i i Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22487 1 evacuation of residents of Salisbury and Amesbury." 2 The onto the top of 85, second paragraph, "All 3 schools _within evacuation areas are being moved." Then at 4 the bottom of 85, " Parents with school kids in Salisbury and
. 5 Amesbury --
6 JUDGE SMITH: Oh, I got it. 7 MR. TRAFICONTE: The map of this EBS --
, 8 JUDGE SMITH: All right, the same points of 9 comparison.
10 MR. TRAFICONTE: The same points of comparison. 11 JUDGE SMITH: I only saw one point. 12 MR. DIGNAN: Yes. Could we agree that the first 13 paragraphs aren't identical, though?
14 Indeed, the word " evacuated" has been changed to 15 moved", among other things, in the first set of paragraphs.
16 MR. TRAFICONTE: Can you give me the paragraph
. 17 that you are talking about?
18 MR. DIGNAN: Yes. In other words, the first 19 paragraph of concern in EBS Message No. 3, the statement is, 20 "All schools' within evacuation area are being evacuated to l . l 21 designated reception centers." 22 And as I understand your inconsistency theory, or 23 everybody's, is the problem is they are told that, and then 24 they are told later they are being safely maintained at 25 school. t Meritage Reporting Corporation
\s (202) 62G-4888 l
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i DONOVAN - CROSS 22488 1 MR. TRAFICONTE: Sheltered at school, yes. { 2 MR. DIGNAN: Okay. And we all want to ignore, 3 apparently, the fact that the parents are told in any event 4 don't come to the school. 5 MR. TRAFICONTE: No , we are not ignoring it. . 6 MR. DIGNAN: But be that as it may, at least in 7 the second one they now say, "All schools within the 8 evacuation areas are being moved to designated reception 9 centers." 10 And down below are told, "The kids being held at 11 school will be kept until determined they can be safely 12 moved." 13 Now that seems a little less lacking in clarity -- 14 let's put it that way -- to me, but I guess it doesn't to , 15 you. 16 MR. TRAFICONTE: No. What I was thinking was
, 17 there is an empty chair up there. You might want to go up.
18 We could press on the difference between " move" and 19 " evacuate". 20 MR. DIGNAN: Well, that's the point, Mr. 21 Traficonte. It seems to me that this is a wonderful subject 22 for you and I to argue about in proposed findings. But 23 where are we going with the witness? 24 The witness won't accept your inconsistency. He 25 calls it a lack of clarity. I don't know that that makes a Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22489 1 hill of beans to either one of us when we argue the case. i ! 2 It seems to me you are beating something that's clear.. -The 3 documents in the old way speak for themselves.. You can 1, 4 argue that Donovan doesn't know what he's talking about if 5 he didn't see a total lack of inconsistency, and I can argue 6 that he's an English scholar'and everybody ought to respect ; l 7 him 'for it. I don't know. Aren't we beating it to death is
, 8 my only point.
9 MR. TRAFICONTE: That's the Dead Horse Objection ! 10 I've heard about. 11 MR. DIGNAN: That's the Dead Horse Objection. 12 (Laughter) 13 MR. TRAFICONTE: I think I have heard that 14 objection before. 15 MR. DIGNAN: But the response isn't even passing-16 the blush test. j 17 MR. TRAFICONTE: No , I'm not blushing. I don't I 18 think we are beating it to death. I think we are pressing ! 19 on cross -- 20 MR. DIGNAN. Well, go -- it's your time. 21 MR. TRAFICONTE: Let me respond. i 22 MR. DIGNAN: I don't have an objection. 23 MR. TRAFICONTE: You have an objection? 24 MR. DIGNAN: No. 25 (Laughter) Heritage Reporting Corporation (202) 628-4888 l
- l. ,
I i i DONOVAN - CROSS 22490 I f 1 JUDGE SMITH: You're just helping? 2 MR. DIGNAN: Yes. Yes. ' 3 (Laughter) > 4 MR. DIGNAN: Keeping things moving along. 5 EY MR. TRAFICONTE: , 6 Q Would you, in light of your review of this EBS No. 7 4, would you want to now perhaps identify, in your report at '
, 8 215, where you state that one of the EBS messages was not 9 consistent with actions and discussions?
