ML20247M947
| ML20247M947 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/30/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8722 ASLBP, OL, NUDOCS 8906050199 | |
| Download: ML20247M947 (157) | |
Text
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N' UNITED STATES NUCLEAR REGULATORY COMMISSION RG \\A_
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
)
Docket Nos.
PUBLIC SERVICE COMPANY OF
)
50-443-OL NEW HAMPSH1RE, et al.,
)
50-444-OL
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OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING EVIDENTIARY HEARING
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Pages:
23148 through 23290 Place:
Boston, Massachusetts o
Date:
May 30, 1989
./k D \\ o HERITAGE REPORTING CORPORATION s
Yp: fS'u b OBidalReportes p6W,Jr 1229 L Street, N.W., Sake 400 l
go Waddagton, D.C. 20005 (292)6 M 8906050199 890530 PDR ADOCK 05000443 T
PDC i:
23148 f
l UNITED STATES NUCLEAR REGULATORY COMMISSION 1
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
)
Docket Nos.
PUBLIC SERVICE COMPANY OF
)
50-443-OL l
NEW HAMPSHIRE, et al.,
)
50-444-OL
)
OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING EVIDENTIARY HEARING
- Tuesday, May 30, 1989 Auditorium Thomas P.
O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts The above-entitled matter came on for hearing, pursuant to-notice, at 1:02 p.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
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23149
' APPEARANCES:
For the ADolicant:
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.
Ropes & Gray.
One International Place.
Boston,. Massachusetts 02110-2624 For the.NRC Staf$1, 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 Emeraency Manaaement Aaencv:
H.
JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ..
FeJeral Emergency Management Agency F00 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.
l PAMELA TALBOT, ASST. ATTY. GEN.
MATTHEW BROCK, ESQ.-
LESLIE B.
GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 l
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23150 APPEARANCES:
(Continued) j1 For the State of New Hamoshire:
GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN.-
State of New Hampshire 25 Capitol Street y
Concord, New Hampshire 03301 For the Seacoast Anti-Pollution Leacue:
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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 Amesburv:
BARBARA J... SAINT ANDRE, ESQ.
Kopelman and Paige, P.C.
.i.
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 Newburyport:
BARBARA J.
SAINT ANDRE, ESQ.
JANE O'MALLEY, ESQ.
Kopelman and Paige, P.C.
77 Franklin Street
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Boston, Massachusetts 02110 1
Heritage Reporting Corporallon (202) 628-4888
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-23151' APPEARANCES:
-(Continued)
For the Town'of Newburv:
i
-R.
SCOTT HILL-WHILTON, ESQ..
Lagoulis,. Clark,-Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950
'For the Town of Salisburv:
CHARLES P.. GRAHAM, ESQ.
Murphy.,and Graham 33 Low Street Newburyport, Massachusetts '01950
.For the Towr of West Newburv:
-JUDITH H. MIZNER, ESQ.
Second Floor 79 State Street Newburyport,. Massachusetts 01950 For the Atomic Safety and Licensino Board:
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RODERT R.
PIERCE, ESQUIRE Atomic Safety and Licensing Board.
U.S. Nuclear Regulatory Commission Washington, D C.
20555-Beritage Reporting Corporation (202) 628-4888 I-
- s 23152 I E R E X-HITNESSES:
DIRECT CROSS REDIRECT RECROSS EKAM Panel No. 23:
John W. Baer Anthony M.
Callendrello-George R.
Gram by Ms. Doughty 23154 23192 by. Judge Cole-23176 by; Judge McCollom 23182 by Mr. Lewald 23184 by Mr. Brock 23185 Panel:
Howard Saxner (prefiled)
Gerald St. Hilaire by Ms. Greer 23198 by Mr. Cook.
23210 by Mr. Bachmann 23257
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EXHIBITS:
IDENT.
REC.
- REJ, DESCRIPTION:
Massachusetts Attorney General:
107 23188 23191 Bus providers (3 pages)
Applicants:
84 23216 23217 Seabrook Station Bus Purchase / Lease RFP (An Amended form will be submitted later) i
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i' 23153 1 H P_ E X INSERTS:
PAGE Gerald.St. Hilaire and Howard 23209 Saxner Testimony, and rejected Barbara Davis Testimony.
Applicants'~ Cross-Examination 23290 Plan of-Testimony of Gerald St.
Hilaire and Howard Saxner:
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1 REBUTTAL NO.423 PANEL - CROSS 23154 i
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1 E B 2 C E E D 3. N G E 1'.
2 JUDGE SMITH:
Good afternoon..
3-Is'there any preliminary business?
4 MR. LEWALD:
We have none.
5 Whereupon.
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.6 JOHN W.
BAER.
l 7
ANTHONY M.
CALLENDRELLO 8
GEORGE R.
GRAM, II 9
having been previously duly sworn, resume'd the witness stand
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10 herein, and were examined and further testified as follows:
11 CROSS-EXAMINATION (Continued) l 12 BY MS. DOUGHTY:
13 Q.
Gentlemen, I would like to just briefly revisitL 14 two little points that we covered last week before getting
(.'
15 into new areas.
16 First of all, Mr. Callendrello, do you have the 17 Extent of Play Agreement available :for your inspection?
18 A
(Callendrello)
Yes, I do.
19 0
I'm looking at objective 18, section No. 3.3.3.
20 A
(Callendrello)-
I've got that.
21 Q
About midway down the page"it says, " Extent of 22 Play."
And then shortly thereafter there is a comment 23 section?
24 A
(Callendrello)
Yes.
25 Q
Looking at that, does that refresh your l
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recollection of how many special needs individuals were 2
identified in the New Hampshire side of the EPZ?
I 3
^
(Callendrello)
Yes, it does.
4 It indicates 265 individua1L.
And all 17 5
communities have been identified as needing some form of j
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special assistance.
7 I thought your question on Friday went to how many 8
during the exercise.
And, of course, in the exercise not 9
all 17 communities were evacuated, no that number would have 10 been somewhat less than the 265 because it was just fewer 11 communities than alz 17.
12 Q
Certainly.
13 But we were discussing the reasons why there was
{
14 no training of bus drivers to assist special needs 15 individuals.
16 And if I recollect your testimony it's because 17 there will be sufficient ambulances?
That the bus drivers 18 don't need training?
19 A
(Callendrello)
No.
No, that wasn't -- if that 20 was the impression I conveyed that is incorrect.
21 The people who are preidentified will receive the 22 type of vehicle that their impairment says they need.
It 23 could be an ambulance or it could be an evacuation bed bus 24 or it could be a wheelchair van.
Or it may mean simply a 25 standard bus.
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So it would be whatever type of transportation is 2
appropriate' for their special need.
3 Q
Right..
4' Now, it's only thefambulance drivers that have had-l, 5-training in. assisting lspecial needs people into the vehicles
's and that were exercised'in that kind of function during,the-7 exercise; is'that correct?
8 A
(Callendrello)
There's two parts to that 9
question.
10 0
Okay.
11 A
(Callendrello)
Let me just take --
12 0
.Ste.rt with the training part and then you can get 13 to the exercise part~ sequentially?
14 A
(Callendrello)- As far as the training goes --
15 well,' ambulance and wheelchair van drivers'would have that 16 kind of a skill because of their normal day-to-day' provision 17 of service.
18 As'far as the bus drivers, I would have to check 19 with Mr. Eaer as to whether they receive'any special 20 training.
21 A
(Baer)
I don't know the answer to'that question
. 22 just offhand.
I would have to inquire.
23 A
(Callendrello)
I don't suspect that they would 24 receive any special training on how to load special needs 25 individuals because their use in the RERP, New Hampshire 4
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1 REBUTTAL NO. 23 PANEL - CROSS 23157 I
RERP would not require that they assist special needs 1
2 individuals-who couldn't get on to a bus.
Because, again, 3
that wouldn't'be the type of vehicle that would be 4
dispatched for those individuals.
c 5
Q So is it your. testimony that those 18 ambulances 6
are going to be sufficient for all these people,.all the-
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7 people within this pool that need assistance boarding a 8
vehicle?
9
'A (Callendrello)
No.
No, it's not my testimony.
10 As I said, there's a mix of vehicles that are 11 deployed for special needs individuals.
Ambulances are onlyL 12 one part of that mix.
There are the other wheelchair vans, 13 evacuation bed buses and regular buses.
14 Q
Do the drivers of wheelchair vans and the 15 evacuation bed buses get specialized training?
16 '
And how -- well, I'll get to that in a minute.
17 A
(Callendrello)
I would have to review the
-18 training. matrix in'the New Hampshire plan; I don't know 19 offhand.
20 A
(Baer)
I don't know the answer-to that either.
21 Q
Just to summarize this; it still remains your 22 testimony that no bus drivers are expected to assist special 23 persons on to the buses?
-24 MR. LEWALD:
I'm going to object to that, Your 25 Honor.
This is the third time she has gone over --
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JUDGE SMITH:
The. fourth.
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2 MR. LEWALD:
The fourth.
3 JUDGE SMITH:
Four that I can recall.
4 MR. LEWALD:
Asked and answered.
5 JUDGE SMITH:
Well, she just wants to move on to 6
another point and she wants to make sure that that's nailed-
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7 down, as I understand it.
8 MS. DOUGHTY:
Right.
9 THE WITNESS:
(Callendrello)
Yes.
It's my 10 testimony that bus drivers would not need to provide any 11 type of transportation assistance for special needs 12 individuals other than what individuals would normally get 13 for boarding a bus.
{-1 They would not be expected to' help or need to take 14 15 people who are in wheelchairs or bedridden and place them on 16 buses because those type of individuals would get a form of 17 transportation more appropriate for their needs.
18 BY MS. DOUGHTY:
19 Q
Now, I would like to move back to the emergency 20 worker facility, just one little point having to do with the 21 decision not to test the emergency worker facility.
22 That is expected to be staffed on a more than 12-23 hour basis; is that correct?
I 24 A
(Callendrello)
Yes, that's correct.
l 25 0
And in the New Hampshire side of the plan, as I
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1-recall, the reception centers themselves are'only supposed 2
to be staffed for 12-hours; is that the provision under the 3
plan?
4.
A (Ca11endre11o)
No.
5 That's one of the issues that was identified in 6
the exercise by FEMA.
It was a planning. issue regarding --
7 I think it was regarding the reception centers.
8 There is a provision in the plan that talks about 9
staffing for protracted operations and mentions the 30 New 10 Hampshire National Guard individuals who can assist in 11 providing staffing, as well as the New England Compact 12 individuals to provide supervisory personnel.
13 (Witnesses confer.)
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14 THE WITNESS:
(Callendrello)
Mr. Gram has 15 corrected me, and I now recall that.
The issue was 16' identified shortly before the exercise and there was a pen 17 and ink change, a red line change to the plan and procedures 18 that were demonstrated in the exercise and then formalized 19 into a revision after the exercise.
20 BY MS. DOUGHTY:
21 Q
So was it that FEMA found the lack of planning for 22 staffing for 24-hour capability at the reception centers not 23 adequate?
24 A
(Callendrello)
No, no.
25 It's on page 200 of the exercise report as "other Heritage Reporting Corporation (202) 628-4888 l
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REBUTTAL NO. 23 PANEL - CROSS 23160 1
issues."
And the issue was -- the evaluation item was.
2
" Adequate arrangements do not exist for 24-hour continuous 3
operation staging areas and reception centers.
4 The recommendation was: develop arrangements; 5
revise plans; train staff.
6 And the corrective action is corrected: the l
7 Division of Public Health Service has revised their staffing 8
roster to indicate that 30 personnel from the New Hampshire 9
National Guard will be available to supplement supervisory 10 staff at the Hampton Center."
I think Mr. Donovan testified 11 that should be " reception center."
12
" Additional steps were added to staging area 13 procedures to ensure continual 24-hour operation."
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14 Q
But this is a change of recent vintage just before
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15 sometime -- not that long before the exercise it was changed 16 in the plan that there needs to be 24-hour staffing 17 capability for the reception centers?
18 A
(Callendrello)
Yes.
19 That was an issue that Mr. -- I don't know if it 20 was Mr. Thomas or Mr. Donovan raised as an issue just prior 21 to the exercise.
The state made a commitment to take 22 corrective action.
The plan was modified, not a formal 23 revision, but the plan was modified.
It was demonstrated in 24 the exercise and then the revision was formalized in a post-25 exercise revision to the plan.
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REBUTTAL NO. 23 PANEL - CROSC 23161-1-
Q Now I would like to talk about objective 34, which' 2
is the 24-hour staffing. capability, in regard.to the local 3
communities.
4 And it's referred to at.page 199 of the -- 198 L
5 through 200 is generally that objective section in the FEMA 6
report.
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7 JUDGE SMITH:
Where are you on your cross-8 examination plan?
9 MS. DOUGHTY:
I'm on No. 11 now.
I just did two 10 little points and then I revisited two little areas and then 11 I jumped back to 11.
12 BY MS DOUGHTY:
13 Q
Now, as I recall the Extent of Play didn't require
{'
14-any shift changes for the half dozen nonparticipating communities, did it?
lo A
(Callendrello?
Just so I'm clear.
I understand 17 your question is: did it pertain to a shift change as it 18 affected the six-nonparticipating communities?
And that's l
19 not a correct statement.
20 There was-a shift change of the local liaison
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21 officers and a second shift established.
And those local 22 liaison afficers would have been the persons responsible for 23 providing compensatory actions for those nonparticipating 24 municipalities.
25 Q
But in order to do that they also had to have
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staffing;at the local transportation staging areas to carry-A:
'out the requests.for transportation and that was not second-
?
.2 4
'3L shifted, was it?
14 A
.(Callendrello)
Therefwas a demonstration of the 5-capability _to' establish: shift, although the' change-out of 6-
. personnel did not occur.
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7
- Mr. Baer can probably amplify.on what happened at" 8
the local' staging areas.
r 9.
A (Baer)
For the local transportation staging' areas 10-in the six communities that you're referring to,.there was 11-not an actual demonstration of a physical shift change in l12' those communities and the Extent of Play did not include 13' actual shift change in those-communities.
14 However, there were rosters of personnel presented f(
15 to the FEMA evaltat ars at the state transportation staging 16.
area that showed that there were more than sufficient 17 personnel to provide for a complete two shift operation.
18 For example, there were rosters that were r.sde.
19 available at the. state staging area showing 58 sheriff's 20 department.of personnel from the Rockingham County Sheriff's
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21 Department and the Hillsboro ' County Sheriff's Department.
22' In addition to that there was a roster of 60 civil 23 air patrol' personnel that were available.
And the staging 24 area supervisor then explained to the FEMA evaluators how 25 that protracted staffing would be managed.
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1 Q-Now, two of the participating'localicommunities 2
didn't demonstrate shift changes; is that correct?
3 A
-(Callendrello)- That's correct.
4 That was indicated on page 199 of the FEMA L3 5
' exercise report.
They did not demonstrate the physical 6
change-out1of personnel.
They did have a list of personnel
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7 for the shift change, but they didn't have individuals come 8
in to replace first shift individuals'for those key 9
positions.
10 Q
And there'were other communities that were able to 11 partially staff the EOC-in the second shift; is that not 12 correct?
13 A
(Callendrello)
As far as providing actual
[{
14 personnel for-a-second shift there were some. communities 15 that only partially staffed the second shift.
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Q I guess I'm going to move into a new area, and 2
this-is.the area'of. host facility receipt of evacuees from 3
special facilities.
And at page, I believe it's page 61 of 4'
your testimony that we'll want to refer to.
5 The third sentence down under Subsection B on page 6
61 states that the actual receipt of special' facility 7'
evacuees by the host facilities was not demonstrated.
8 Is that correct?
9 A
-(Ca11endre11o)
Yes, it is.
10 Q
Mr. Callendrello, could you explain to me the 11 rationale again for not feeling it necessary within the 12 scope of the exercise to demonstrate that capability?
13 A:
(Callendrello)-
The rationale is explained in the
{
L 14 very next sentence, and I can read that.
15 "These host facilities are hospitala and nursing I
16 homes which receive hospital patients and nursing home 17 residents daily."
18 So, therefore, it was felt that it was not 19 necessary to exercise what is a normal function, normal 20 nonradiological emergency response plan function for these
)
21 facilities.
22 Q
Now, on the New Hampsh3re side of the zone, aren't o
23 the host receiving facilities to monitor, and if necessary, 24 decontaminate the special facility evacuees?
25 In other words, a nursing home whose patients are
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transferred to a receiving nursing home has those' patients' j
k.
4 2
monitored and decontaminated at the receiving facility.
3 Is that not correct?
4 A-(Callendrello)
No, that's not correct.
5 The plan, as'it currently stands, calls for 6
reception center personnel to go to the host special 7-facility to monitor individuals.
Of course, this Board, in 8
its decision on the New Hampshire plan, indicated that for 9
two of the communities additional arrangements needed to be 10 made to provide for monitoring, using other than normal 11 reception center personnel, or supplemental personnel in 12 addition to the existing reception center personnel.
13 Those arrangements are being established now and
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14 that'has not been established.
15 So the plan as exercised was to have reception 16 center personnel monitoring host special facility 17 individuals.
18 Q
Okay.
Now that would involve the need for 19 certain facilities at the host facility, would it not?
20 A
(Callendrello)
No, it would not.
It would call 21 for the monitors, the reception center personnel, to go to 22 the host facility and monitor those individuals.
That could 23 be done in the vehicle.
That could be done at the entrance 24 to the facility.
It wouldn't require any special-25 facilities.
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REBUTTAL NO. 23 PANEL - CROSS 23166 f-1 Q
Now what if certain individuals were -- let's.
2 hypothesize -- certain of the individuals were found-3 contaminated.
4 Wouldn't they need to be brought into the facility 5
for decontamination in a separate manner from the other 6-noncontaminated people to avoid cross-contamination?
~
7 A
(Callendrello)
Again, not necessarily.
8 I just don't recall offhand what the provisions 9
are for the decontamination of evacuees who arrive at host 10 special facilities.
I don't recall whether there is to be
- 11.
an attempt at the facility, or whether they are go to a 12 MS-1 hospital.
I don't recall sitting hero richt now.
13 Q
Now-at the reception centers there is an 14 elaborate -- well, maybe that's not a good characterization.
15 But there is an attempt made to route the noncontaminated 16 evacuees through the facility separately from the 17 contaminated evacuees.
18 Is that not true?
19 A
(Callendrello)
Yes, that's true.
20 Q
And that might pose a difficulty for a receiving
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l 21 facility; isn't that correct?