10 Would you want to correct that to add the EBS No. 11 4 message as well? 12 A (Donovan) No, I would not. I 13 Q You would not. 14 A (Donovan) I've got my statement on page 216 that 15 says the subsequent EBS message stated schools in these 16 communities are being evacuated in ORO EBS Message No. 4.
, 17 Q And I'm sorry, I missed it.
18 A (Donovan) And as Mr. Dignan pointed out, a 19 significant verb was changed between EBS message No. 3 and 20 4. 21 Q Oh, he convinced you of that? 22 A (Donovan) No, I -- 23 Q You're persuaded by that. 24 JUDGE MCCOLLOM: Mr. Tra'ficonte, I heard Mr. 25 Donovan say that 10 minutes ago. The " move", when you first Heritage Reporting Corporation (202) 628-4888 I
DONOVAN - CROSS 22491
,s 1 started on that.
/ s s ,,) 2 Is that not true, Mr. Donovan?
3 THE WITNESS: (Donovan) That's correct. And 4 therefore, as I said and as I've said here'in the text, to
. 5 me the lack of clarity was no longer existent between the 6 two messages. The two messages are not identical.
~
7 BY MR. TRAFICONTE:
, 8 Q And is the critical and operative difference 9 between them the distinction between a message that tells 10 the public that the schools in the area are being evacuated 11 and a message that says the schools within the evacuation 12 areas are being moved?
13 A (Donovan) Yes. And again, it was my perception g-~ 14 when I first read that message that I -- I as the planner,
- 15 or as a professional of many years experience in looking at 16 these things and evaluating them in an exercise -- I would . 17 have perceived the lack of clarity. So I was the one who 18 wanted it tested.
19 The evaluator, who was assigned this, he didn't 20 write it up for this issua. He wrote it up because he felt 21 that they had these other facts. He didn't know why all 22 these other facts were on the table, because he didn't know 23 the fact that I was tying the ORO's hands. I wouldn' t let 24 the schools use their buses and I wouldn't let the state 25 give the ORO a precautionary evacuation of schools or late s- m ~ ( Heritage Reporting Corporation (202) 628-4888 _ _ _ - - . _ n
DONOVAN - CROSS 22492 1 dismissal until this evacuation message came across. 2 So only I, as in most cases, and that's the way i 3 the FEMA system works, all of the issues come up to a person I 4 at my level, because we are the ones theoretically who are l l 5 most knowledgeable about the plan, most knowledgeable about 6 the Extent of Play, most knowledgeable about what the j 7 scenario was designed to test. And in my case, I had an 8 additional test that only I knew about, and the ORO until we 9 implemented it. 10 Q Now the distinction between " move" and " evacuate", 11 these are synopses, are they not, that are set forth in the 12 report? 13 A (Donovan) Well, there is also - you have and 14 attachad to your witnesses' statements -- all the 15 handwritten text, and I think you will find the words read 16 the same. . 17 Q That the word in the message is " move" in one. 18 A (Donovan) Yes. 19 Q And " evacuate" in the other. 20 Just one more question on this issue of these two 21 messages. 22 I want to direct your attention to page 90. Now - 23 at page 90 is a different -- it's the beginning of a 24 different table, is it not? 25 It's the summary of news releases. Heritage Reporting Corporation (202) 628-4888
(: DONOVAN - CROSS 22493
. ' 'N, 1 A (Donovan) That is correct.
t \-s 2 Q And let me just'ask.you the preliminary question.
- 3. Can you just briefly state the relationship, both 4 in terms of time cnd content, between the EBS messages that-5 were broadcast by ORO and the news releases made public.by 6 ORO?
7 A (Donovan) Just on the theme of the EBS messages? 8 Q Yes. Just the news releases, the aspect of the ! 9 news releases that relates co EBS messages. 10 A (Donovan) Our review process normally looks for 11 the ability at the media center to have the text of the EBS 12 messages made available to the media. And as the planning 13 standards call for, as the planning guidance calls for, we
/"'N 14 look to the media to assist the decisionmakers in getting 15 their message to the public.
16 And one of the way is obviously to give them-the 17 text of the EBS message to ensure that they can accurately 18 reflect that. The media is a filter. The media 19 rebroadcasts using their own editing and their'own versions 20 of how something is to be implemented. So we look for the 21 text to be made available at the media center.
. 22 And then on this list, this is a list of all the 23 organizations offsite, not onsite, to produce releases as 24 part of our exercise.
25 We have different times on this list than are on g Heritage Reporting Corporation s (202) 628-4888 A
i i l l DONOVAN - CROSS 22494 1 the individual releases or that are reflected in some of the 2 written testimony submitted, especially by the Massachusetts 3 AG's witnesses. The times that we show in this column are { 4 the times of the release. That is, the time the release was I 5 actually available at.the media center for a media person to , 6 pick up, which is different than the time of the release may 7 carry on its cover. - 8 One thing we haven't mentioned before, but I'll 9 get to it right now, is we made each organization take a 10 shift change. And the shift change message went out at 11 2:00, and they were to implement shift changes between 4:00 12 and 5:00, which most organizations would not have done. But-13 again, we had a mini-scenario forcing them to go through a 14 shift change. 15 But in this case the ORO press releases that are 16 listed on this list where it shows EBS message in the
. 17 content column is meant to be reflective that a news release I i
18 was created that contained the text of the EBS message. 19 Q All right. And there is a purpose to that, is l l 20 there not? ! 21 I mean that's by design? ~ 22 A (Donovan) By my design? 23 Q No. 24 A (Donovan) Oh. 25 Q The plan has that -- Heritage Reporting Corporation l (202) 628-4888 I
DONOVAN - CROSS 22495
/N 1 A (Donovan) Yes, that is what I just described.
N ] Y- 2 inat that's the way the mechanism is supposed to Q 3 work? 4 A (Donovan) Right. Yes. 5 Q All right. 6 I would like to direct your a'+ention on this 7 table of the summary of news releases, if you would just
, 8 pass down to ORO No. 7. Now the time of release of ORO No.
9 7 was 1525, correct? 10 A (Donovan) Yes. 11 Q And I take it that means that at 1523 ORO released 12 a hard copy to the press of EBS Message No. 3. 13 A (Donovan) Right. \ N [\ 14 Q And this is the same EBS message that you noted at 15 page 215 of your report had some lack of clarity. 16 A (Donovan) That's correct.
. 17 Q Did ORO by 15, and this is about a little over an 18 hour later, did the ORO public information staff, they did 19 make corrections in the news release at 1525 to correct for i 20 the lack of clarity in their EBS message?
21 A (Donovan) I don't believe that they did.
- 22 Q They just handed ouc the same message?
23 A (Donovan) Well, if you look, the preceding 24 release correctly states the conditions, ORO No. 6., and at 25 1419, at the news conference that was being conducted at i 0 Heritage Reporting Corporation (%'-) (202) 628-4888 i l
DOWOVAN - CROSS 22496 1 that time, they pointed out in their presentation the issue , 2 of Merrimac and the issue that they were getting buses to 3 the schools in order to effect evacuation. ; l 4 So I think that the media that was there was fully j 1 5 informed of the differences and would have been in an ' l
~ ,
6 educated position to so reflect if they choose to reflect l 7 those differences. -
, 8 Q Let me make sure I understand your testimony.
9 You are referring me back to ORO No. 6, and you , l 10 are saying that ORO No. 6 at 1510 clarified the issue of j l 11 what school children were going where. And the news media 12 would have understood that, so the news media would have 13 known that the news mecC4 could disregard and should 14 disregard the statements in ORO No. 7. 15 A (Donovan) No, I'm just showing illustratively 16 before they released the text of the EBS message, they 1 i 17 released a release that contained an accurate reflection of 18 the conditions. And that release was preceded by a news 1 19 conference which occurred approximately 40 minutes earlier 20 where they told them, we are sounding the sirens now. We i 21 are reading the EBS message, and here's what is actually - l l 22 happening. So they set the stage for the media to realize 23 specifically what was happening. 24 1 25 l l k Heritage Reporting Corporation (202) 628-4888 l l L - --- _ - - - - - - _ _ L
DONOVAN - CROSS 22497 7s 1 Q Do you think that was an exercise inadequacy that (,,) 2 at 1525 they made available or broadcast to the press a hard 3 copy of EBS number three without any changes? 4 A (Donovan) No.
. 5 ,
I think the media would have been awa:e of the 6 situation. 7 JUDGE SMITH: Is ORO number 7, is that simply a 8 hard copy of EBS number 37 9 THE WITNESS: (Donovan) Yes. 10 JUDGE SMITH: You're suggesting that the release 11 to the media, they tell the media that they have broadcasted 12 something that they hadn't actually broadcast? 13 MR. TRAFICONTE: Was I suggesting that they do e- 14 that?