22 A
(Callendrello)
I don't know.
I don't think it 23 would, but I don't know.
24 Q
But it's not something that they do in the normal 25 course of receiving hospital patients and nursing home f('
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REBUTTAL NO. 23 PANEL - CROSS 23167 1
residents as.they normally would, is it?
2 A
(Callendrello)
No.
That's certainly something 3
they don't normally do in receiving those.
4 Again, it would be the reception center personnel 5
who arrived at that facility who would establish the 6
monitoring and decontamination function.
It wouldn't be the i
7 facility staff.
And the reception center personnel are 6
trained in performing those functions.
s Q
They would need to interface with the regular 10 staff, however, isn't that correct?
11 A
(Callendrello)
I'm sorry, I missed the beginning 12 of your question.
13 Q
These reception center people wo:21d need to obtain 4 -
14 cooperation from the regular staff and learn where things 15 are and obtain assistance from the regular staff.
16 In other words, they would have to show some 17 capability of integrating their respective functions, would 18 they not?
19 A
(Callendrello)
I think, in the ccarse of 20 responding to the emergency and the receipt of the patients, 21 the host facility staff would be involved in the receipt of 22 the patients.
23 I don't think they would be involved in monitoring j
l 24 and decontamination.
But once that was done, the reception j
25 center personnel would hand off the patient, I'll say, into Heritage Reporting Corporation S
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' CROSS 23168 L1-the staff that would'be providing the care of the' patient.
'2'
'A' (Baer)
Might.I also add to that?- That that-
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L 3L function at these facilities would' continue to be under the
.4 supervision of'the Division of Public Health Services,-and o
J 5
consequently.
persons, who:would be sent to'that 6-facility 1to carry out that function, would still receive 7
'their; direction from the Division of Public Health' Services.
8 Q
Now some of these facilities are to receive -- for
~9 example, some!of the receiving nursing homes receive 10 virtually the. entire population of the sending nursing home.
11 Is that not correct?
12 (Witnesses confer.)
13
-THE~ WITNESS:
(Callendrello)
-I don' t > know - theJ 14L answer to that.
I'm just checking with Mr.-Baer to see if 15 he knows that.
16-(Witnesses confer.)
~ 17 THE. WITNESS:
(Callendrello)
No, I don't know the-
~
18 answer to that.
19 BY MS. DOUGHTY:
20 Q
Well, in any event, there could be a fairly large 21 number of patients showing up to be received by either one 22 of these host hospitals or host nursing home facilities all 23 at once.
24 Isn't that true?
25 A.
(Callendrello)
I'm just trying to review mentally
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JL Your term doesn't have much specificity,." fairly 3
large number".
4 I don't believe there are -- I just don't recall 5
the sizes of the facilities that were evacuated.
6 Q~
Yes, I'm afraid I can't'give you a mo., specific 7
number.
But the Rockingham County Nursing Home is a fairly.
8-large facility, is it not, on a nursing home scale?
9 A
(Callendrello)
Yes.
I'd say it's on the order of 10-200 patients.
11 Q
And they may be split among say three to four 12-receiving facilities.
But in the normal course of the 13 cperation of a hospital or nursing home, would it be 14 customary to receive something on the order of 50 patients 15 at once?
16 '
A (Callendrello)
No, I don't believe it is, in 19 terms of the normal course of business.
But in terms of 18 receiving patients in the event of,other types of emergency
- 1. 9 situations, it certainly is possible.
20 Q
So the fact that these host facilities receive
]
I 21 hospital patients and nursing home residents daily, as your 22 testimony states, doesn't really indicate that they have the L
23 capability of receiving large numbers without proper prior 24 exercises, does it?
25 A
(Ca11endre11o)
I think it does.
They still will
-f Heritage Reporting Corporation (202) 628-4888 l
REBUTTAL NO. 23 PANEL - CROSS 23170.
I'
. 1l be handled at some given rate.
The fact that 50 show up, if
,(
2z that's the number, means that some will have to wait while 3'
the others are unloaded at whatever rate the facility can 4
' support using a' staff that the' facility has e'ither available 5
to'it or has called in.
6 Again, I might add, these' facilities are well 7
outsido the emergency planning zone so that the immediacy of
' 8 their transfer really has to do with the patient's own care, 9
not a radiological safety issue.
10 0
There could be complicating factors like needs for 11 medication and so forth.
12 A
(Callendrello)
Right.
And I would think that 13 these. facilities would triage these patients _as they do for 14
'other -- certainly hospitals triage patients, and'I would
(
15 expect that-they would do it for those patients that came to 16 them from-other hospitals, taking the people that needed 17 assistance the most first.
'18 Just to add one thing to my answer.
I was 19 thinking only in terra of nursing homes when you asked about 20 do these facilities prectice receiving a large number of 21 individuals.
22-I believe these hospitals also participate in mass.
23 disaster type drills where they simulate a plane crash or a
'24 school bus overturning, and they receive a large number of 25 individuals on a much more critical basis than would be in Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 23171 1~
the event-of an emergency at Seabrook.
2 In other words, they would receive a large number 3
of people who have injuries and needed to be treated in some 4
medical fashion prior to being admitted.
5 Q-Do you really have precise knowledge as to how 6
many people those kinds of drills anticipate receipt of?
7 A
(Callendrello)
I know in the event,of the drills 8
that we've held within the EPZ, for example, Portsmouth 9
Hospital and Exeter Hospital, I think Portsmouth Hospital 10 typically has a scenario that involves a plane crash from 11 Pease Air Force Base.
And usually the numbers of 12-individuals are in the dozens, although I can't be certain 13 of the exact number.
14 Q
Okay, but this kind of disaster scenario planning
~
15 would not be anything that a nursing home would practice on 16 a regular basis, would it be?
17 A
(Callendrello)
I don't know.
18 Q
I would like to.ask you to turn to Objective 16 in 19 the FEMA document, which I think is at page 163, if I'm not 20 mistaken.
21 A
(Callendrello)
I've got that.
22 O
Objective 16 reads:
" Demonstrate the ability to 23 make decisions, to recommend the use of KI to emergency 24 workers and institutionalized persons based upon 25 predetermined criteria, as well as distribute and administer f
Heritage Reporting Corporation (202) 628-4888
i I
u REBUTTAL NO. 23: PANEL - CR)SS 23172 1
- it'once-the'decisionJis made, if'necessary,'.by radioiodine
~
y; f
'2-release ~."~
10 Is.that'a.correctLreading-of that objective?
_Callendrello)~ Yes, it is.-
(
4' A-5-
0 Okay. 'And it says " emergency workers and 6'
institutionalized persons",.not "or institutionalized 7
persons", does it not?
8' A
(Callendrello)
Yes, it does.
9
.Q Wouldn't that suggest that they want a. test of-
'10'
.both classes of individuals?
11 A-(Callendrello)
Well, if you are asking'for myf 12 interpretation of FEMA's obj6ctive, my interpretation is to
.13 make -- to demonstrate the decisionmaking process,-the 14' appropriate decisionmaking process for' emergency workers and j
15 the appropriate decisionmaking process for institutionalized 16-persons.
I 17 In the case of the State of New Hampshire, it-is 18-the same decisionmaking process.
It's the same 19 calculation, the same' evaluation of dose, and the same 20 overall - 'well, it's the same overall assessment _-process.
21-So that in that case, by demonstrating the 22 decisionmaking process once, you have demonstrated both 23 aspects of the KI decisionmaking.
24 Q
But aren't there some important differences in the 25 administration of KI for emergency workers versus f
Heritage Reporting Corporation (202) 628-4888 1'L
t:
REBUTTAL NO. 23 PANEL - CROSS 23173 1
institutionalized persons?
J 1
2 For example, an emergency worker is-able to 3
administer the potassium iodide to him or herself.
4-Is that not true?
L..
5 A
(Callendrello)
The question. included a couple of l-6
'different parts.
The first part was aren't there some 1
l 7
important differences, and then'you asked me if I agreed 8
with your latter statement.
9 I do agree with your latter statement that the 10 emergency worker can ingest KI by him or herself.
11 Q
Whereas in a nursing home or other special 12 facility, that may need to be a process that's asoisted.'
13 Is that not correct?
14 A
(Callendrello)
That's correct.
{
15 And again,'these facilities normally do provide 16 medications to their patients.
17 O
Also, in the special facilities, the 18-administration of potassium iodide decision would consider a 19 factoring in of the sheltering capacity of the structure, 20 would it not?
21 JUDGE SMITH:
Did you understand that question?
22 THE WITNESS:
(Callendrello)
No, I don't.
23 MS. DOUGHTY:
Well, let me rephrase it then.
24 BY MS. DOUGHTY:
25 Q
The decision as to whether or not to administer g:
Heritage Reporting Corporation g
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potassium. iodide is related to'the protected-thyroid dose 2
that the people housed within might receive if they don't 3,
.get the, potassium iodide.
4
'Is that not correct?
']-
'5 A
.(Callendrello)
I'm going to have to turn this'one 6
to Mr. Baer.
7
. Q-Okay.
8 A
(Callendrello)
He's much more familiar with that 9
process than I am and in fact observed it during tho 10 exercise.
11.
Q Mr. Baer, did you get'that question?
12-A
~(Baer)
I think, as I understand your question,11s 13-
.the decision process or do the decision criteria used by the f.
, 14 New Hampshire Division of Public Health Services for 15 adminstration of KI, or for. recommending administration of 16 KI t'o persons in institutions consider the shelter factor of
'17 that institution.
18-And my answer is, subject-to checking the:
19 procedure more closely, but as I recall'the procedure does 20 not consider that, the shelter factor.
21 Q
I see.
22 Now on the Massachusetts side of the EPZ, it's'the 23 route guide that's to bring the potassium iodide to the 24 special facility.
25 Is that not correct?
Heritage Reporting Corporation (202) 628-4888 r
L/SBUTTAL NO. 23-PANEL'- CROSS.
23175 i
1 A
(CallbNarello). Yes,7that's true.
j 2
O Now on'the New Hampshire side,-there are no route 1
3 guides.
4 Is that true?
5 A
(Callendrello)
That's correct.
6 Q
Now who is to bring that-potassium iodide to the 7
special facility?
8 A
(Baer)
It would be required.
The potassium 9
. iodide is stored at the facility.
It's redistributed to 10 the facility.
11 Q
Has that redistribution yet occurred?
12 A
.(Baer)
I believe that it has.
13 A
(Callendrello)
Yes, it has.
. {.
14 JUDGE SMITH:
What's the shelf life of potassium 15 iodide?
16
- THE WITNESS:
(Callendrello)
I believe it's three 17 years.
It's changed, it's improved.
It used to.be two 18 years and I think it's now three years.
19 MS. DOUGHTY:
I guess that concludes my 20 examination, Your Honor.
21 JUDGE SMITH:
Does the Staff have examination?
22 MR. BACHMANN:
The Staff has no cross-examination..
'23 JUDGE SMITH:
Do you have any questions?
- 24 JUDGE COLE
Just one or two questions, gentlemen.
25 l
Heritage Reporting Corporation (202) 628-4888
23176-f
~
1 EXAMINATION BY JUDGE COLE 2
' JUDGE COLE:
Mr.. Gram, at the time of the exercise
- 3 in. June 1988, was your knowledge of the exercise relatively 4
complete?
5'
.THE= WITNESS:
(Gram)
I guess I'm not real sure 6.
what the question.means.
7 If I understood everything that was going to 8
happen during the exercise?
9 JUDGE-COLE:
Yes.
10 THE WITNESS:
(Gram)
Yes, it was.
11 JUDGE COLE:
Were there any parts that'were known 12 only to FEMA and not to you?
13 Were there any surprises?
14 THE WITNESS:-
(Gram)
I would say the morning of
.15 the drill there were a couple of last minute Extent of Play 16 changes that were-basically surprises, more to FEMA than 17 they were to us, because we found out about them the day 18 before.
19 One had to do with taking milk samples at a dairy 20 farm.
And the farmer had an emergency and he wasn't going-21.
to be'there, so we had to change locations.
So that's the 22 only case.
,3 JUDGE COLE:
So that was an unintentional event.
2 24 THE WITNESS:
(G. ram)
Yes.
25 THE WITNESS:
(Callendrello)
Your Honor, I just
("'
3' Heritage Reporting Corporation o
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23177 1.
may. add that,the FEMA control cell served as'a: simulated, 2.
nonparticipating government, simulated the Commonwealth of 3
4 So to the extent that they were playing those 5
representatives, the players didn't know exactly what their-6 response was going to be.
7 JUDGE COLE:
No.
My question had to do with Mr.
8 Gram's knowledge.
I was going to ask another question.
9 With respect to the players, how much did they 10 know beforehand with respect.to what the Extent of Play and 11 scope of the exercise was?
12 THE WITNESS:
(Gram)
Absolutely nothing.
13 The scope of the exercise, the Extent of Play was j
14 all very strictly controlled.
There were only 14 control 5
15 copies of the actual scenario and. Extent of Play generated
.16 for the participants that negotiated the Extent of Play.
17 Controllers'and FEMA evaluators were exposed to only their 18 portion-of the scenario and Extent of Play on two occasions:
19 on briefings prior to the drill and then all of that 20 information -- in other words, they were allowed to come
~~
21 into a room that was, you know, locked access.
They could 22 review the material.
Then they had to leave with no paper 23-work at all.
24 And then the Extent of Play, controller messages, 25 time lines were all handed out the morning of the drill.
We
('
Heritage Reporting Corporation (202) 628-4888
'l 23178-I k
1 startediat 5:30 that morning.
j 1
J pe 2
JUDGE. COLE:
So you were sworn to secrecy.with i
'3 respect to what took place?
4 THE WITNESS:
(Gram)
Yes.
e 5~
JUDGE COLE:
As were your counterparts in other' 6-organizations?
7 THE WITNESS:
(Gram)
Exactly.
l 8
JUDGE COLE:
All right, thank you.
9 On page 38 in.the testimony, you refer to traffic 10 control points and access control points,.and to the' 11 demonstration of TCPs and ACPs.
12 Now,'considering the fact that you make certain-13
, assumptions like, for~ example, police know how to perform-14 traffic control, just what was invcived in the demonstration
(
15' of the ability to man and operate traffic control points and 16 access control points?
17 Could you answer that, sir?
18
-THE WITNESS:
(Baer)
What was involved in the 19 actual demonstration of manning the points, or'of the entire 20 process, sir?
21 JUDGE COLE:
Well, with respect to the actual 22 traffic control and access control at the site where you are
- 23 going to do that, what actually took place?
l 24 THE WITNESS:
(Baer)
The police officer was 25 dispatched either from the Troop A headquarters, in the case i
Heritage Reporting Corporation (202) 628-4888
23179 1
of the state police, or from the local community emergency i
2 operations center, in the case of the local police officers, 3
to the designated point, or traffic control point.
4 In the case of the state, for extsple, the police 5
officer went to that point, and explained to the FEMA 6
evaluator, who met that officer there, his procedures end 7
how he would set that point up.
8 In the meantime, the New Hampshire Department of 9
Transportation actually delivered the devices, the traffic 10 control devices that would be required to establish that 11 point.
12 JUDGE COLE:
Okay.
So then you make the 13 assumption that since police know how to do that, everything g-14 he needed to perform that was there, including his own s
15 person?
16 THE WITNESS:
(Baer)
That's correct, sir.
j 17 JUDGE COLE:
And you then assumed that that then 18 was a successful test.
.19 THE WITNESS:
(Gram)
One other aspect that Mr.
20 Baer might not have elaborated on, one of the aspects that 21 the FEMA evaluators tested:
all of the traffic control 22 point manners were RERP-specifically-related activities such 23 as knowledge on dosimetry, personal dosimetry, and when they 24 are supposed to read it; and if they reach a certain limit, l
25 what the reporting-in requirements are and those kind of i
f Heritage Reporting Corporation i
(202) 628~4888
23180 1
items, also.
2 JUDGE COLE:
All right, sir.
3 Thank you.
4 5
6 7
8 9-10 11 12 13
{-
14 15 16 17 18 19 20
~
21 22 23 24 25 I
(
s, Heritage Reporting Corporation (202) 628-4888
1 23181 1
JUDGE COLE:
Now, on page 14 of your testimony, 2
about the middle of the page there is a statement:
"The 3
_ external influences, however, set the upper bound on what 4
was reasonably achievable." You're referring to, I assume, 5
the scope and Extent of Play; is that correct?
6 THE WITNESS:
(Callendrello)
Yes, sir.
~
7 JUDGE COLE:
Well, I guess it's under the category 8
of " interacted process to' determine scope."'
9 Are there any noteworthy examples of external-10 influences, particularly noteworthy?
I notice you have a 11 list of.them on pages 19 to 22, 12 Which ones were really particularly significant 13 and important?
-l 14 THE WITNESS:
(Gram)
Well, other than -- I' guess 15 the obvious one is the nonparticipation of the State of 16 '
Massachusetts and local Massachusetts communities.
17 In my mind probably the most significant issue 18 that bounded items for local communities and for state 19 resources was the fact that it was a non-real emergency, and 20 a local community activating all of their activities such as 21 local fire departments for reception centers or local police 22 departments to man all the traffic and access control 23 points.
24 JUDGE COLE; Because it wasn't an emergency?
25 THE WITNESS:
(Gram)
Because it was a Heritage Repo tir.g Corporation (202) 628-4888
.i-i.
23182 1
nonemergency situation they didn't want to participate in an
'(
2 exercise'at'the expense'of normal public safety.
3-JUDGE COLE:
Okay.
Thank you.
'4 -
On page 16 you have some examples of constraints.
5 I'm not sure about the difference between~ external-6 influences and constraints; in some cases they might be the
~
7 same.. But are there any particularly noteworthy examples.of 8
constraints as. you use the word on: page.16 at the top of the 9-page?
Referring to the level of demonstration.
10
.THE WITNESS:
(Callendrello)
I guess in reading 11 it, I don't see much distinction between the two.
12 JUDGE CC'sE:
Okay.
13:
THE WiniESS:
(Callendrello)
They really are the.
14
,same.
15 JUDGE COLE:
You agree with that, Mr. Gram?
16' THE WITNESS:
(Gram)
Yes.
17 JUDGE COLE:
Thank you.
18 That's all I have.
19 EXAMINATION BY JUDGE McCOLLOM 20 JUDGE McCOLLOM:
I would like to follow-up just
~
21-with one other question on the scenario and Extent of Play!
22 and whether it was kept, I guess I'll say, secret from those 23 players that were needing it.
24
-Did anything come to any of the three of your 25 attention that some of the information on the scenario
'y Heritage Reporting Corporation (202) 628-4888
23183 1
and/or the Extent of Play that was not supposed to have,
-2 quote, " slipped out," did slip out?
3 THE WITNESS:
(Gram)
No, sir, not at all.
4 As a matter of fact, we actually had a backup 5
scenario and a backup time line.
And we produced all of the 6
corresponding player material and. corresponding controller
~
7 material just for that event.
That if something did get 8
divulged as far as what was going to happen or what was 9-
-going to be played in a local community, we could change 10 that at the last minute.
11 JUDGE McCOLLOM:
I understand that the process was 12 set up to prevent it.
And I just wondered if anything had 13 come to any of your attention that something had slipped out 14 at all, either before, during or after the exercise?-
{
15 THE WITNESS:
(Gram)
No, sir.-
16 JUDGE McCOLLOM:
Okay.
17 That'u all.
18 THE WITNESS:
(Callendrello)
No, sir, I'm not 19 aware of any either.
20 JUDGE SMITH:
Mr. Lewald?
21 MR. LEWALD:
I have one matter.
I'm looking for a 22 transcript.
23 (Pause. )
L 24 l
25 i
(r Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - REDIRECT 23184 l'
REDIRECT EXAMINATION i
2 BY MR. LEWALD:
3-Q Mr. Gram, I would like to refer to your cross-4 examination testimony on May 25th and to that section of the 5
transcript in which you were inquired of as to how the TCPs 6
were selected in determining the Extent of Play.
~
7 And my recollection is that you.said, when 8
examined on that question, you had no present memory.
And 9
my question is: have you now refreshed your memory as to how 10 those TCPs were selected that were examined in the exercise?
11 A
(Gram)
Yes, sir, I do.
12 O
Would you tell us how they were, to the best of 13 your-recollection now?
14 A
(Grmm)
These are for New Hampshire TCPs?
15 Q
The New Hampshire TCPs?
16 A
(Gram)
They were selected in conjunction with 17 FEMA for several factors.
One was the complexity of the 18 intersection.
In other words, you just didn't'want a simple 19 crossroad.
I believe I mentioned that in my previous cross-20 examination.
~
21 Also, to facilitate the FEMA evaluators because of 22 the logistics of traveling around a very large area, to be 23 able to get to all of the traffic or access control points 24 in order to evaluate the field locations.
25 Also, one of the things FEMA wanted to make sure Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - RECROSS 23185 1
of is, they wanted to make sure that we did not activate 2
traffic and access control points that had just recently 3
been activated in what we call " dress rehearsal drills" that 4
were held by local communities and the State of New 5
Hampshire.
6 And the fourth item that wac involved in the 7
decision process, there was a road impediment that was part
~
8 of the Extent of Play and FEMA wanted that road impediment 9
located so that the state police would be involvsd in 10 recognizing the facility.
In other words, in a compensatory 11 town or an access control point.
12 So they wanted to make sure that the compensatory 13 resources would be excrcised for a traffic impediment.
f 14 Q
Thank you.
\\
15 MR. LEWALD:
That concludes my redirect 16 examination.
17 JUDGE SMITH:
Any questions based upon the 18 succeeding questions?
19 MR. BROCK:
I have a couple questions, Your Honor, 20 raised by Ms. Doughty.
21 RECROSS-EXAMINATION
~
22 BY MR. BROCK:
23 0
Mr. Callendrello, did I understand your testimony 24 on Friday to be that the bus companies -- well, 20 buses in 25 New Hampshire actually participated in the exercise; I
i Heritage Reporting Corporation (202) 628-4888
I REBUTTAL NO. 23 PANEL - RECROSS 23186 1
correct?
2 A
(Callendrello)
That's correct.
3 Q
And do I understand your testimony that you agreed 4
it was achievable for more buses above 20 to participate in 5
the exercise but they did not because FEMA didn't have 6
anymore evaluators?
f 7
A (Callendrello)
No, that's not my recollection of 8
my testimony.
I haven't looked at the transcript.
9 But my recollection of that was, one of the 10 factors for why buses ran multiple routes was to accommodate 11 the fact that there were some limited number of FEMA 12 evaluators.
13 I believe I testified that the~ number 20 was 14 considered to be adequate because it tested, in accordance 15 with footnote IV of 10 CFR 50, Appendix E, Part 4 (f) I 16 believe, a sufficient number of resources to demonstrate the 17 capability and implementability of the plans and procedures.
18 Q
You -- I'm sorry.
19 A
(Callendrello)
And coincidentally, was sized to 20 allow those resources to be evaluated by the FEMA 21 evaluators.
22 Q
You agree that it was achievable to put more buses 23 under LOA into the field than to participate in the I
24-exercise; that was achievable, correct, Mr. Callendrello?
25 A
(Callendrello)
It was not achievable in the sense Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - RECROSS 23187 1
of it being a meaningful demonstration of the plan.
Those 2
resources could have been placed in the field.
However, it 3
would not have served any purpose for the exercise; and that-4 is the evaluation of the implementability, if you could not 5
have an evaluator observe the deploymen', of those resources.
6 Q
Mr. Baer, I believe in raaponse to again a point 7
by Ms. Doughty concerning the bus companies that were 8
actually contacted during the exercise, what I observed is, 9
you appeared to have examine a document and then gave 10 testimony on that point.
11 1 First of all, what document did you examine to 12 determine what bus companies were actually contacted in New 13 Hampshire during the exercise?
14 A
(Baer)
The document was part of the procedure 15 used by the New Hampshire emergency operation center 16
- resources coordinator during the early stages of the 17 erercise.
And the document is, I believe, was provided by 18 Mr. Hu'.J.ngton both to you and to us, I believe.
19 0
Well, let me show you a document and see if this 20 is the document you' re referring to.
21 (Document proffered to all parties.)
22 BY MR. BROCK:
23 Q
Is that the document to which you were referring?
24 A
(Baer)
Yes.
25-MR. BROCK:
Your Honor, I would like this document f
Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - RECROSS 23188
-1 marked for the next Mass AG Exhibit, and I believe that's 7
t-2 number --
3 JUDGE SMITH:
107.
4 MR. BROCK:
Thank you.
107.
5 (The document referred 6
to was marked for 7
identification as 8
Mass AG Exhibit 107.)
9 BY MR. BROCK:
10 Q.
Now, Mr. Baer, I believe your testimony was that 11 every bus company identified in Mass AG 107 was actually 12 contacted with the exception of Dover School District; that 13 was your testimony?
.(
14 A
(Baer)
At the time that I examined the document 15 on Friday, I'believe, yes.
16 Q
All right.
17 Looking at.the second page of the exercise and 18 referring to the Warburton Transportation, in the middle of 19 the page, would you agree that company also was not 20 contacted during the exercise?
~
21 JUDGE SMITH:
What page?
22 MR. BROCK:
This would be the second page of the 23 exhibit, Your Honor, the Warburton Transportation.
24 THE WITNESS:
(Baer)
There is a question mark l
l 25 entered on that line of the document which would lead me to 1
i g
Heritage Reporting Corporation (202) 628-4888-i 1
e
1 REBUTTAL NO. 23 PANEL - RECROSS 23189 1
believe that they also were not contacted.
2 BY MR. BROCK:
3 Q
So that is two of 18 companies that were not 4
contacted during the exercise; correct?
To the best of your 5
knowledge?
6 A
(Baer)
To the best of my knowledge, based on my 7
impressions fro chis document, that would be correct.
8 Q
And is it also correct that an additional 10 bus 9
companies when contacted declined to participate in the 10 exercise?
11 A
(Baer)
In accordance with the message that was 12 prescribed and read to each of the companies that were 13 contacted, my impression is that the "NP" indicates the
(
14 nonparticipation.
s 15 Q
And it's correct, is it not, sir, that each of 16 those companies where "NP" is indicated were called by New 17 Hampshire emergency management and requested to determine 18 the actual availability of vehicles and drivers, and at that 19 point gave a "not participating" response?
20 That's your understanding?
21 (Witness reviewing document.)
22 THE WITNESS:
(Baer)
The first question that was 23 asked was: are you participating in this drill?
And if the 24 answer is, no, then the person reading the message from the 25 state EOC was to respond, "Thank you for your time, have a l' f Heritage Reporting Corporation (202) 628-4888 l
1
l i
i REBUTTAL NO. 23 PANEL - RECROSS 23190 t:
1 good day,".and that terminated the message.
]
j I
'2 BY MR. BROCK:
l 1
3 Q
All right.
4 So you would agree with the'last statement that'I J
5 made that -- well,.let me withdraw that.
6-You would agree then based on this document that
~
7-12 out of la bus companies under letter of agreement for New' 8
Hampshire did not participate in the exercise?
9
'.19 11 12 13
.(
14 t
15
.16 17-18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
5 1
REBUTTAL NO. 23 PANEL - RECROSS 23191-
-1 A
(Baer)
I would agree.
2' MR. BROCK:
Your Honor, I would offer Mass AG 107.
3 JUDGELSMITH:
Are there any objections?
4 MR. LEWALD:
No objection.
5 JUDGE SMITH:
Received..
6-(The document referred to, 7
having_been previously. marked 8
for identification as Mass 9
AG Exhibit No. 107 was 10 received in evidence.)
.)
11 BY MR. BROCK:
12 Q
Just one other point.
~
13 Mr. Callendrello, I believe you, in answer to.a a
14-question by Ms. Doughty, indicated that a reasonable. time 15-frame had been used to simulate the time for -- well, to 16 sinulate.the : response time for bus companies during the 17 exercise, correct?
18 A
(Callendrello)
Yes.
.I believe I testified that 19 the buses were not made available all in one group; that
.20 they were staggered.
There was a staggered availability of
~~
21 buses.
22 Q
And that was e simulated time, correct?
23 A
(Ca11endre11o)
Well, there were some buses that 24-were actually deployed.
So in those cases, for the.20 buses 25:
that'did actually arrive, those were not simulated.
Beritage Reporting Corporation (202) 628-4888
u REBUTTAL NO. 23 PANEL - RECROSS 23192 1
But for the others, it would'have been a simulated 2
time.
-3 Q
All right.
And who determined that time, what 4
that time would be?
5 A
(Callendrello)
It would have been the developers 6
of the scenario.
I don't know offhand who it was.
'7 Q
Do you know what criteria went into determining 8
the response time, the simulated response time for the 9
companies?
10 A
(Callendrello)
No, I don't know for certain.
11 Q
Do you know, Mr. Gram?
12 A
(Gram)
I was just sitting here trying to recall 13 the actual process, and I can't specifically naae the-14 planner or the scenario developer.that was involv'd in that, j{'
15 and I just cannot recall the -- using your words," the 16 criteria" that went into the development process.
17 MR. BROCK:
Thank you.
18 I have nothing further, Your Honor.
19 MS. DOUGHTY:
Your Honor, may I ask a little more 20 follow up?
21 JUDGE SMITH:
Yes.
22 RECROSS-EXAMINATION 23 BY MS. DOUGHTY:
24 Q
This is with reference to Mass AG 107.
L 25 There were three bus companies, as I recall, that
[g-Heritage Reporting Corporation (202) 628-4888 E--___________________________
REBUTTAL NO. 23 PANEL - RECROSS 23193 1
were under contract to participate in the exercise?
2 A
(Baer)
Advance arrangements had been made with 3
three companies to provide busea, yes.
4 Q
And three actually provided buses?
5 A
(Baer)
Yes.
6 Q
Could you identify which those are?
7 A
(Baer)
The Timberlane Transportation was one.
8 Q
Okay.
9 A
(Baer)
Ryder Student Transportation was another.
10 Timberlane of Portsmouth was one.
Timberlane of 11 Rochester was another, and Ryder Student Transportation of 12 Nashua was another.
13 Q
Mr. Baer, could you explain to me what the numbers 14 next to the Manchester Transit Authority signify?
4 15 Are those hypothetical numbers?
l 16 A
(Baer)
I'm not -- having not been there when this 17 form was completed, I don't know.
But I would assume that 18 those were numbers that were provided when they called them.
19 0
I see.
20 A
(Baer)
When the EOC called.
21 Q
Okay.
But those vehicles did not actually 22 participate, nor did those drivers?
23 A
(Baer)
No, they did not.
24 MS. DOUGHTY:
Okay, thank you.
25 JUDGE SMITH:
Anything?
l l
[
g Heritage Reporting Corporation (202) 628-4888 l
23194 1
MR. BACHMANN:
No.
2 JUDGE SMITH:
All right.
Gentlemen, you are 3
excused.
4 (The witnesses were thereupon excused.)
5 JUDGE SMITH:
Who's next?
6 MR. BROCK:
Your Honor, I believe that's the bed 7
bus panel for Mass AG.
8 JUDGE SMITH:
The lawyers, the licensing lawyers?
9 MR. COOK:
That is our understanding.
10 MR. BROCK:
Okay.
11 Whereupon, 12 GERALD ST. HILAIRE 13 HOWARD SAXNER 14 having been first duly sworn, was called as a witness herein
(~
15 and was examined and testified as follows:
16 MS. GREER:
Good afternoon, Your Honor.
17 In light of the Board's ruling on the motion in 18 limine last week, this panel that is. currently seated 19 originally had three members:
Mr. St. Hilaire, who is on 20 the far right from the boards perspective, on the far left 21 from our perspective; Mr. Saxner, who is seated next to him;
~
l 22 and Barbara Davis.
23 In light of the Board's ruling on the motion in 24 limine, Ms. Davis is not appearing here today, but I have 25 taken the testimony that is being offered at this time, and k
Heritage Reporting Corporation (202) 628-4888 l
l
.________a
23195 1
in light of the Board's ruling marked it accordingly, j
2 essentially crossing out Ms. Davis' testimony, and I will 3
distribute that at this point.
4 I have also, in connection with this testimony and 5
in light of the Board's ruling, particularly in-connection 6
with the Level I/ Level II care, I have also prepared another 7
packet of corrected testimony which would include as an 8
exhibit a portion of the withdrawn testimony on 9
transportation resources that was originally offered as 10-prefiled testimony by the Applicants.
And I have included 11 it in that portion of the testimony as an exhibit.
That was 12 how they came to their analysis of evacuation bed bus 13 resource need.
14 And I would offer that at this point, too,
(
15 realizing that that portion of the testimony in that exhibit 16 is all being, under the Board's ruling, likely to go into 17 the rejected testimony file.
18 Let me distribute these two packets.
19 JUDGE SMITH:
Why keep these gentlemen here while-20 you are going through all of that?
21 You're going to have some arguments.
Why don't we 22 get on with them and let them go?
23 MS. GREER:
All right.
Well --
-24 JUDGE SMITH:
I expect there is going to be some 25 arguments about this.
Heritage Reporting Corporation (202) 628-4888
23196 l
1 MS. GREER:
About the corrected testimony version?
g 2
JUDGE SMITH:
Well, no, the corrected testimony 3
version would simply be what you will proffer.
We have 4
already ruled out Barbara Davis' testimony.
5 MS. GREER:
Right.
6 JUDGE SMITH:
So you will offer that.
But the
)
7 other documents -- well, go ahead.
Proceed.
8 (Documents proffered to all parties. )
9 MS. GREER:
The second document that I handed out 10 is the same prefiled testimony, again marking out Barbara 11 Davis' testimony.
But the only addition to it is the 12 attachment that was the portion of the prefiled testimony 13 that she looked at in --
14 JUDGE COLE:
That was the first one you 15 distributed to me, though.
16 MS. GREER:
Oh, I'm sorry.
17 The portion of the prefiled testimony that she 18 looked at in making the evaluation as to Level I and Level 19 II.
She also looked at Applicants' Rebuttal Testimony No.
20 6,
which in fact was offered and is in the record in this
~
21 proceeding.
22 However, the only reason I am offering this in as 23 an exhibit is because she also looked at this on the Ievel I 24 and Level II distinction.
And because that testimony was i
25 withdrawn, it never made it into the record, and this is I
f-Heritage Reporting Corporation (202) 628-4888 i
)
23197 E
1 just -- I realize, in light of the Board's ruling, this is 2
all likely to be going into the rejected testimony file, but 2
3' I thought I should at least put it in front of the Board so 4
the record is complete on it.
5 JUDGE SMITH:
I have two papers here that are l
6 virtually identical.
One of them has appended to it a 7
portion of Applicants' Rebuttal Testimony No.
8.
8 What are you going to do with that one?
9 MS. GREER:
I would be offering that as an exhibit 10 that would be going with the Barbara Davis testimony into 11 the rejected testimony file.
12 JUDGE SMITH:
And you are offering that as an 13 exhibit.
14 MS. GREER:
Right.
15 JUDGE SMITH:
But it's got the testimony of the 16 witnesses St. Hilaire and Saxner on it.
17 MS. GREER:
Yes.
And the original one, the first 18 one I passed out would be the one that I would now be
~
19 offering into the record today, if you will let na just put 20 the preliminary questions to it.
21 JUDGE SMITH:
So we are going to have, I think, 22 two rather confusing items of evidence.
We're going to have 23 the testimony of St. Hilaire and Saxner received.
And we're 24 going to have a superficially identical one rejected.
25 MS. GREER:
With the attachment.
Heritage Reporting Corporation (202) 628-4888
I ST. HILAIRE, SAXNER. - DIRECT 23198 I
.1-JUDGE! SMITH:. Well, you do.it a better way~than p:
2-
.that.-
That'doesn't make sense.
Let's tend to their l
3 testimony, and you come back'with something a little bit 6
4 more logical-than'that.
5 MS.z GREER.
Okay.
~
6 JUDGE SMITH:
Because I'm going to return that 7
document to you.
8 MS. GREER:
Okay.
9-
.Should we then just proceed now-w ti h the testimonyf 10
-of these two gentlemen today?
11 JUDGE SMITH:
That's what I would recommend, yes.
12-MS. GREER:
Okay..
13 DIRECT EXAMINATION 14-BY MS. GREER:
1 15 Q
Mr. St. Hilaire, I have just handed out to you'a 16 document entitled " Corrected Testimony of Gerald St. Hilaire 17 and Howard Sahner".
18 Have you had a chancs to review that document?
19 A
(St.'Hilaire)
Yes, I have.
20 0
And, Mr. Saxner, have you had a chance to review 21 that document as well?
22 A
(Saxner)
Yes, I have.
23.
Q And is that your testimony in this proceeding?
24 A-(St. Hilaire)
Yes; it is.