's 15 JUDGE SMITH: Yes. Is that the point of the 16 question, that they might give a news release saying they
, 17 had broadcast something when really they hadn't.
18 Assuming that EBS number 3 was bad, should they 19 tell the press later on that's not what they said. 20 Is that the suggestion? Is that the center of
~
21 that question? 22 MR. TRAFICONTE: Well, it was certainly the 23 suggestion in the last question. 24 MR. DIGNAN: Yes. 25 MR. TRAFICONTE: Let me put the question to the r% Heritage Reporting Corporation ( } ( ,/ (202) 628-4888
- -. _. - - _ _ - - _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ L
DONOVAN - CROSS 22498 1 witness. 2 BY MR. TRAFICONTE: 3 Q You don't consider the release of the hard copy 4 version number 3 to be an inadequacy? 5 A (Donovan) No. , 6 I think they have to. 7 Q They have to. They have a disclosure requirement.
, 8 A (Donovan) Well, they have an obligation. They 9 don't have to, but they have an obligation.
10 And as the Judge pointed out, I would have faulted 11 them for changing the text. 12 Q I see. 13 Let me make sure I understand the purpose behind 14 taking an EBS message once it's broadcast and handing it to 15 the press in the first instance. 16 Why is that something that a plan should provide?
, 17 A (Donovan) Remember we have multiple types of 18 media. We have two types of electronic media: we have the 19 TV media which has the capability for instantaneous 20 broadcast back to their station and broadcast on the 21 network.
22 We had the radio media which also has the 23 capability. 24 But you also have a large print media. And the 25 print media like to write composite stories of what happened Heritage Reporting Corporation (202) 628-4888 - l l _ _ _ _ _ _ _ _ _ _ _ _ . - 1I
c DONOVAN - CROSS 22499 at whatLtimes.
~
./ 1
>~' 2 And in all three' cases we feel -- we, FEMA,' feel 3' that the responders at media centers should divulge all the
.4 information that-they have available to them. And the 5 information in a printed form is changed to reflect t .
6 something as a hindsight, I don't think that's right. 7 Q I see,
- i. 8 So it's your understanding then that the purpose 9 of moving the EBS messages into hard copy and then releasing 10 them in the form of press releases, that's not a public 11 notification / public instruction function?
12 A (Donovan) No. 13 Informing the media -- in the beginning, media are i T./ [\ s 14 a filter, as you probably know if you have given answers to
'1 j
15 the media they don't necessarily print what you think you 16 said. And in that regard it's important that you establish
... 17 your track record of what you said.
]
18 Q I want to ask you a couple questions about New i 19 Hampshire schools, Mr. Donovan. 20 MR. TRAFICONTE: I'm looking at my watch and I'm 21 just thinking about the time. I can't get done tonight. I 22 don't know if we're all waiting on the edge of our seats for 23 that announcement. But I can't finish tonight. If I 24 thought I could if we stayed an hour, I would even do that. 25 But I don't think I can. Heritage Reporting Corporation (202) 628-4888 I
------______ _ - - - - _ - \
DONOVAN - CROSS 22500 1 MR. DIGNAN: Break? 2 MR. TRAFICONTE: Yes. Can we go just a few more 3 questions and then break? I know Mr. Dignan has some 4 writing to do. 5 BY MR. TRAFICONTE: . ! 6 Q A couple of questions about New Hampshire schools, 7 Mr. Donovan. 8 First of all, no New Hampshire teachers 9 participated in the exercise, did they? , 10 A (Donovan) That's correct, to my knowledge. 11 Q And the exercise -- I know the exercise was 12 conducted at the end of June. Was that a day on which the 13 schools in New Hampshire were having a normal school day? 14 A (Donovan) That's my understanding, school was 15 out. 16 Q School was out.
, 17 Did that present any particular problems in terms l 18 of demonstrating a full range of capabilities for functions 19 connected to New Hampshire schools?
20 A (Donovan) Not in my opinion. (
~
21 The New Hampshire plan says that the state will 22 arrive at a protective action decision and the state will 23 communicate that decision through the Board of Education to 24 the SAUs and the local communities will go to the individual 25 schools. Heritage Reporting Corporation (202) 628-4888 l - - _ 1
DONOVAN - CROSS 22501
,m
( ) 1 The state marshals, all the resources necessary to i N--l j 2 implement protective actions for schools in terms of 3 transportation resources. So the state went through all the l 4 actions that they would normally go through to determine j 5 resource needs and to implement those resources in terms of i l 6 committing resources to provide transportation resources to 7 the various schools.