25 A
(Saxner)
Yes, it is.
Heritage Reporting Corporation (202) 628-4888 L----_--.--_---_-_------.-_--
i ST. HILAIRE, SAXNER
- DIRECT 23199 L
'l MS. GREER:
I would now offer that testimony into
.g.
2 the record.
3 JUDGE SMITH:
Well, how about the part the.t's got 4
Barbara Davis on it?
5 MS. GREER:
In the past what we've done, in terms o
6 of motions in limine in this proceeding, and I would be i
7 happy to follow the Board's direction on it, the part that 8
has been stricken under a motion in limine ruling has just 9
been X'ed.out as I've done it here.
10 If the Board would like to adopt a different --
li JUDGE SMITH:
No.
It's just that there is just no 12 perceptible logic that I can see to what your approach is.
13 I don't understand what you are doing.
I don't have'the 14 vaguest idea what you are doing here.
15 Now, you have a document over there that we have 16 just' returned to.you that has Barbara Davis' testimony 17 crossed out.
And that is the same thing I have right here.
18 Barcara Davis is in here.
19 MS. GREER:
Right, and she --
20 JUDGE SMITH:
And you want to offer both as
~
21 rejected testimony and as a rejected exhibit.
22 MS. GREER:
Yes.
23 JUDGE $MITH:
Why do you want to do that?
24 MS. GREER:
Because as I explained to the Board 25 last week, part of her --
Heritage Reporting Corporation (202) 628-4888
l.
i ST. HILAIRE, SAXNER
- DIRECT 23200 1
JUDGE SMITH:
Focus on why do you want to do it 2
two times as compared to once.
3 MS. GREER:
I would be happy to.
4 I think, under the Board's previous rulings with 5
respect to the motion in limine, the single sheet, without 6
the new exhibit, would be the appropriate way to now proceed 7
with this testimony in light of what we have done in the 8
past.
9 JUDGE SMITH:
All right.
Are there objections to 10 the testimony of Mr. St. Hilaire and Mr. Saxner?
11 We've already had a debate and a preliminary 12 ruling on it.
13 (Pause. )
14 JUDGE SMITH:
I don't know why we have to clean up
(
15 your work here, but I guess we have no other choice.
16 MR. COOK:
Your Honor, Applicants do object in the 17 form presented with the attachment of the exhibit.
That was 18 a withdrawn piece of testimony and never offered.
19 So that it's my understanding is it should not go 20 into the rejected exhibit file because it was never offered 21 in the first place.
22 MS. GREER:
All right.
I 23 JUDGE MCCOLLOM:
Ms. Greer, shouldn't also the 24 name "and Barbara Davis" be marked off of the front?
j l
25 MS. GREER:
Oh, that would probably in fact be
]
Heritage Reporting Corporation
]
(202) 628-4888 1
I i
i I
ST. HILAIRE, SAXNER
- DIRECT 23201 1
appropriate under the Board's ruling.
~
2 JUDGE SMITH:
1 don't understand your argument 3
either.
4 We had a discussion on your motion in limine about 5
the testimony of these two gentlemen, as to which you 6
prevailed in part, but not in whole.
We decided that they 7
would be here and they would be examined as to certain 8
aspects of their testimony.
l 9
Are you making a new objection based upon 10 withdrawal?
11 MR. COOK:
Not to their testimony, Your Honor.
12 I am just agreeing with the Board's concern about 13 the attachment of the last two pages to a document --
(
14 JUDGE SMITH:
Barbara Davis testimony.
15 MR. COOK:
Right, to the Barbara Davis,.and then 16 only because that is --
17 JUDGE COLE:
That's not in this request.
18 MR. COOK:
Okay.
That would be fine.
19 JUDGE COLE:
That was the part that we gave back 20 to her.
21 MR. COOK:
Okay.
22 JUDGE COLE:
It's just the crossed out Barbara 23 Davis, two and a half pages that's involved now.
24 MR. COOK:
Yes.
l 25 Do we object to the form of that, is that the l'
\\
Heritage Reporting Corporation (202) 628-4888 I
l
ST. HILAIRE, SAXNER
- DIRECT 23202 1
question?
k 2
JUDGE SMITH:
You object to having this document, 3
with the crossed out testimony of Barbara Davis on it.
4 MR. COOK:
May I have a moment to consult?
5 (Counsel confer.)
6 MR. COOK:
No, we don't object to that.
7 JUDGE SMITH:
You don't object to that.
8 But this is just totally illogical, what you are 9
doing here, and the Board doesn't feel comfortable in 10 cleaning up your work.
11 MS. GREER:
Your Honor, if you would give me 12 guidance, I would be happy to do whatever the Board would 13 like me to do.
14 Would you just like me to strike off --
15 JUDGE SMITH:
No, here's what we will do.
Let's 16 get moving.
17 MS. GREER:
Okay.
18 JUDGE SMITH:
We will regard the piece of 19 testimony which you have now offered us as the testimony 20 offered based upon their identification of it.
And we will 21 accept the stricken part relating to Barbara Davis as your 22 proffer of her testimony which was refused.
23 MS. GREER:
Fine.
24 JUDGE SMITH:
And we will also cross out her name 25 on the front.
i I
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER
- DIRECT 23203 1
MS. GREER:
Fine.
7!-
2 JUDGE-SMITH:
And then wherever it appears. And it 3-
-is your job to find out and conform this piece of paper to 4
our. ruling.
5 MS. GREER:
That has been done.
6 JUDGE SMITH:
Okay.
7 Then with respect to the other item, which was 8
attached to the other identical thing, you offer that as a 9
separate exhibit.
10-MS. GREER:
Yes.
Okay, I will do that.
11 JUDGE SMITH:
Then I think we will have everything 12 in.
r 13-MS. GREER:
Fine.
I will do that then.
f 14 MR. COOK:
Your Honor, the only other two very 15 brief sections we would object to are the references to that 16 piece of testimony that was never offered that I should have 17 raised in the motion in limine which is --
18 JUDGE SMITH:
Well, my point was that --
19 MR. COOK:
Yes.
20 JUDGE SMITH:
-- she knows what the ruling is.
21 And before she gets anything in evidence, before anything is 22 bound into that transcript, she's going to have to conform 23 it.
1 24 Now, why do we have a second face page on this 25 anyway?
I never could understand that.
. f Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER. - DIRECT 23204 1
~1 Well, that begins the testimony.
. (
2 You have'to take her name off of the second page, 3
. too'.
4 5
6.
-7 8
.9 10 11 12 13:
,14
,15.
16' 17 18 19-20-21 22 23-24 25 Heritage Reporting Corporation (202) 628-4888 4
.__.m..
l
^~'
i ST. HILAIRE, SAXNER
- DIRECT.
23205' j
.1L JUDGE SMITH:
All right.
'V 2
MR. COOK:
I was referring only.to the fourth line 3
.from the bottom on page two in which Mr. St. Hilaire says 4
that he has consulted Applicants' Rebuttal Testimony No.
8.
5 It is Applicants understanding that since that was 6
never offered we may move to strike that reference.
And the
~
7 similar reference on page five in the middle of the page.
8 MS. GREER:
Shall I respond?
9 JUDGE SMITH:
Yes.
10 MS..GREER:- Even though the Applicants never 11 offered that testimony into the record in this proceeding, t
12 essentially, it is the equivalent of a statement or an 13 admission, in this case, by a party-at-interest.
It is 14 reliable.
The Applicants, in fact, had contemplated 15 offering it and, in fact, withdrew the testimony at the very 16 '
last minute..
17 Mr. St. Hilaire and Mr. Saxner, in looking at 18 materials to prepare their testimony and to' form their 19 opinions, could have looked at anything.and identified 20 anything as the basis for their opinion.
21 In this case, for instance, had they looked at 22 answers to interrogatories provided by the Applicants or 23 other documents provided in discovery by the Applicants-they 24 could have then said, I have looked at this and this is one 25 of the things I'm considering in making my opinion as to j
Heritage Reporting Corporation (202) 628-4888
i' ST.'HILAIRE,'SAXNER' - DIRECT 23206 1
whether bed buses can'be' implemented-in the SPMC.
2.
And that--is simply a document they looked at.
I 3
think it's perfectly l appropriate that it be continued t0
>e 4
referenced in their testimony.
5 JUDGE SMITH:- What did they learn from Rebuttal-6
. Testimony No.
8, which is relevant to the balance of their 7
testimony?
8 MS. GREER:
Okay.
9-
'When the initial documents that we received came r
10' out they -- the initial document ~-- one of the documents 11 that they looked at was an' evacuation bed bus specification.
12 That was initially given to us, I guess, or drawn -- it was 13 initially drawn up'in December of January.. Then we did.
14
' depositions in March.
{3 15 And then' finally, the Applicants' testimony with 16 respect to evacuation bed buses came out in April.
- April, 17
.in fact,. confirmed.that-the contemplation of use of bed 18
' buses in the SPMC was as has been described to us in the L
19 evacuation bed bus specification, the bid proposals, and the 20 depositions that we have previously done.
There has been no 21.
modification.
22 And that is simply a confirmation that the
-23' currently contemplated way of implementing bed buses in the 24 SPMC is to have them based at a school bus company dedicated 25
-- 30 buses at one company or 30 odd buses at one company i
7
'k Beritage Reporting Corporation (202) 628-4888 1
r-ST. HILAIRE, SAXNER
- DIRECT 23207 1
dedicated exclusively to the-use --
]
'2 JUDGE SMITH:
Is this all they learned from 3
Rebuttal Testimony No. 8?
4 MS. GREER:
This is, in' fact, confirmed in 5
Rebuttal Testimony No. 8 which was submitted by the 6
A?plicants.
I think it was April -- was it April or.was it 7
May?
-8 MR. TROUT:
February.
9 MS. GREER:
February 28th.
10 JUDGE SMITH:
And that is the portion of the 11 document that you had attached to the paper that I returned 12-to you is the portion which is referred to here on page two?
13 MS. GREER:
Part of it was, f.'
14 That portion that was attached in the document I
15'
.that you returned to me was the portion of that piece of 16' rebuttal testimony dealing exclusively with their analysis 17-of needs for nursing homes, which was the thrust of Ms.
18 Davis' testimony.
19 But in the same way, I think it's appropriate for
-20 a witness to say, I have looked at answers to 21
. interrogatories.
Even though they' re not part of the 22 record, I think it's perfectly appropriate for them to say, 23L I've looked at prefiled testimony.
24
. JUDGE SMITH:
Give me a more substantive reason 25 why this information should not be in.
Beritage Reporting Corporation (202) 628-4888
_m
ST. HILAIRE,,SAXNER
- DIRECT 23208 j
1 MR. COOK:
Yes, Your Honor, f -
2 JUDGE SMITH:
They have to have a predicate to 3'
their testimony and they got it from a presumably reliable 11 source.
5 MR. COOK:
Yes, Your Honor.
6 I have essentially -- Applicants have two 7
concerns.
The first is that the referenca lacks 8'
specificity.
We would like to know exactly what part --
9 JUDGE SMITH:
Cross-examine them.
10 MR. COOK:
-- of section 8.
11 And the second is the problem of uncertainty in 12.
'that the' failure to offer that testimony indicates that 13 Applicants may not use or-rely on-that in the future. 'As
{
- 14 Mr. Gram expressed last Thursday, there is uncertainty with 15 respect to the exact use of bed buses.in this processing.
16 Those are the two concerns.
17 JUDGE SMITH:
I think that the whole debate is
- 18 being too mechanical.
I think we can go straight to their 19 testimony and find out what they knew and what contribution 20 they can make to the hearing
~
21 You can renew it, if at the~end of their testimony 22 you still think the motion has sense.
But as far as their 23 testsmony bootstrapping Applicants' Rebuttal Testimony No. 8 24 into evidence as to the use, well, in the context that 25 you're raising with Mr. Gran, you just have to be careful L
?
(
Heritage Reporting Corporation (202) 628-4888 l
l
l ST. HILAIRE, SAXNER
- DIRECT
'23209 1.-
-1 and make sure that doesn't happen when the proposed findings 2
come in.. There is no basis today for that to happen.
3 MR. COOK:
All right.
4 JUDGE SMITH:
Is your panel ready for cross-5 examination?
t.
6 MS. GREER:
Yes.
7 I have, I believe, officially offered it.
The 8
Board has, I think,-now heard the objections.
9 JUDGE SMITH:
We've heard the objections.
10 We will receive the testimony and as indicated we 11 will receive the aspect beginning on page 8 through the end 12 relating to-Barbara Davis as rejected testimony to be bound 13 into the transcript.
14 (St. Hilaire and Saxner 15 testimony and the rejected 16 Barbara Davis testimony.
17 follows:)
18.
19 20 21 22 23 24 25 N..
Heritage Reporting Corporation (202) 628-4888
l.
3l ';
UNITED STATES OF AMERICA MT-NUCLEAR REGULATORY COMMISSION ATOMIC : SAFETY AND LICENSING BOARD Before the' Administrative Judges:
Ivan.W.' Smith, Chairman
.Dr. Richard F.-Cole' Kenneth A.
McCollom
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC. SERVICE COMPANY
)
(Off-Site EP)
__ET A_L.
)
OF NEW HAMPSHIRE,
)
(Seabrook Station, Units 1 and 2)
)
April 10, 1989
)
Cuert-kd
(;
- g TESTIMONY.OF GERALD ST. HILAIRE, HOWARD SAXNER,.*Me skRBARA DAVIS =ON BEHALF OF JAMES M. SHANNON, ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS ON THE PROPOSED USE OF EVACUATION BED BUSES IN THE SPMC 1
Department of the Attorney General Nuclear Safety Unit Public Protection Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 727-2200
? L. -
.u l.__...
.--_.____t__._
4 1
s
('
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:
Ivan W -Smith, Chairman Dr. Richard F.
Cole Kenneth A. McCollom 1
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY
)
(Off-Site EP)
OF NEW HAMPSHIRE, ET AL.
)
)
(Seabrook Station, Units 1 and 2)
)
April 10, 1989
)
/ '
TESTIMONY OF GERALD ST. HILAIRE, HOWARD SAXNER,-AMD 1
. BARBARA-DAVI-S-ON BEHALF OF JAMES M.
- SHANNON, ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS ON THE PROPOSED USE OF EVACUATION BED BUSES IN THE SPMC Q.1.
Please state your name, business address and position.
A.1.
My name is Gerald St. Hilaire.
I am General Counsel i
for the Registry of Motor Vehicles and my office is located at
]
1 100 Nashua Street, Boston, Massachusetts.
0.2.
What will you be testifying on in this proceeding?
A.2.
I will be testifying on the requirements for the registration of ambulances as motor vehicles on the roads of the Commonwealth.
l r
l:,
n m
Q.3.
What is your basis of knowledge for that testimony?
A.3.
As General Counsel for the Registry of Motor Venicles I am familiar with the procedures, regulations, and other requirements for. registering motor vehicles in general.
More particularly, I am familiar with the requirements for registering ambulances.
While I personally do not issue registrations for motor vehicles, and ambulances in particular, I provide advise to registry personnel who perform those
~
functions concerning any questi-ons on procedures and requirements for such registrations.
I have worked with the personnel who actually do the on-line work of issuing registrations and am familiar with the procedures involved for performing such operations.
(
Q.4.
Are you familiar with the proposed use of evacuation bed buses in the Seabrook Plan for Massachusetts Communities?
A.4.
Yes, I am.
Q.5.
How have you come to be familiar with that proposal?
A.5.
I have reviewed various documents relating to that proposal including a memorandum on specifications for evacuation bed buses dated January 27, 1989, a copy of a
~
request for a bid proposal for evacuation bed buses dated i
February 21, 1989; portions of the depositions of New Hampshire Yankee agents concerning evacuation bed buses; and portions of documents titled ' Applicants' Rebuttal Testimony #6' and
' Applicants' Rebuttal Testimony #8'.
l 0.6.
After having looked at those documents, what is your l
d' t
understanding as to the how the Applicants plan to use evacuation bed buses in the SPMC?. - _ _
A.6.
I understand that the Applicants' are going to use
(
~
35 school buses that have been outfitted in a permanent way to transport the sick, injured and/or disabled persons from the Massachusetts Emergency planning Zone in the event of a radiological emergency at Seabrook Station.
As I understand
\\
the proposal those school buses will be outfitted with evacuation oed bus equipment on a permanent basis and used exclusively for the transportation of the sick, injured and disabled.
0.7.
If such a vehicle is used in that way, does it fall within any particular class of vehicle ir. sofar as the Registry of Motor Vehicles is concerned?
A.7.
Yes, a motor vehicle that is equipped and used exclusively for the transportation of the sick, injured and/or disabled is classified as an ambulance insofar as the Registry is concerned.
Q.8.
Do you know if there is any requirement that any particular kind of certificate or licensure be obtained in order to operate ambulances in the State of Massachusetts?
A.8.
Yes, my understanding is that to operate an ambulance in the State of Massachusetts one must first obtain a i
certificate for that ambulance from the Department of public Health.
The Department of Public Health has general perview over the inspection and certification of ambulances.
My understanding is that in order to receive a certificate from the Department of public Health there needs to be certain kinds'
(
of equipment on the vehicle and there are supposed to be E.M.T.s as attendants on the vehicle. o
n'
' (-
Would the proposed evacuation bed buses in the SPMC Q.9.
need to obtain certification from the Department of Public Health to operate as ambulances?
A.9.
Yes.
If it was to come to the attention of the Registry of. Motor Vehicles that any motor vehicle was registered or seeking to be registerec" as an ambulance without obtaining a certificate from the Department of Public Health, tne Registry would refuse to register such vehicles as ambulances until such a certificate was obtained.
Q.10.
Please state your name, business address and position.
A.10.
My name is Howard Saxner.
I am Deputy General Counsel for the Massachusetts Department of Public Health, 150 Tremont Street, Boston.
Q.11, Mr. Saxner, what will you be testifying on?
A,ll.
I will be testifying on the requirements for certification of ambulance vebicles and licensure of ambulance services.
Q.12.
How do you come to have knowledge of those topics?
A.12.
In my capacity as Deputy General Counsel I serve us counsel for a number of divisions within the Department of L
l Public Hea3th, including the Ambulance Regulatica Program and
[
the Office of Emergency Medical Services.
i Q.13.
As part of your job responsibilities, do you l
actually do the licensure or certification of ambulances yourself?
1 l
i i
1 A.13.
No.
That's done by program people.
However, I I~
advise them on any issues and questions that come up concerning 1
licensure and certification, and I have worked with them in terms of developing procedures and regulations.
0.14.
Have you had an opportunity to review the proposed ase of evacuation bed buses in the Seabrook Plan for Massachusetts Communities (SPMC)?
A.14.
Yes, I have.
Q.15.
How have you come to have knowledge of that proposal?
A.15.
I have reviewed a memo on specifications for evacuation bed buses from Mr Tailleart, dated January 27, 1089, as well as a Request for Proposal on evacuation bed buses i
issued by Public Service of New Hampshire, dated February 21, l
1989, portions of depositions of representatives of New (c
i Hampshire Yankee and portions of Applicants' Rebuttal Testimony
- 6 and #8 on Protective Actions for Particular Population and Transportation Resources.
Q.16.
Having reviewed those documents, what is your understanding as to how New Hampshire Yankee plans to implement 1
the use of evacuation bed buses in the SPMC?
A.16.
My understanding is that they propose to re-equip 35 school buses to transport cick, injured or disabled persons from hospitals and nursing homes as well as the mobility I
l impaired who reside in the Massachusetts Emergency Planning l
Zone.
Under the terms of the proporal the buses will be outfitced with evacuation bed equipment and be maintained in a
(.. _ _ _
fully, outfitted condition.to beLused only by'the;New Hampshire Yankee'Off-site Response Organization-(ORO) in'the' event of an l'
l emergency'at.the-Seabrook Plant.
Q.17.
Is there.any requirement that.to implement the L
- proposed use of such buses any particular kind of cert ficate i
or licensure be obtained?
o A.17.
Yes, to operate'in Massachusetts, such vehicles would be required to have certificates as ambulances, and additionally the' entity. operating such vehicles would have to be licensed as an ambulance service by the~ Department'of Publi' Health.
.Q.' 18.
What is required to be licensed as an ambulance service in Massachusetts?
[
A.18.-
There are a variety of requirements for ambulance services in Massachusetts inc,
".ng both vehicles and the type sof. equipment that would be used to provide treatment to. persons beingitranspotted as well as standards for personnel'and provision of service.
For instance, a licensed ambulance service must have appropriate insurance, garages'for vehicles, communications equipment and supplies and equipment.
.In
, addition, the bed buses in the SPMC would be certified under
~
the Department's regulations as Class V venicles, which means that'there would have to be a written agreement with an ambulance service with a Class I vehicle and a back-up Class I vehicle to provide an emergency response, j
Q.19.
What kind of requirements are there to receive a
(..
certificate to operate an ambulance?. _ _ -
I
A.19.
There are varicus requirements in terms of equipment being on the vehicle, i -luding a requirement that there be 1
l portable oxygen supplie, shat's called a ' bag-mask', a por' table suction unit, a stretcher, padded board splints, and other requirements.
Q.20.
Are there any other requirements to receive a certificate for an ambulance other than having special equipment on board?
A.20.
Yes.
Any licensed ambulance service must have two certified E.M.T.s on each of its ambulance vehicles.
Q.21.
What are E.M.T.s?
A.21.
E.M.T.s are Emergency Medical Technicians who meet requirements and regulations established by the Office of Emergency Medical Services of the Department of Public Health,
('7 both in terms of training and in terms of passing a test for certifi.;ation.
Q.22.
What kind of training goes into receiving a certification as an emergency medical technician?
A.22.
Initially, anyone seeking to become certified as an E.M.T. would have to take a 110 hour0.00127 days <br />0.0306 hours <br />1.818783e-4 weeks <br />4.1855e-5 months <br /> class plus a certification
)
examination.
In addition, E.M.T.s have to be decertified every two years.
In order to be decertified they would have to pass an annual decertification in C.P.R.
(Cardio Pulminary Resuscitation), a 20 hour2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> refresher course and 28 hours3.240741e-4 days <br />0.00778 hours <br />4.62963e-5 weeks <br />1.0654e-5 months <br /> of continuing education. !
u Q.23.
Under.the proposal that has been made for the implementation of evacuation bed buses
'i the RPMC, could those vehicles receive certification as ambu 1 aces from the Department'of Public. Health?
A.23.
-No.
Q.24.
Why not?'
U A.24.
.There are no provisions in the proposal for meeting the Department's requirements for licensure as an ambulan'ce service or certification of vehicles.
In particular, no provisions have been made for ambulance equipment or properly certified E.M.T.s on board the vehicles.
The only personnel that will'be on. board the vehicles under the proposal that has been submitted is a bus driver-and possibly one other non-certified person to. help handle the loading of the bed buses.
S 25.
- ' Isaac state yvu n a;;,;, wod ness address an y
\\
position.
I A.25.
My ame is Barbara Davis.
I am Pr am Manager r
ong Term Care Pro am and a Registered se at the Divisio.1
\\
o!f' Health' Care Quality, assachusett Department of'Public-I Hlealth, 80 Boylston Street, ost
I Q.26.
Ms. Davis, what 1 "ou be testifying on?
A.26.
I will be te ifying on at is meant 5, the various Icevel.s of care in n sing homes.
]
Q.27.
How o you come to have knowledg of that topic?
A.27.
deal with the requirements concern levels of ca f
nursing homes on a daily basis and make commendations for change and implementation of the sa
i
~~
,-~ -.._ -_
- 28.
Have you had a chance to review the Applicants,'
f",
propos 1 for the allocation of ambulances and bed buse.for
, transpor ing persons from nursing homes in the Massa usetts i
EPZ?
l A.28.
Ye I have reviewed the Applicants' re-filed testimony on th subject.
Q.29.
Have t Applicants made any incorr et assumptions in terms of allocati n of such vehicles?
A.29.
Yes.
The Ap licants apparently are under the false impression that persons w reside in nu sing homes as Level I patients need greater or mor skilled are than Level II patients.
That is a false ass mptio.
Level I patients are i
disting;!ahable from Level II pa nts only by the source of fee reimbursement to the nursing es.
Level I patients are j
paid for by Medicare while Lev II tients are paid for by some other source.
The deno tion of n individual as a Level j
I patient simply means he/
e is being p d for by Medicare.
All Level I and Level II patients are pati ts requiring the same level of skilled ursing care as distin ished from Level III patients who re uire an intermediate level f nursing
- are.
The Appli ants are in error in assuming th t Level I patients requ e a higher level of medical or nurs g care than I
Level II p ients require.
In fact, in some instances a patient may be Level I
hI pat'ent for part of a year and a Level II patient for t e
!res of tne same year.
A patient's care will typically be aid' h
. r by Medicare for only 150 days per year.
At the end of th t
_9 m
J J
i period the payments for a patient's care w e shifted to
{ ~
some other's ding source.
So on
s anhaveasituationwherea\\
\\
pptf$nt for the first 150 days of a patient will be a Lev
- I I
calendar year; then a }e'v'el I atient for the rest of the t
year.
When a newyd$ endar year comm es, the patient will again become a Level I patient for 150-days nd then a Level II f
/
patient,f46r the rest of the year.
Throughout the r the same papke'n t needs and medical requirements would continue to ist. l
(
e _________ -
ST. HILAIRE, SAXNER
. Cross 23210 l'
JUDGE SMITH:
Now, is your panel ready for cross-
'2 ex' amination?
3 MS. GREER:
Yes.
4 MR. COOK:
I will distribute the plan.
z 5
(Document proffered to parties.)-
6 CROSS-EXAMINATION 7
BY MR. COOK:
8 Q
Good afternoon, gentlemen.
My name is Jeffrey j
9 Cook, I'm an attorney for the Applicants in this proceeding.
I 10 Mr. Saxner, you are general counsel for the State 11 Department of Public Health; is that right?
12 A
(Saxner)
I am Deputy General Counsel.
13 Q
Deputy General Counsel.
. (-
14 How long have you worked for the Department of 15 Public Health?
16 A
(Saxner) l}ver six years.
17 Q
Have you been associated with the Seabrook i
18 Licensing proceedings in any way before you gave testimony L
19 in this case?
)
i 20 A.
(Saxner)
No.
21 Q
Who was the individual who first contacted you 22 areut giving testimony in these proceedings?
23 A
(Saxner)
Leslie Greer.
24 Q
And did you agree at that tire to present 25 testimony in this case?
.g i
Heritage Reporting Corporation (202) 628-4888 L
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ST.-HILAIRE, SAXNER - CROSS 23211' 1
A (Saxner)
Yes.
2 Q
Mr. St. Hilaire, you are general _ counsel for the 3
Registry of Motor Vehicles; is that right?
4 A.
(St. Hilaire)
That's a functional title.
I'm 5
actually the Chief Legal Counsel.
It's the same.
I am the 6
Chief Legal Counsel and also a Deputy Register for the 7 ~
Registry of Motor Vehicles.
8 JUDGE McCOLLOM:
We can't hear you very well, you 9
will have to speak up.
10 THE WITNESS:
(St. Hilaire)
-I actually have two 11 official titles: Deputy Registrar; and Chief Legal Counsel.
.12 But among the legal counse]s in state government, the head
)
13 legal counsel at any state agency is called the General
{D 14 Counsel.
15 BY MR. COOK:
16
.Q How long have you been counsel for the Registry?
~
17 A
(St. Hilaire)
A little over four years.
18 Q
Have you been involved in any way with the 19 Seabrook proceedings before giving testimony?
20 A
(St. Hilaire)
None whatsoever.
21 Q
Was Ms. Greer the first one to contact you?
22 A
(St. Hilaire)
Yes, she was.
23 Q
And did you agree at that time to provide 24 testimony?
25 A
(St. Hilaire)
When I was first contacted she l'
\\
Heritage Reporting Corporation (202) 628-4888
l l
I ST. HILAIRE, SAXNER - CROSS 23212 l
1 wanted to talk to me about some matters involving ambulance 2
registrations and vis-a-vis the evacuation plan that had i
I 3
been submitted by Seabrook.
We arranged to meet after the i
4 meeting in that if anything I have to say is relevant, I 5
would be happy to testify.
6 Q
Mr. St. Hilaire, you describe being familiar with 7
the Seabrook plan for Massachusetts communities on page 2 of 8
your testimony.
9 That is right?
i 10 A
(St. Hilaire)
Yes.
11 Q
What sections of the plan involving evacuation bed 12 buses did you read?
13 A
(St. Hilaire)
The only part of the evacuation
(
14 plan or any proposed part of it that I have been privy to or 15 involved in, in my discussions with Ms. Greer, was the issue 16 of using certain vehicles for evacuation purposes, in
~
17 particular bed buses so called.
18 Q
Do you remember what section of the plan that was?
19 A
(St. Hilaire)
No, I don't.
20 0
Do you remember if in reading the plan you learned 21 anything about where the buses would be maintained or 22 garaged?
23 A
(St. Hilaire)
I'm actually -- I can't relate my 24 knowledge to one specific document.
I had read, as the 25 testimony indicates, a notice of bid specifications; request Heritage Reporting Corporation (202) 628-4888 1
h...
ST. HILAIRE, SAXNER - CROSS
'23213 y v..
L
.1
'for-prcposals; several documents that focused specifically 2
on the' issue ~of using retrofitted school buses as bed buses
~3 to; evacuate people who had ambulatory problems or -iderly, 4
frail, sick, injured, wounded.
5 Q
But in reading that collection of documents did 6.
you learn precisely where the bed buses would be located or 7
where they would be kept prior to their implementation?
8 A'
(St. Hilaire)
I recall reading that there were, L
P at least, discussed several different options.
I'm not sure 10' I was privy to all of theLoptions.
11.
What I do recall is, through the bid proposal,
. hether they were going _to be owned or leased.
That they 1P.
w 13 would be dedicated. exclusively to the ute of either New
-14 Hampshire Yankee or Public Service-of New Hampshire or 15 Seabrook.
To be used, to.be available on a 24-hour basis 16 exclusively for evacuation purposes.
That they would be 17 dedicated.
18 And I believe that the people who would be-19 providing the buses, whatever company won the bid, would.be
-20 required for the maintenance -- have to provide the 21 maintenance of those vehicles.
22 O
Did that proposal describe a location, do you know 23 as a fact --
i 24 A
(St. Hilaire)
There was --
25 Q
-- where those buses would be located?
Heritage Reporting Corporation (202) 628-4888 L
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ST. HILAIRE, 6NER - CROSS 23214 1
A (St. Hilaire)
The..e was a discussion, but to be 2
honest with you I don't recall specifically.
3 Q
Mr. St. Hilaire, I would like to show you a 4
document and ask you if you can recall seeing it.
5 (Document proffered to witness. )
6 THE WITNESS:
(St. Hilaire)
Yes, I have seen and 7
read a copy of it.
8 BY MR. COOK:
9 0
Is this the bid proposal that you were just 10 describing?
11 A
(St. Hilaire)
Yes, sir.
12 Q
Does it say anything about exactly where the bed 13 buses would be kept prior to their use?
{'
14 And in particular, where they might be registered?
15 A
(St. Hilaire)
The only reference is on the second 16 page, halfway down, number one: "All vehicles are to be 17 stored and maintained in a secured area provided by the bus 18 company."
19 0
It doesn't say whether they would be kept in 20 Massachusetts or New Hampshire?
21 A
(St. Hilaire)
That is correct.
22 O
If you will assume with me for a moment that the 23 buses were to be maintained, garaged, and registered in New 24 Hampshire, do you maintain that you would have jurisdiction i
25 and that the Department of Registration of Motor Vehicles
)
l Heritage Reporting Corporation (202) 628-4888 1
l ST. HILAIRE, SAXNER - CROSS 23215 1
would have jurisdiction over matters concerning their 2
registration '.n Massachusetts?
3 A
( r>.. Hilaire)
Based on that statement of facts we 4
would not have jurisdiction on them.
As far as the 5
registration, the titling, et cetera.
6 Q
If I may ask you first, under the terms of the 7
Applicants' aroposal, both the bid proposal that you have 8
identified and any other materials that you may have 9
reviewed in preparing your testimony, is it your 10 understanding that evacuation bed buses will be used only in 11 an event of an emergency at Seabrook Station?
12 A
(St. Hilaire)
It is my understanding that these 13 vehicles would be prepared and set aside only to be used in I
14 the case of an evacuation.
15 0
And at Seabrook?
16 A
(St. Hilaire)
At Seabrook.
17 Q
And if I may now refer you to the last page of the 18 bid proposal, under the title " scenarios" for numbers both 19 one and two.
The second sentence'says, does it not: " Buses 20 must remain dedicated for NHY for emergency response 21 purposes only."
22 A
(St. Hilaire)
Yes.
23 24 25 l
Heritage Reporting Corporation (202) 628-4888 1
I
1 -
- l ST. HILAIRE, SAXNER - CROSS 23216
.1-Q Mr. Saxner, perhaps I could ask Mr. St. Hilaire-to
- t.{.
.2-pass the bid proposal over to you, and ask whether you have l
3
.also seen this?
4
-A (Saxner)
I^have.
5
-Q You have?
l 6
A (Saxner)
Yes.
7 Q
Would you agree that both.it and your testimony.at tz 8
the top of page 6 are in agreement to the effect that 9
evacuation bed buses will be used only in the event of an-10 emergency at Seabrook station?
11 A
(Saxner)
Yes.
i 12 MR. COOK:
Your Honors, at this time I would like j
J 13' to-offer-the bid proposal.as_ Applicants'.84 and.have it.
j
{
' 14 admitted into evidence.
15 (The document referred to was 16
- marked-for identification as
. 17 Applicant's Exhibit No. 84.)
18 (Documents proffered to all parties.)
19 JUDGE SMITH:
Do you object?
j 20 MS. GREER:
I do have a relatively minor' 21 objection, which is:
If you will note that that the top of 22 the page there is a fax receipt number which begins with 23 March 6, 1989, and then dating across it.
24 And also, just below that in handwritten scrawl, 25 it reads "Boyd EX 2, AHB, 3-6-89".
I
{'
t Heritage Reporting Corporation (202) 628-4888 I
a______1___________.___
ST. HILAIRE, SAXNER - CROSS 23217 1
I believe that the copy of the bid proposal that 2
we have in front of us is in fact a copy of an exhibit that 3
was part of Mr. Boyd's deposition.
And I'm not sure whether 4
in fact Mr. St. Hilaire reviewed this exact Boyd exhibit or 5
not.
I certainly would agree that he reviewed a copy of the 6
bid proposal as it reads here with the minor exception that 7
I have noted.
8 And so with the condition that those portions of 9
the document, that is, the fax exception and the Boyd 10 exhibit notice, I have no objection.
But those portions 11 should -- if this document is admitted as an exhibit, it 12 should be admitted with the stipulation that those 13 portions --
['
14 JUDGE SMITH:
Let's just strike those out.
5.
15 MS. GREER:
Fine.
16 MR. COOK:
That's fine.
17 JUDGE SMITH:
Okay, strike them out.
18 MR. COOK:
That is fine.
19 JUDGE SMITH:
All right. Applicants' Exhibit 84 is 20 received.
21
-(The document referred to, 22 having been previously marked 23 for identification as 24 Applicants' Exhibit No. 84 25 was received in evidence.)
f Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - CROSS 23218 1
BY MR. COOK:
2 Q
Mr. St. Hilaire, had you read Section 170.010 of 3
Title 105 of the Code of Massachusetts regulations before 4
you submitted your testimony?
5 A
(St. Hilaire)
No, I did not, to the best of my 6
knowledge.
7 Could you further specify what that section is?
(
i l
8 Q
I will provide you with a copy.
9 (Document proffered to the witnesses.)
10 BY MR. COOK:
11 Q
I would simply ask the same question after you 12 have had a chance to read it.
13 (Witnesses review document.)
14 A
(St. Hilaire)
I have read it just now.
And, no,
(
15 I did not read it before I gave my testimony.
16 Q
Would you pass that to Mr. Saxner, please?
17 A
(Saxner)
I've seen it.
18 Q
You have seen it?
19 A
(Saxner)
Yes.
20 Q
Had you read it before you --
~
21 A
(Saxner)
Yes.
22 0
-- submitted your testimony?
23 A
(Saxner)
Yes.
24 Q
Mr. St. Hilaire, before submitting your testimony, 25 had you ever advised the Registry on the registration of Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - CROSS 23219' 1
evacuation bed buses?
j
'M 2
A (St. Hila 4re)
On evacuation bed buses 3
specifically?
- 4 0
.Yes.
+ '
5 A
(St. Hilaire)
No.
6 0
You never had any previous experience with the 7
registration of a bus set aside for emergency medical 8
transportation?