, 8 Q So the fact that the schools were out of session, i
9 that was irrelevant for the demonstration that you were 10 looking for? 11 A (Donovan) That's correct. 12 MR. TRAFICONTE: Your Honor, that's a convenient 13 place to break. [ \ 14 MR. DIGNAN: Mr. Traficonte, if you have time to
% -l ;
15 take a look at that draft order. 16 MR. TRAFICONTE: I'll do it right now, if you want
, 17 me to.
18 JUDGE SMITH: What's happening? 19 MR. DIGNAN: If Your Honor will recall, I made a 20 commitment that we would draft an order for the Board's 21 signature and show it to Mr. Traficonte first on those
~
22 contentions which are being dismissed for lack of 23 prosecution. 24 We have put together a form of order which'I have 25 supplied to Mr. Traficonte and I was asking him if he can i 1
,G f k ,) Heritage Reporting Corporation j (202) 628-4888 1
l
22502 1 okay, if he can't, we'll correct it any way he wants. 2 MR. FLYNN: Before we break 1 would like to 3 discuss briefly tomorrow's schedule. 4 We had hoped that we would be done today. 5 JUDGE SMITH: Now does any of this have to be done 6 on the record? Can we excuse -- i 7 MR. FLYNN: We could do this off the record. 8 JUDGE SMITH: Is there anything further that needs 9 to be done on the record tonight? 10 MR. DIGNAN: Well, Your Honor, can I present this 11 to you then. Mr. Traficonte has reviewed this form of i 12 order. I have the original and three copies. 13 JUDGE SMITH: You're on the record. 14 MR. DIGNAN: I have the original and three copies. 15 JUDGE SMITH: Do you want to sail it over to us. 16 MR. DIGNAN: I'll walk it up after I speak.
. 17 I'm at your pleasure as to whether you would like 18 us to take the original and forward it down to the docket 19 clerk or what you want done with that.
20 JUDGE SMITH: Let me see? What have you got? , 21 (Document proffered to Board.) 22 MR. DIGNAN: The purpose being to reflect the ' 23 discussion that was held with Your Honor concerning the 24 motion to dismiss certain contentions and the agreements 25 reached with respect thereto. Heritage Reporting Corporation (202) 628-4888 l _ _ . _
22503 1 JUDGE SMITH: Does'this meet -- O- 2 MR.'DIGNAN: John?
- 3- MR. TRAFICONTE: I'm sorry.
4- Yes, it does, Your Honor. 5' JUDGE SMITH: There was given to me this order 6 dated May 23rd, 1989 as to which.this has no objection. 7 MR. TRAFICONTE: I have.no problem with the form. 8 of the order, that's right. 9 JUDGE SMITH: And you don't oppose it? 10 What is it that you are agreeing to again? 11 MR. DIGNAN: What occurred was, if you recall. 12 JUDGE SMITH: You agree that this is the accurate 13 reflection of the facts? [ 14 MR. TRAFICONTE: Yes. - \s 15 JUDGE SMITH: Okay. 16 MR. TRAFICONTE: It's a Board order, so I don't
. 17 necessarily have to agree with it. But I do believe --
18 JUDGE SMITH: I haven't signed it.yet. 19 Let me read it here. 20 (Pause) 21 MR. DIGNAN: Your Honor --
. 22 JUDGE SMITH: The difficulty I have is, I want to 23 know'if Mr. Traficonte agrees that the transcript pages are 24 correct and that the contentions at issue are correct?