9 A
(St. Hilaire)
To the best of my recollection, no.
10
'(Pause.)
11' MR. COOK:
At this point, Your Honor, I would move 12 to strike'the testimony of Mr. St. Hileire based upon'the 13 Board's ruling of last Thursday, May 25, 1989, at transcript i
[.
14 22876, in which the Board said, "If this is a case of first j
w 15 impression,.then we will decide it on the law."
16 JUDGE SMITH:
Do you object?
17 MS, GREER:
Yes.
My understanding of the Board's 18 ruling last week was that we all knew, and that was in fact 19 part of the discussion last week, that in fact these 20 gentlemen had never been involved with evacuation bed buses 21 per se before.
That was a given.
That was part of the 22 Board's ruling last week.
23 The Board's ruling last week said, look, I'm not 24 going to be sitting here listening to essentially a 25 speculative consultive opinion on the law, but you were Heritage Reporting Corporation (202) 628-4888 l
l l
____J
ST. HILAIRE, SAXNER - CROSS 23220 f
1 going to be admitting the testimony, s
2 JUDGE SMITH:
Advisory opinion.
3 MS. GREER:
Advisory opinion on the law, on the 4
basis as to the procedures that these individual testified
-5 to having knowledge of as to how they would go about, or 6
whether in fact there would be an exclusion of bed buses 7
from use in the SPMC, if in fact they cre to be implemented.
1 And that was my understanding of the Board's ruling.
9 These individuals have come here today prepared to 10 testify to their past experience with procedures as noted 11 and policy as noted in their testimony.
12 JUDGE SMITH:
Why don't you just say, well, you 13 want to have further examination of them.
14 Is that what you were leading to?
(
15 MS. GREER:
No.
Actually, I believe that in fact 16 my objection to Mr. Cook's motion to strike is really on the 17 basis that he's asking the Board tc reconsider its previous 18 ruling, and I don't believe he has offered anything new.
19 JUDGE SMITH:
Not at all.
Not at all.
20 He's asking now, you promised it.
Deliver.
21 MR. COOK:
Yes.
If the Board will permit me, I 22 have one sentence of explanation.
I would refer the Board 23 to 22877 in which it said, "If they are not productive right 24 off the bat on analogous situations, then we are not going 25 to listen."
Heritage Reporting Corporation (202) 628-4888 l
ST. HILAIRE, SAXNER - CROSS 23221 p-1 JUDGE SMITH:
Do you have anything *urther by way 2
of argument?
3 MS. GREER:
Yes.
I don't believe that in fact 4
we've had any discussion of analogous situations.
Mr. Coo-5 has asked them about evacuation bed buses, but has never 6
asked Mr. St. Hilaire -
r 7
JUDGE SMITH:
That's right.
That's what I said.
6 Do you want to ask them questions?
9 MS. GREER:
If the Board will allow me to, I would 10 be happy -- if Mr. Cook at this point rests his cross-11 examination, I'll be happy to --
12 JUDGE SMITH:
No, this would be somewhat in the 13 form of voir dire to determine whether there are analogous
[
14 situations, because in the answer he elicited he wan rather 15 narrow.
16 MS. GREER:
Yes.
17 JUDGE SMITH:
It was bed buses.
It could have 18 been bed trucks.
Who knows, you know.
Let's see what 19 happens.
20 MR. COOK:
Your Honor, I did ask by way of 21 explanation only about previous experiences with any bus 22 involving emergency medical transportation.
23 JUDGE SMITH:
Set aside for emergency.
24 MR. COOK:
Yes.
25 JUDGE SMITH:
Set aside for emergency l
Heritage Reporting Corporation (202) 628-4888
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ST. HILAIRE, SAXNER - DIRECT 23222 lp 1
transportation.
su 2
MR. COOK:
Yes.
3 JUDGE SMITH:
Well, you can go ahead, inquire and 4
see what gold you can mine here.
5 DIRECT EXAMINATION (Continued) 6 BY MS. GREER:
7 Q
Mr. St. Hilaire, have you had previous experience 8
'with the licensure of emergency vehicles in general?
9 A
(St. Hilaire)
Yes.
10 Q
Apart from emergency bed busee?
11 A
(St. Hilaire)
Not so much with licensing, but 12 with registration.
13 Q
Registration.
I'm-sorry.-
14 As a point of clarification and to make sure we
{
15 are using the same terminology here, am I correct in 16
- believing that registration is what the Registry does with 17 respect to vehicles and licensure is what the Registry does 18 with respect to issuing driving permits't 19 A
(St. Hilaire)
Yes.
20~
Q With respect to -- can you please describe for the 21 Board your past experience with the registration of 22 emergency vehicles and your knowledge as to the kinds of r
23 procedures that are used in registering those sorts of 24 vehicles?
25 A
(St. Hilaire)
Which type of vehicles?
Heritage Reporting Corporation (202) 628-4888 e__
ST. HILAIRE, SAXNER - DIRECT 23223 1
Q Emergency vehicles.
2 A
(St. Hilaire)
Emergency vehicles.
3 Q
6mergency ambulance vehicles, vehiclos for which 4
you would need to have some kind of certification from a 5
sister agency such as Public Health.
+
6 A
(St. Hilaire)
Well, as far as -- let me start off 7
with ambulances.
And basically, in Massachusetts, from a 8
Registry perspective as opposed to Public Health, any 9
vehicle that is used exclusively for the transportation of 10 sick or injured people is an ambulance.
11 And under Massachusetts general laws, to operate 12 an ambulance, one has to be certified by the Department of 13 Public Health.
We register ambulances, the motor vehicle 14 registration, and while we don't always require as part of 15 the registration process, the submitting of a certification 16 from the Department of Public Health, were we to issue an 17 ambulance registration to a vehicle and subsequently found 18 out that they were being used as an ambulance without proper 19 certification, (a) our compliance unit would probably go out 20 and revoke the registration plate; and we would notify 21 Public Health, the sister state agency, that there was 22 somebody in violation of their regulations and domain.
23 I have never, in the four years or more that I 24 have been associated with the Registry, ever had knowledge 25 of a situation where someone had registered a vehicle as an l
l 1
i Heritage Reporting Corporation i
(202) 628-4888 1
1 l
I.
I ST. HILAIRE, SAXNER - DIRECT
'23224-1 ambultnce when it was not an ambulance.
'2 Ambulances, in Massachusetts, are given the 3
special registration designation and several other 4
privileges,-if you will, relative to motor vehicles that 5
most othre vehicles on the road do not enjoy.
Ambulances 6
are given permission by the Registry to use oscillating red 7
lights'and to use sirens in the case of emergency 8
situations.
9 And the reason for that is that the other 10 motorists on the ways of the Commonwealth can be charged 11 with a criminal violation, a misdemeanor, if they fail to 12 yield the right of way or willfully obstruct the passage of 13 an ambulance responding to an emergency situation with its 14 lights and/or sirens on.
15 They also are exempted from certain traffic 16 control devices and can have the right of way in other 17 situations.
18 So by being designated an ambulance by the 19 Registry of Motor Vehicles, this vehicle inures to special 20 privileges in its operation on the highway that other 21 vehicles would not be entitled to.
And were we to find out 22 that a vehicle was not an amtalance, but using the trappings 23 of an ambulance, we would immediately respond to that.
24 Q
If you were to learn in advance that a vehicle was 25 going to be registered, in fact met the specifications of
. (-
1 Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER -' DIRECT 23225 1
being an ambulance, and then came'in seeking a registration j
,r 2
from you to that effect, would you issue such a license to 3-them?
4 A
(St. Hilaire)
If we knew --
1 5
MR. COOK:
Objection, Your Honor, in that that is
=
l 6
a conclusion -- that question calls for a conclusion as
~
7-distinguished from the last question which describes 8
previous practices.
9-JUDGE SMITH:
Let's have that question back.
10 (Accordingly, the court. reporter read back the 11' pending question.)
12 13
. (
14 15 16 17 18 19 20 I
1 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
)
i
ST. HILAIRE, SAXNER - DIRECT 23226 1
JUDGE SMITH:
Overrulec.
y 1
[
2 You may answer.
p l
3 THE WITNESS:
(St. Hilaire)
Could I indulge the 4
Court, could you replay that one more time.
I didn't --
5 JUDGE SMITH:
Well, I think there is a problem 6
with the question.
j 7
Play it back.
8 (Whereupon, the reporter played back the pending 9
question.)
10 THE WITNESS:
(St. Hilaire)
Would you like me to 11 respond?
12 JUDGE SMITH:
Yes, you may.
13 THE WITNESS:
(St. Hilaire)
What we would do, as i
j 14 I understand the question, that a vehicle met the criteria 15 of an ambulance and came in to be registered as an 16 ambulance, we wouldn't license them but we would register j
17 them.
If it's an ambulance and it came in with the proper 18 registration document, yes, we would register it.
19 BY MS. GREER:
20 0
Would you register them if you knew that, in fact, 21 they were an ambulance under your registry of motor vehicles 22 regulations and law and procedures, but did not have a 23 certificate?
If you knew in advance they did not have a 24 certificate, would you register them as an ambulance?
j l
25 A
(St. Hilaire)
If we knew that we would not.
s I
t t
Heritage Reporting Corporation l
(202) 628-4888
h ST. HILAIRE, SAXNER - DIRECT
'23227 1
JUDGE SMITH:
You're just pursuing the very
'2 problems that we had with the testimony last week and that 3
is, unless you get down to actual practice we are-unlikely 4
to accept-an advisory opinion.
5 MS. GREER:
Okay.
6 JUDGE SMITH:- That's for purely evidentiary legal 7
reasons, gentlemen.
There is no question here about your 8
competency or integrity at all.
It is just that we happen.
9 to.be the people.who are charged with deciding matters.
10 And we want to know your view of the law as it'is.
11 reflected in actual practice.
12 BY MS. GREER:
13 Q
To use an analogous situation.
{
14 Are you familiar with the disaster vehicles, ones 15 that are owned by charitable corporations such as Red Cross 16 and receive disaster plates?
17 A
(St. Hilaire)
Yes, I am.
18 Q
Is there a special affidavit that must be filled 19 out before you accept registration of those vehicles as a 26 disaster vehicles?
21 A
(St. Hilaire)
Yes, there is.
22 Q
And that affidavit, in an analogous situation, one 23 must present that ahead of time; correct?
24 A
(St. Hilaire)
That's correct.
j 25 If I can say one thing about that: ambulances are Heritage Reporting Corporation (202) 628-4888 L
{
3T. HILAIRE, SAXNER - DIRECT 23228 1
somewhat different because they are highly regulated by 2
another state agency.
And some of the other disaster 3
vehicles are not so tightly regulated.
And therefore, when 4
we deal with them and give them their special disaster, 5
emergency disaster plates, we basically are the only 6
screening mechanism.
The only screening agency in the 7
Commonwealth.
8 O
Is the distinction that you're making then with 9
respect to the strict scrutiny given by your on-line window 10 personnel at the Registry or is the distinction that you're 11 making with respect to the kinds of procedures that would 12 normally be involved?
13 A
(St. Hilaire)
No.
14 What I'm saying is the ambulances and ambulanc -
15 services, ambulance businesses in the Commonwealth are 16 highly regulated by my colleague's agency under the 17 Department of Public Health.
And it is basically their 18 jurisdiction.
19 We have a very limited role in terms of the motor 20 vehicle applications.
21 In the other types of vehicles that you are 22 talking about, they are not so highly regulated and, quite 23 frankly, except for the affidavits and the documentation 24 that we receive from them and our own investigations or 25 inspections, are the only regulating mechanism for these k.
Heritage Reporting Corporation (202) 628-4888
a ST. HILAIRE, SAXNER - DIRECT 23229 1
groups.
p 2
And it would be no different than farm plates, 3
dealer repair plates, owner repair plates, a number of 4
specialized plates.
Ambulance plates are not that high a 5
priority for us because there is another state agency that 6
monitors them.
a 7
Q So, am I correct in understanding that essentially 8
the procedures are similar but that the level of scrutiny 9
you would typically give to an ambulance may not be as great 10 as, for instance, for a disaster vehicle simply because you 11 are relying on public health to do that kind of inspection?
12 A
(St. Hilaire)
Not only that but --
13 Q
Was that "yes"?
f 14 A
(St. Hilaire)
Yes, I agree with you on that.
s 15 The other point I want to make is that, if you 16 have an ambulance plate on your vehicle in Massachusetts, a 17 Massachusetts registered vehicle, it has to be an ambulance.
38 But in theory you could have a licensed r.mbulance, 19 unless it's required by "your" agency -- (pointing to Mr.
20 Saxner) -- that didn't have ambulance plates.
21 Q
But essentially, at that point you are saying you 22 are relying on Public Health to do that kind of an 23 inspection?
24 A
(St. Hilaire)
Yes.
25 MS. GREER:
Do you want me to pursue this voir Heritage Reporting Corporation (202) 628-4888 i
ST. HIIAIRE, SAXNER - DIRECT 23230 1
dire any further?'
2 JUDGE SMITH:
It's your responsibility.
3 You know what our ruling was.
Whenever you feel 4
you are ready for a ruling, we will rule.
5 MS. GREER:
Okay.
6 Give me one second then.
7 (Counsel confers.)
8 BY MS. GREER:
9 Q
Mr. St. Hilaire, have you have either personal 10 experience or knowledge, through the Registry, of vehicles 11 such as disaster vehicles that either have their 12 registration pulled or rejected from registration because it 13 did not meet the Registry's criteria?
14 That was kind of a long question.
{
15 Do you understand the question or shall I break it 16 down?
17 A
(St. n11 aire)
Are you talking specifically about 18 emergency disaster plates or about any type of plate that 19 has been misused?
20 Q
Not necessarily emergency plates per se or 21 disaster plates per se, but any kind of procedure in which 22 registrations have been pulled or rejected because it did 23 not meet the Registry's criteria?
24 A
(St. Hilaire)
It happens from time-to-time.
25 In the Inst year there have been numerous repair Heritage Reporting Corporation (202) 628-4888 1
1
ST. HILAIRE, SAXNER - DIRECT 23231 1
plates pulled because of repair plate abuse.
And most 2
recently, a little over a week ago some municipal police 3
plates were pulled from what turned out to be a private for-4 profit business operating under a name very similar to a 5
county sheriff's office.
And both the Department of Revenue l
6 and the Registry had issued these plates and exempted them 7
from fees and sales tax believing it was a political 8
subdivision of the Commonwealth.
And those plates were 9
immediately pulled when it came to our attention from a 10 reporter from a newspaper.
It happens all the time.
11 Q
So is it fair to say that, in fact, the Registry 12 does have in place practices and procedures for pulling 13 plates or refusing to issue plates for vehicles that do not 14 meet the Registry's criteria?
4 15 A
(St. Hilaire)
The Registry's criteria for 16 whatever type of plate it happens to be.
And we do have a 17 registration compliance unit that is charged with making 18 sure that vehicles are properly registered in the 19 Commonwealth.
20 MS. GREER:
I have nothing further.
21 JUDGE SMITH:
We'll take our afternoon break, 22 return in 15 minutes.
23 Is there anything further you have on this panel?
24 MR. COOK:
On the entire panel?
25 JUDGE SMITH:
Well, both of them.
Heritage Reporting Corporation (202) 628-4888
tc ST. HILAIRE, SAXNER - DIRECT 23232 1
You don't know until we tule?
2 MR. COOK:
That's correct.
3 JUDGE SMITH:
All right.
4 We'll rule after the break.
5 (Whereupon, a recess was taken.)
6 JUDGE SMITH:
The Board is granting the moti>n to<
7 strike the testimony with respect to the advisory opinion.
8 Our previous ruling holds that it will have to be our 9
responsibility as to what the law is prospectively.
10 We provided an opportunity to Anquire into what 11 the actual practices have been or how the law has actually 12 been implemented and applied in Massachusetts.- And it has 13 been implemented-and applied in ways.not relevant to the 14 facts before us, in our view.
And indeed, when the
{
15 testimony did get in a direction more relevant to our 16 issues, it doesn't favor the direct testimony at all.
17 They pointed out that disaster type vehicles.are 18 not the type that are covered in the. direct testimony.
19 So the testimony is stricken.
20 MS. GREER:
Just as a clarification on that.
21 JUDGE SMITH:
There is no time, in my experience, 22 Ms. Greer, with your presence here, that after a L ?.rd 23 ruling you don't have more information to offer or something 24 else to say.
It happens, virtually, every time.
And that 25 isn't the point.
/
i Heritage Reporting Corporation (202) 628-4888 j
ST. HILAIRE,.'SAXNER - DIRECT-23233 E.
1 I think our. ruling is crisp and clear and 2
understandable; the' testimony is out.
And we very patiently 3
gave you an opportunity to make all your arguments and 4
establish all of your voir dire on it, and now you have had 5
the' opportunity.
6 Now, once again, recalling what the standards are 7
for reconsideration, not a wrong decision -- not even a 8
' grossly wrong decision, but one which is profoundly based 9
upon misapprehension of fact or confusion or something like 10 that, which I don't think that you're going to argue.
21 MS. GREER:
My clarification: I understand the 12 Board has stricken Mr. St. Hilaire's testimony as it'has 13 been submitted.
.{
14 Am I correct in also assuming that any testimony 15 that he has given here today, any questions and answers to 16 those questions would also be excluded for the purposes of.
17 any findings?
18 JUDGE SMITH:
That's correct.
19 MS. GREER:
Okay.
20 JUDGE SMITH:
The testimony we have here is as if-l 21 he did not testify.
As if the direct testimony was not j
22 presented.
l 23 You are quite correct in raising that.
Nor is his 24 testimony with respect to the different standards for 25 disaster vehicles, is that available for proposed findings.
l
(
Heritage Reporting Corporation (202) 628-4888 1
k ST. HILAIRE, SAXNER - DIRECT 23234 1:
However, the entire testimony is available for 2
appeal purposes, obviously.
3 MS. GREER:
And then just as another follow-up 4
question on the same line:'what does that do to Exhibit 847 5
Is that also then rejected?
6 JUDGE SMITH:
I don't know.
7 I don't know what the' state of the evidence is 8
before us on this issue other than the testimony as to the 9
legal opinion on the registrability of the bed buses is out.
10 I suggest that you come back to that point.
11 MR. COOK:
Your Honor, may I have 'ust a moment to 12 confer.
13 JUDGE SMITH:
Yes.
14 MR. COOK:
Thank you.
15 (Counse7 con fers. )
16 '
17 18 19 20' 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - DIRECT 23235 1
JUDGE SMITH:
I think that we don't need this
~
2 panel to sit here; they are busy people.
We don't need them 3
to sit here while we thrash out these legal problems.
4 If there is nothing else we will excuse them and 5
let them get back.
6 MR. COOK:
Yes, Your Honor.
~
7 JUDGE SMITH:
What's your motion with respect to 8
Mr. Saxner's testimony?
9 MR. COOK:
If I might answer your first question.
10 JUDGE SMITH:
I was thinking tnat the motion 11 encompassed both of them.
12 MR. COOK:
Yes, it does.
13 JUDGE SMITE:
There is nothing relevant about f1 14 either.
L 15 MS. GREER:
W931, actually, if I may then do voir 16 dire with respect -- the motion initially only went to Mr.
17 St. Hilaire.
If I may then do a voir dire with respect to 18 Mr. Saxner.
19 JUDGE SMITH:
All right.
20 But my understanding was that it was to both 21 witnesses.
22 MS. GREER:
Okay.
23 JUDGE SMITH:
But if you want to go back to him 24 now because you misunderstood, is that it?
25 MS. GREER:
Actually, I believe that --
Heritage Reporting Corporation (202) 628-4888 L
'1
-j
- ST.-HILAIRE, SAXNER
. DIRECT 23236' l
l
'UDGE SMITH:
You think you understood correctly,
}.
1.
J
&^
2 but'I misunderstood.
3.
MS. GREER:
I would take c!>rification from Mr.
4 Cook, but I think'his application was only with. respect to 5~
striking Mr. St. Hilaire's.
6-JUDGE SMITH:
No.
The original motion was for 7
both of them..
8 JUDGE COLE:
That was not my recollection.
9 JUDGE SMITH:
Let me regroup here..
10 MR. TROUT:
The written motion was to both, Your 11 Honor.
12 JUDGE SMITH:
Right.
13 The written motion was for both..
14 MR. COOK:
The oral motion was as to Mr. St.
15 Hilaire.
16 JUDGE SMIT:i:
Only..
17 MR. COOK:
But in view of the voir dire the 18 reference was to the entire.
19 MS. GREER:
Okay.
20 I was only voir diring,'though --
21 JUDGE SMITH:
All right.
22 Go ahead with Mr. Saxner.
23 DIRECT EXAMINATION (Continued) 24 BY MS. GREER:
25 Q
Mr. Saxner, have you had past experience with l
l
(
Beritage Reporting Corporation (202) 628-4888 1
j I
ST. HILAIRE, SAXNER - DIRECT 23237 1
1 respect to the enforcement procedures against noncertified i
g.
L 2-ambulance-services in Massachusetts?.
j 3-A (Saxner)
Yer.
4 The Department has taken action against operations 5
which we believed were serving as ambulance services but y
6 which failed to.obtain a license as an ambulance service.
j
)
l 7'
In addition, the Department has dealt with a lot 1
8 of issues involving licensure of vehicles and services that d
9 do not fit'into the traditional model of an ambulance 10 service per se, whether it be helicopters.
It might be 11 civil defense vans or trucks or station wagons.
Something 12 like the station wagon of a police chief where a cot is put 13 on the back of it and it is intended to serve as an 14 ambulance service.
15 We have licensed those type of entities and we 16 have also taken action to prevent the operation of those 17 types of entities, where we found them operating without a l
18 license.
1 19 Q
What kind of criteria do you apply in looking at 20 those kind of -- for want of a better word I will call them 21
-- irregular ambulances?
22 A
(Saxner)
We would look to the same standards that 23 we would look to in the licensure of any ambulance service 24 which is the Department's regulations on the licensure of 25 ambulance services.
Heritage Reporting Corporation (202) 628-4888 w_____________
y l
ST.~HILAIRE, SAXNER - DIRECT
.23238i 1
They' set forth extensive standards'in terms of-b-
~
2
- vehicles, equipment, and personnel.
There are different 3
requirements that may be applied to certain types of 4
-vehicles such as helicopters or vans, but that'is the set of 5
regulations that we would use as our guide in determining 1L 6
whether this particular entity should be licensed or not..
-7 Q
And have you actually had experience in the past 8
where people have attempted to operate such vehicles as 9
ambulances without getting them licensed or who have 10 operated them with improper licensure?
1
~11 A
(Saxner)
Yes.
12 We've had to my understanding, the Department has 13 had numerous occasions where on.an. informal basis it will
{f'
'14 take action against something like.a civil defense 15 operation.
Maybe take action is too strong a term.
But 16
-will.act where there is a civil defense operation or perhaps 17 a police department that wants to operate a vehicle and we 18 will be able to resolve that by them either obtaining a 19 license or stopping operation of the service.
20 Then we have also encountered situations where we 21 have had entities that have attempted to operate what we 22 believe to be an ambulance service.
23 In one case there was an operation in New j
24 11ampshire which was coming down to provide emergency service 25 at motorcycle races for young adult-that we believed to be f
Heritage Reporting Corporation (202) 628-4888 l
--_-_-_____--____--A
ST. HILAIRE, SAXNER - DIRECT 23239.
1L within the realm of the Department's regulations and l'
2 statutes'and-we did-take action.
We sent out our: people to
- 3-see whether, in fact,-they were doing that.
We found.that, 4
in fact, they were serving in that capacity we did refer-it 5
to the. Attorney General's office.
We worked with the 6
Attorney General's office.
We got an injunction against 7
that entity from operating in Massachusetts without'a
.8 license.
9 Q
To follow-up-on a question that was initially 10 directed to Mr. St. Hilaire, Mr. Cook asked if, in fact, the 11 buses were based in New Hampshire, garaged in New Hampshire,-
12 but would the Registry have any jurisdiction over them.
I
~
13 believe Mr. St. Hilaire's answer.was that the Registry would
(
14 not.
15 If busos were set up as evacuation bed buses and 16 were to come into Massachusetts to pick up people here in
)
17 Massachusetts to be transported within Massachusetts, would l
-18 Public Health have jurisdiction in-that kind of a situation?
l 19 A
(Saxner)
It's the Department's position that, 1
l 20 yes, we would have jurisdiction.
Our regulations require l
L' 21 that any ambulance service that has a contract to provide 22 emergency medical services within the Commonwealth must receive a license from the Department.
23 1
24 The reason for that is simple, that we are 25 concerned about the quality of care that's going to be i
lI Heritage Reporting Corporation I
I (202) 628-4888 l
i 2
ST. HILAIRE, SAXNER - DIRECT 23240 7;
1 provided'to Massachusetts citizens,_and feel that the fact f;
2
'that an-ambulance service is coming from across the. border
~ 3 doesn't negate our responsibility to~ protect the citizens of
'4 thisLCommonwealth.
5 MS. GREER:
Excuse me for one second.-
6 (Counsel confers.)
7' BY MS. GREER:
8 Q
I believe on Mr. Cook's examination he asked:you 9
whether you had at some point seen Exhibit 84?
10 A
(Saxner)
Which is?
11 Q
It is the bid proposal?
12 And that has been admitted subject to 13 clarification-in this proceeding..
14 I'm going to ask you to take a look at-the last 15' page of Exhibit 84.
I'm-sorry, my copy may not have it 16 '
here, but the bid proposal that I b'lieve -- let_me ask you 17
'this: how many pag 53 does your Exhibit 84 have?
18 A
(Saxner)
Six pages.
19 Q
I've only got three pages here.
20 MR. COOK:
Are you sure that has six pages?
21 THE WITNESS:
(Saxner)
No, it's five.
22 MR. COOK:
And that the title page says, "Seabrook 23 Station Bus Furchase/ Lease Request for Proposal?"
24 THE WITNESS:
(Saxner)
Yes.
25 MR. COOK:
Is that the same document that Mr. St.
Beritage Reporting Corporation (202) 628-4888
- = -
ST. HILAIRE,.SAXNER - DIRECT 23241 1
Hilaire passed over to you?
. k' c
2 THE WITNESS:
(Saxner)- Yes.
3 MR. COOK:
That has five pages?
L 4
THE WITNESS:
(Saxner)
No, it is not.
5 The one that I was looking at has an attached 6-bidder's list to it.
7-
~BY MS. GREER:
8 Q
Okay.
9 In the bid proposal document that you looked at, 10 prior to submitting your testimony, is there a bidders list 11 attached to the bid proposal?
12 A
(Saxner)
Yes, there is.
13 Q
And where are those bus companies located?
The
{
14 bus companies who were solicited to submit bids?
15 A
(Saxner)
The vast majority, it looks as though 16 all but two are from Massachusetts.
17 Q
And can you name the two that do not have 18 Massachusetts addresses?
19 A
(Saxner)
One is McGregor-Smith,from Plaistow, New 20
' Hampshire.
21 Q
And is that an actual address-there or is that a 22 Post Office Bex?
23 A
(Saxner)
It's a Post Office box.
24 Q
Do you happen to know offhand where McGregor-Smith 25 is based, the McGregor-Smith Bus Company?
., +
l Beritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - DIRECT 23242 1
A (Saxner)
No, I have no idea.
k.
2 Q
What is the other bus company that is located in 3
4 A
(Saxner)
Bus and Bodies, also, Plaistow, New 5
Hampshire.
Also, a Post Office Box.
6 Q
And are all the other bus companies who requested 4
7 to submit bids in connection with this bid proposal located 8
in Massachusetts?
9 A
(Saxner)
Yes, they are.
10 Q
And would all such companies if, in fact, they 11 chose to operate an ambulance service be within the 12 jurisdiction of the Department of Public Health?
13 A
(Saxner)
Yes, they.would.-
14 Q
If there are New Hampshire bus companies who
{
15 attempted to operate evacuation bed buses in Massachusetts, 16 would they be within the jurisdiction of the Department of 17 Public Health?
18 A
(Saxner)
That would be our position, yes.
19 Q
And would they be subje ct to the same kind of 20 enforcement procedures that you previously described in your 21 testimony here today?
22 A
(Saxner)
Yes.
23 MS. GREER:
No further questions.
24 JUDGE SMITH:
Do you have any?
l 25 MR. COOK:
Yes, Your Honor.
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - CROSS' 23243 1
CROSS-EXAMINATION (Continued)
'E
.2 BY MR. COOK:
q 3
Q Mr. Saxner,'do you have previous experience 4
advising the Department of Public Health with respect to the 5
certification of vehicles to be used for emergency medical 6
transportation where Regulation 170.010 was at issue?
7 A
(Saxner)
It may have come up in the context of 8
one of these civil defense vehicles at one point.
4 I cannot clearly recall the issue.
I
'10 Q
You used the word or the phrase " services" when 11 you described, in response to Ms. Greer's questioning, your 12 experience in the past as far as the Department of Public-13 Health's response to the operation of certain vehicles that 14 you found inadequate; is that correct?
-(
15 A
(Saxner)
You will have to give me more 16 clarification on that.
17 Q
Ms. Greer asked, did she not, w59ther there were 18 certain vehicles, uncertified vehicles that the Department 19 of Public Health had taken enforcement proceedings against 20 in the past because they were not certified?
21 A
(Saxner)
That's correct.
I 22 Q
And what exactly were those vehicles used for?
)
23 A
(Saxner)
They were used for the transportation of 24 sick or injured individuals.
25 O
And when were they used, precisely?
/*
Heritage Reporting Corporation (202) 628-4888 1
j
._____-_________-_____-__-_0
ST. HILAIRE, SAXNER - CROSS 23244 1
A (Saxner)
You will have to be clearer.
2 O
I will endeavor to be.
3 Were they used on more than one occasion?
4 A
(Saxner)
Yes.
5 Q
They were used on more than one occasion.
6 They were not reserved for a particularly severe 7
emergency, then, were they?
8 A
(Saxner)
They were used for what I would regard 9
as a severe emergency.
And they were used in a very unique 10 context.
It may have been more than one time, but it was a 11 very finite situation in which they were used solely for the 12 purpose of providing emergency care during motorcycle races 13 of which there were not very many.
And that was the sole 14 function which that particular service had in Massachusetts.
15 JUDGE SMITH:
Was it standby at a motorcycle race?
16 THE WITNESS:
(Saxner)
Yes.
17 BY MR. COOK:
18 0
Would you consider an accident in a motorcycle 19 race to qualify under the term " major catastrophe" as it is 20 used in the regulation that you have identified that you are 21 familiar with?
22 A
(Saxner)
No.
23 MR. COOK:
Well, then I would move to strike, Your 24 Honor, Mr. Saxner's testimony.
25 MS. GREER:
If I may do follow-up?
/*i Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER --DIRECT 23245
-1.
> JUDGE SMITH:
Yes.
2 DIRECT. EXAMINATION (Continued) 3 BY MS. GREER:
4 Q
Mr. Saxner, you have previously stated that you 5
are familiariwith the regulations cited by Mr. Cook, 6
How are you familiar with that regulation, in what 7
context?
8 A
(Saxner)
The issue has arisen in the context of 9
civil defense vehicles that are to be used generally where 10 there is some sort of catastrophe being planned for or 11 envisioned.
12 Q
What is that regulation -- how is that regulation 13 applicable to that situation?
14 A'
(Saxner)
The issue had arisen as to whether that 15 regulation, in fact, applied to the situation where there 16 was planning going on for this type of catastrophe.
17 It was our interpretation of that regulation at 18 the ti ne that, in fact, this particular provision of the 19 regulations did not apply to the situation where there was 20 planning going on for a catastrophe.
21 It was our interpretation that that section 22 applied solely to the situation where a catastrophe has 23 arisen, and after the fact people have to -- for one of a l'
24 better word -- scrounge around for. vehicles to be able to 25 take people out of a catastrophe.
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - DIRECT 23246 1
The intent, as we read it, of that section was to i
2 avoid discouraging people in an emergency, in a catastrophe l
I 3
from coming to the assistance of people at that catastrophe.
4 That they might otherwise fear that in some way they would 5
be fune.tioning as an ambulance service.
6 But that situation we found was not analogous to 7
the situation of, say, civil defense vehicles which were to 8
be held in readiness for some sort of a future event.
9 Our feeling was that the regulations were not 10 intended to go as far as the situation we were trying to 11 plan: for some sort of catastrophe or emergency.
12 Q
In the event that a civil defense type vehicle was 13 set aside or another type of an emergency response vehicle 14 was set aside to be used for emergency purposes, would it
[
15 make any difference to the Department of Public Health --
16 JUDGE SMITH:
Again, I would like for you to focus 17 your questions on what has actually been the practice.
18 Again, I don't want perspective or advisory opinion on it.
19 MS. GREER:
Okay.
20 JUDGF SMITH:
They are only here now on this voir
~
21 dire as to what the actual practice has been.
22 MS. GREER:
Okay.
23 BY MS. GREER:
24 0
You testified that you have sought enforcement 25 proceedings against or you have, in fact, gone out and f
Heritage Reporting Corporation (202) 628-4888
ST. 'HILAIRE, SAXNER - DIRECT 23247
)
1 enforced civil defense vehicles to comply with the statute.
t 2
Mr. Cook then asked, were those vehicles used more 3
than once.
4 My question to you is: would it make any 5
difference whether -- and you said, yes, they have been used I
6 more than once.
7 My question to you is: with such vehicles does it 8
make any difference whether they're used more than once or 9
not?
10 JUDGE SMITH:
Or did it make any difference.
11 BY MS. GREER:
12 Q
Or did it make any difference whether they were 13 used more than once?
14 A
(Saxner)
No, it wouldn't make a difference.
15 0
And did it make any difference as to how many 16 times they had been used?
17 A
(Saxner)
No.
18 Q
With respect to such vehicles, if they're set 19 aside, is there a requirement that there be a primary 20 response unit before such vehicles can be called into use?
21 A
(Saxner)
Yes.
22 JUDGE SMITH:
Well, Ms. Greer, I want you to stick 23 by the -- if you don't object, Mr. Cook, there's not much I 24 can do.
But the understanc.ing was that the Board doesn't 25 want anymore legal advise separated from actual practice and
(
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - DIRECT 23248 1
implementation of the law.
(
2 MR. COOK:
Yes, Your Honor.
3 I hesitate to interrupt a situation when the Board 4
has expressed its desire to have voir dire on the subject.
5 I do want to object and continue to object to any advisory 6
opinions, and in particular, statements that go beyond the 7
particular facts at hand, as the Board expressed its 8
concern, with whether this is a situation of first 9
impression.
10 JUDGE SMITH:
All right.
11 12 13 15 16 17 18 19 20
~
21 22 23 24 25 7
i Heritage Reporting Corporation (202) 628-4888
ST. HIIMRE, SAXNER - DIRECT 23249
. JUDGE SMITH: ~Go ahead.
2 MS. GREER:
Let me frame it this.way.
3 BY MS. GREER:
4 Q
In doing the enforcement procedures with respect u
S to the civil' defense vehicles that you've described, was one 6
element'in the licensure or nonlicensure of those vehicles T
the existence of. primary response units?
8' A
(Saxner)
Yes.
Yes, it's --
9 JUDGE SMITH:
Tell us what type of vehicle, what 10 the circumstances were.
11 THE WITNESS:
(Saxner)
Well, there have been a
' 12.
. variety of different vehicles that have been used.
13 My understanding.is that it includes things like 14 station wagons,-there may be some sort of form of truck or
]
15 van.
16 I cannot say what -- I'm not sure what you mean by 17 the " circumstances".
But it has been --
18 JUDGE SMITH:
Well, were these National Guard 19 vehicles?
20 THE WITNESS:
(Saxner)
They are usually 21 municipal.
On occasion, I believe, they may be state 22 vehicles.
o 23.
JUDGE SMITH:
And they are not used.
They are 24 exclusively set aside.
These are vehicles of municipalities 25 exclusively set aside to use in a disaster.
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE,-SAXNER - DIRECT 23250 1
THE WITNESS:
(Saxner)
Yes.
2 JUDGE SMITH:
They don't use them for anything 3
else, sitting there all the time?
4 THE WITNESS:
(Saxner)
I honestly can't answer 5
that.
I don't think, from our standpoint, that that --.as 6
the issue was raised to me, that was not a factor.
7 I think the factor for us to consider was whether 8
they would be used for the transport of sick or injured 9
individuals.
If they were, then we had a concern that those 10 people who were being attended to be attended to with the l
11 proper equipment and personnel.
12 JUDGE SMITH:
But your point was if the chief had 13 a station wagon that he used for carrying prisoners, he 14 would not be in violation of your certification law if he
{
15 used that station wagon, in the event of a disaster, to 16 transport an injured person.