25 Because I haven't gone back to confirm that this was the Beritage Reporting Corporation (202) 628-4888
22504 1 subject matter of our discussion. 2 MR. TRAFICONTE: I can confirm that the 3 contentions are correct. 4 I have not had the opportunity to go back -- 5 MR. DIGNAN: The reference is to 22079 and 80 of . 6 the transcript. 7 Are we still on the record? 8 JUDGE SMITH: Yes. 9 MR. DIGNAN: The colloquy that is referred to, 10 Your Honor, went like this. After Mr. Trout had indicated 11 what he wanted, you said: "All right. You want them" -- 12 Mr. Trout: "We want them withdrawn. They are not 13 being litigated, they should be withdrawn." 14 Judge Smith: "They are not going to withdraw 15 them. They are going to make us dismiss them." 16 Mr. Trout: "All right. Then we want them 17 dismissed." 18 Judge Smith: "If they are not going to, all right. l 19 We will dismiss these contentions for want of prosecution or 20 however you want. Does that make you feel good? I mean, 21 you are not going to dangle a contention around if you are 22 not going to prosecute and not going to withdraw, so we will , ! 23 dismiss it on that basis if that's what yr u want. I mean, 24 if that's acceptable to you." 25 To which Mr. Fierce replied: "We did not want to l Heritage Reporting Corporation (202) 628-4888 Oli l 1 l
22505 l' withdraw them, thatd's correct. " 2 Judge Smith: "But you don't object to.their 3 dismissal?" j 4 Mr. Fierce: "That's right." 5 And then you said: "So we dismiss them, whatever 6 they.are.. They are the subject matter of that motion." 7 JUDGE SMITH: I have signed the order.
. 8 I think it might be a good idea to just go' ahead 9 and bind the order. In addition to your normal service, 10 let's bind it into the transcript at this very point. Just 11 for case of understanding.
12 I'm signing two versions of it. One for you to 13 serve and one to put into the transcript. 14 Donna, are you still on the record? 15 THE REPORTER: Yes. 16 JUDGE SMITH: At this point we.will bind in the
., 17 Board's order of May 23rd, 89.
18 (The' Boards order for 19 dismissing contentions and 20 bases follows:) 21
22 23 24 25 Heritage Reporting Corporation (202) 628-4888
)
i I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O1 ATOMIC SAFETY AND LICENSING BOARD
. Before Administrative Judges: I Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Kenneth A. McCollom .
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY OF )
NEW HAMPSHIRE, et al. ) (Offsite Emergency
) Planning)
(Seabrook Station, ) Units 1 and 2) )
) May 23, 1989 ORDER (Dismissina Contentions and Bases)
The Board has reviewed Applicants' motion to dismiss certain Joint Intervenor Contentions and Bases for abandonment and the Massachusetts Attorney General's response to that motion.1 We have heard both psrties explain their positions, and it is : lear that the parties have agreed on which contentions the Attorney General is no longer . Contesting. II. 21294-97 (May 16, 1989); 22079-80 (May 19,
~
1989). Therefore, because the Interveners have failed to 1 " Applicants' Motion to Dismiss Joint Intervenor Contentions and Bases that Have Been Abandoned" was filed on May 1, 1989. The Attorney General filed his response,
" Massachusetts Attorney General's Opposition to Applicants' Motion to Dismiss Joint Intervenor Contentions," on May 11, 1989.
ORDER.NH
q? et J
- 1 1
i
~date to prosecute them and stated their intention not to. j prosecute them, the Board dismisses JI Contentions 38, 27 Basis E, 45 Basis B, 2 Basis H, and MAG EX-17.
FOR.THE ATOMIC SAFETY AND
+ -
LICENSMG BOARD y /#/ W / Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Boston, Massachusetts
.May 23,-1989 O
( - - _ _ - -
7 22506 1 JUDGE SMITH: Anything furthet on the record 2 tonight? 3 (No response) 4 JUDGE SMITH: Nothing on the record. 5 We are adjourned until 9:00 a.m. 6 (Whereupon, at 4:55 p.m. the hearing was adjourned 7 to reconvene tomorrow morning, at 9:00 a.m., Wednesday, 8 May 24, 1989.) 9 10 11 12 13 14 15 , 16 1 17 l 18 19 i 20 21 22 23 24 25 1 l Heritage Reporting corporation (202) 628-4888 1
( ) CERTIFICATE Q1 This is to certify that the attached proceedings before the United' States Nuclear Regulatory Commission in the matter ( [ of: Name: Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2) Docket No: 50-443-OL 50-444-OL (Off-site Emergency Planning) Place: Boston, Massachusetts Date: May 23, 1989
/
i ( were held as herein appears, and that this is the original i \-. transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and,
. thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
/S/ , , , .Y_ . . . -
(Signature typed) : Donna L. Cook Official Reporter Heritage Reporting Corporation n ms HERITAGE REPORTING CORPORATION (202)628-4888 1
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