17 THE WITNESS:
(Saxner)
Yes.
If after the fact, 18 if this assistance occurred after the fact where the 19 emergency had arisen, there were no other vehicles around, 20 then that would be fine.
21 I think our problem would come in if, if the chief 22 ever came to us and said, look, I just want to hold this 23 vehicle off and use it should something come up, we're going 24 to set it to the side and use it for all sorts of other And then if there is an emergency, we're going to 25 purposes.
d Heritage Reporting Corporation (202) 628-4888 l
ST. HILAIRE, SAXNER - DIRECT 2 L 251.
1 use it to transport people.
We would have a concern abvut 2
that, because this is something that can be anticipated.
)
3-If they are trying to build it into --
4 JUDGE SMITH:
Even though it had multiple uses 5
other times, if one of the alternate uses was to. transport i
6 injured people, you would want to bring them into your
-7 department?
8 THE WITNESS:
(Saxner)
Yes.
To the extent that 9
we can, we want to be able to protect those people who are 10 being transported in these vehicles and make sure --
11 JUDGE SMITH:
So what if-the chief says, okay, you 12 know, I can't go through this.
In the event of a disaster, 13 they can just stay there, just sit there.
{s 14 THE WITNESS:
(Saxner)
Well, somehow --
15 JUDGE SMITH:
It doesn't work out that way.
16 THE WITNESS:
(Saxner)
It doesn't work out that 17 way.
18 JUDGE SMITH:
You will work it out.
19 THE WITNESS:
(Saxner)
Yes.
20 BY MS. GREER:
l 21 Q
In the event of a catastrophe, that regulation 1
22 that you referred to before -- strike that.
23 When I say the word " good samaritan statute", do 24 you know what kind of statute I'm referring to?
25 A
(Saxner)
Generally, yes.
.l i
Heritage Reporting Corporation (202) 628-4888 i
l ST. HILAIRE, SAXNER - DIRECT 23252 1
Q
'Okay.
Would this regulation that you have
. f\\.
2 referred to essentially be equivalent to a --
3 MR. BACHMANN:
Objection.
4 MR. COOK:
Objection.
5 MR. BACHMANN:
You are asking for a legal opinion, 6
advisory opinion.
7 JUDGE SMITH:
As he applied it.
As he applied it.
8 If he has applied it in his work, that's one thing.
9 If he's just explaining it to the Board, 10 unfortunately, we cannot -- you can make our job a lot 11 easier by giving us this advice, but unfortunately, we have 12-to make these judgments ourselves.
13 MR. BACHMANN:
The question was. phrased "would it 14 apply".
h.
15 JUDGE SMITH:
Yes.
I'think he's correct.
He's 16 '
right.
l 17 MS. GREER:
I will rephrase that.
18 BY MS. GREER:
19 Q
In your past experience with this statute, has it.
I j.
20 been used essentially as a good samaritan regulation?
21 A
(Saxner)
Yes.
22 JUDGE SMITH:
Anything further?
23 MR. COOK:
Yes, Your Honor.
24 JUDGE SMITH:
All right.
25 f
Heritage Reporting Corporation (202) 628-4888
ST. HILAIRE, SAXNER - CROSS 23253-1 CROSS-EXAMINATION (Continued) 2 BY MR. COOK:
3 Q
Mr. Sarner, what is your experience in' dealing 4
with disasters that involve the proportions that the term 5
" major catastrophe" suggests?
6 MS. GREER:
I'm sorry, 7
BY MR. COOK:
8 Q
What is your experience?
9 A
(Saxner)
My direct hands on, I would say --
10 0
With the certification of vehicles used during 11 major disasters.
12 MS. GREER:
Objection as to form.
It's unclear, I 13 think, from the question, are you referring to specifically 14 his experience with the catastrophe regulation?
k 15 MR. COOK:
I will rephrase the question.
16 BY MR. COOK:
17 Q
What is your past experience with respect to the 18 licensing and certification, as you have indicated you have 19 been involved with in the testimony, with respect to the 20 licensing and certification of vehicles during a major 21 disaster?
l l
22 A
(Saxner)
I don't understand the question.
)
I l
23 Q
Have you had any experience with vehicles not j
4 l
24 certified to transport individuals -- strike that.
25 Have you had any experience with uncertified l
l 1
Heritage Reporting Corporation (202) 628-4888
[
ST. HILAIRE, SAXNER - CROSS 23254 1
vehicles in major disasters?
2 A
(Saxner)
What do you mean by " experience"?
3 0
By " experience", I mean the provision of advice to 4
your department in the form of recommendations about the 5
certification of those vehicles.
6 A
(Saxner)
I think I have already stated in general 7
what my advice has been with respect to those types of 8
vehicles.
9 JUDGE SMITH:
His question, however,'is:
What is f
10-the nature of the disaster, what is the magnitude of the 11 disaster that formed the concept to the context of your 12 advice.
What was your postulated emergency disaster?
13 Isn't that your question?
Wasn't that the 14 question?
15 MR. COOK:
Yes, Your Honor.
16 THE WITNESS:
(Saxner)
I believe that there 17 was -- I seem to recall one issue arising around explosion 18 of nuclear -- not nuclear -- of liquid gas tanks.
19 Other than that, I cannot recall any of the 20 circumstances surrounding the question that was before me.
21 For what it's worth, I don't believe that that would have 22 changed the department's decision on this.
23 BY MR. COOK:
24 Q
What was the nature of the ligaid gas tank 25 explosion?
g Heritage Reporting Corporation (202) 628-4888 l
l
ST. HILAIRE, SAXNER - CROSS 23255 r.
1 A
(Saxner)
There was no explosion.
This was in 'he c
2 context of discussing what a response might be.
3-0 So there was no' actual explosion during which 4
the --
l 5
A (Saxner)
No, no.
6 Q-So you have no actual. experience: involving-7 provision of advice to the Department of Public Health on 8
the certification of vehicles during major disasters?
9 MS. GREER:
Objection as to form.
10 From the regulation, the regulation that is 11 essentially the subject of this line of questioning does not 12 require certification in the event of a catastrophe, which 13 is the premise of this question.
{ ~
14 The regulation only says that if there is an 15 uncertified vehicle, that is, it may be used in the event of 16 a catastrophe if there are no other emergency vehicles 17 available.
It doesn't lave anything to do with 18 certification in the event of a catastrophe.
19 THE WITNESS:
(Saxner)
I'll add that.
20 I guess I don't understand the question, in part, 21 because of that.
It isn't the department's intention to set 22 up a certification process in the midst of some holocaust 23 and sort out who is going to do what.
That's the reason why 24 the provision is in the regulations to permit people to be 25 able to at that point in time to go do what seems to be Beritage Reporting Corporation (202) 628-4888
t 8 G
e ST. HILAIRE, SAXNER - CROSS 23256 1
appropriate at the time.
2 And I think the only distinction we have drawn is 3-between that and where people are planning and where it is 4
foreseeable in the. context of the planning that something 1
5 may arise.
6 In that case, we have looked towards certification 7
of these vehicles.
8-BY MR. COOK:
9 Q
Would you agree, though, that it might very well
-10_
be better, in terms of the provision of greater safety, to 11 set up such vehicles, if they are the only vehicles 12 available as that regulation indicates, in advance, rather 13 than out of a concern for anticipatory lack.of compliance 14 with the regulation, insist that you will only tolerate the
'{
15 use of such vehicles on the spot at the time of the 16 emergency?
17 A
(Saxner)
I think you are phrasing it as an 18 "either/or".
I'm not sure.
You are the ones who have been 19 steeped in this for months or years.
20 I cannot say that it is an either/or proposition.
21 And so I don't want to in any way represent the department 22 as taking a position on a matter like that.
I would assume 23 that there may be alternatives.
24 25 Heritage Reporting Corporation (202) 628-4888 i
1
ST. HILAIRE, SAXNER - CROSS 23257 1
MR. COOK:
I have nothing further except the 2
renewed motion to strike, Your Honor.
3
' JUDGE SMITH:
Do you have anything, Mr. Bachmann?
4' MR. BACHMANN:
Yes, I just have one, I hope, one 5
question, if I don't think it' compounds Mr. Saxner.
6 CROSS-EXAMINATION 7
BY MR. BACHMANN:
8 Q
In your experience with the department, in your 9
close to, as close to personal experience as possible, has 10 there been an instance where there has been preplanning for 11 a major catastrophe where possible use of non-ambulance 12 certified vehicles was involved, and your department has 13 gone out and gotten an injunction against their use prior to 14 the use?
{
15 A
(Saxner)
A non-ambulance, whatever -- do you 16 mean -- I'm not sure I understand what you mean by "non-17 ambulance".
18 Q
All right.
We're talking about a vehicle that is 19 not certified as an ambulance, but there has been an 20 indication it would be used to transfer the sick and injured 21 in the event of a major catastrophe -- this has been 22 preplanned.
It's not going to be used for anything else.
23 In your experience, has your department gone out 24 while you have been there, that you have had personal l
25 experience with, and sought an injunction against that use?
l f
Heritage Reporting Corporation f
(202) 628-4888
ST. HILAIRE, SAXNER - CROSS 23258 1
A (Saxner)
We have had voluntary compliance where 2
an issue like this has arisen where we felt that there 3'
should be licensure.
We have had voluntary compliance from, 4
- again, 5
Q But you've never saw it.
6 A
(Saxner)
-- civil defense or whatever entity ti.-:
7 was proposing to do this.
They have gone and obtained an 8
ambulance license or they have ceased that initiative.
9 JUDGE SMITH:
Let me follow through on that.
I 10 MR. BACHMANN:
No, the question was, have you 11 actually gone out and got an injunction against them to 12 prevent them from using those vehicles?
13 THE WITNESS:
(Saxner)
We haven't had to.
[
14 MR. BACHMANN:
Thank you.
That's all I have.
15 JUDGE SMITH:
There has always been voluntary 16 '
compliance.
17 Let's go back to the chief's station wagon.
How 18 did you work that out with him?
19 Does he have two EMTs riding around in a station 20 wagon with him?
Does he have oxygen in his station wagon?
21 THE WITNESS:
(Saxner)
I was not -- well, they 22 may have oxygen.
l l
23 JUDGE SMITH:
How about the EMTs?
l-24 THE WITNESS:
(Saxner)
I don't know.
I was not 25 involved in negotiating out the settlement on that.
f Heritage Reporting Corporation (202) 628-4888 l
l a
23259
.g' 1
I would think that if they intended to use it in L
2-that type of situation, that there would be an arrangement 3~
made to provide two EMTs at the time.
But I cannot -- in 4
that respect, I am only speculating, because I don't know 5
what the' final resolution was.
I only know that we wanted 6
them to obtain.a license.
~
7 JUDGE SMITH:
Anything further?
8.
MR. COOK:
No, Your Honor.
9 JUDGE SMITH:
The motions stands,.or are you 10 renewing it, or what?
11 MR. COOK:
Yes, the motion stands.
12 (The Board confers.)
13 JUDGE SMITH:
With respect to Mr. Saxner, the 14 motion is denied.
The examination of Mr. Saxner has given 15 t?.e Board the perspective as to how the regulations and the 16 certification process actually works.
And the written 17 testimony will be looked at only with respect to his 18 testimony of the actual implementation of the regulations 19 that he works under.
20 All right, anything further for this panel?
21 MS. GREER:
I think the only remaining little item 22 is some determination as to what happens to Exhibit 84.
I 23 hesitate to move on and leave it hanging in the wind.
24 JUDGE SMITH:
Well, we are going to be hearing 25 more from 84, won't we?
Or will we?
I don'c know.
Beritage Reporting Corporation (202) 628-4888
_____ _ __ _______ _ ___ _ __ _ _u
23260 1
.ou don't know.
- (. -
2 MR. COOK:
No, Your Honor.
We do not --
3 JUDGE SMITH:
What does 84 tell us anyway?
4 MR. COOK:
Exhibit 84 is not crucial, and it was 5
used simply to confirm the statements made under cross-6 examination and in their testimony by both witnesses that.
7 the buses will remain dedicated for NHY for emergency 8
response purposes only.
It was simply to reaffirm that use 9
and operation as expressed in the language are going to be 10 one time occurrence.
11 JUDGE SMITH:
Well, it's got to remain.
If 12 Saxner's testimony remains, that remains.
13 Have we received that?
14 MR. COOK:
Yes, you did, Your Honor.
(
15 JUDGE SMITH:
Yes, we did.
16 MS. GREER:
You did receive it.
However, I think 17 it's relevant for the purposes of clarification that Mr.
18 Saxner, in his testimony, in fact looked at a different 19 document.
His document in fact is a document involving fivu 20 pages as opposed to the three pages that were submitted on l
21 84.
His document included the pages listing the bus 22 companies who were solicited to submit bids.
f 23 MR. TROUT:
The only problem with that is that the 24 witness identified Exhibit 84 as being the document he 25 looked at.
Heritage Reporting Corporation (202) 628-4888
V LL 23261 1
MS. GREER:
He looked'at-the front two pages.
But p;g i :'i i
2 in. fact the basis for his testimony was the entire document 3
.that he looked at.
4 MR. COOK:
We have:no objection if the Attorney
'5 General wishes to supplement that provided we could see i
6 those two pages.
7 MS. GREER:
Sure.
I will do that.'
I will make 8
copies of that so that will includes the bus list and
.9 provide it to you.
10 JUDGE SMITH:
So you are going to substitute.the 11 two if it's ---
12 (Pause. )
l'3 JUDGE SMITH:
How are you going to get the two
/
14 EMTs for the chief's station if -- it just doesn't all fit
.k 15 together.
16 MS. GREER:
If it's acceptable to the Applicants, 17 I will arrange to have copies made of this document,.
18 including the last two pages, and that substituted in for 19 85.
]
20 JUDGE SMITH:
All right.
i k
21 MR. COOK:- That's acceptable.
22 JUDGE SMITH:
All right.
We will defer ruling 23 then until it's actually offered for substitution.
24~
MS. GREER:
Fine.
25 JUDGE SMITH:
All right, anything further of the Beritage Reporting Corporation (202) 628-4888
L 23262-l'...
1 Panel?-
2 MR. COOK:
No, Your Honor.
i 3
(The Board confers.)
4 JUDGE SMITH:
All right, gentlemen, you are 5
excused.
Thank you for coming.
6 (The Panel was thereupon excused.)
7 JUDGE SMITH:
What's next?
8 MS. GREER:
I believe that the next order of 9
business would be the motion in limine with respect to the 10 testimony of Chuck Jones.
That was scheduled to be argued 11 on Friday and in fact did not take place at that time.
Mr.
12 Fierce will be doing that.
13 JUDGE SMITH:
All right.
We are familiar with it, 14 and I guess you are going to represent the Attorney General?
{.'
15 Oh, Mr. Fierce is going to.
16 MR. FIERCE:
Yes, I'll be doing it.
17 JUDGE SMITH:
Mr. Fierce, we are ready to hear 18 from you.
19 MR. FIERCE:
It's the Applicants' motion.
Do they 20 want to go first?
~
21 JUDGE SMITH:
Well, normally the practice we 22 followed is that the motion sets out the bases for it.
23 MR. FIERCE:
Okay.
24 JUDGE SMITH:
And you agree with them or disagree 25 with them.
So it's up to you now.
V Heritage Reporting Corporation (202) 628-4888 i
23263 1
MR. FIERCE:
All right, fine.
~
2 Well, I'm here opposing the motion.
I am at a 3
little bit of a disability here because I just got it this 4
morning, and I was this afternoon, before I got called in, 5
in the process of doing some review and research of the 6
discovery primarily to ascertain whether the basis for the 7
motion was founded or not.
8 Having not done that entirely, however, let me say 9
this.
10 JUDGE SMITH:
Then you have a problem because, in 11 particular, the Office of the Attorney General was cautioned 12 that they have to come into the hearing room prepared on 13 these motions, and they have to be able to support where in 14 their bases, where in their contention, or where in
.{.
15 discovery did they reveal the fact that there is an issue.
16 MR. FIERCE:
Oh, I'd be happy to do that if I had 17 more than four or five hours to prepare.
We just received 18 the motion today in our office.
19 JUDGE SMITH:
Then you are not ready then, I 20 guess.
21 MR. TROUT:
Excuse me, Your Honor.
22 I distributed this motion in the courtroom 23 Thursday afternoon so that we could argue it Friday morning.
24 It was not received by Mass AG this morning for the first 25 time.
(
g Heritage Reporting Corporation (202) 628-4888
i i
{
23264 1
JUDGE SMITH:
See, I think you were absent --
j.
s 2.
MR. FIERCE:
I was absent.
'3 JUDGE SMITH:
-- during some frustrating period 4
where there was some frantic shopping around through the 5
contentions and bases trying to find, and we don't want to 6
do that in the hearing room.
You can do your frantic 7
shopping back at the ---
8 MR. FIERCE:
Your Honor, all I'm saying to you, 9
I'm confessing the fact that I personally haven't had. time 10 to do what I need to do.
I'm not attempting to absolve 11 responsibility from the Mass AG.
12 JUDGE SMITH:
Okay.
13 MR. FIERCE:
Yet, I am prepared to go ahead.
{..-
14 JUDGE SMITH:
All right.
15 MR. FIERCE:
The motion, first of all, alleges 16
- that the paragraph in dispute here raises matters that are 17 not, first of all, raised in Contentions 27, 61 or 62, nor 18 was any mention made of that kind of response in answers to 19 interrogatories.
20 What we're talking about here is a paragraph in
~
21 Mr. Jones' testimony which is a response to a kind of a 22 question that the Applicants have often put to our Panels on 2 3 cross-examination which is, well, how would you fix it, or 24 what would you do to make it better kind of question.
25 And that was put to Mr. Jones in the direct Heritage Reporting Corporation (202) 628-4t!,4
r '
t.
23265 I
testimony, because he wr.s concerned about the liaisons and-i, l
2 the role that the lirisons were playing in terms of 3
integrating a coordinated response between the New Hampshire 4
Yankee offsite response organization and the state and local o
5 governments.
6 We have contentions, 27 (a), which assert that the 7
liaisons do not adequately provide for effective 8
coordination, and that their role is completely undefined.
9 And we believe that that contention legitimately raises the 10 issue or the question, well, how should that role be defined 11 to adequately provide effective coordination.
And that's 12 part of what Mr. Jones is addressing here.
13 And then also in Contention 62, which is a 14 contention concerning Mode 2, either in mixed --
j 15 JUDGE SMITH:
Well, let me catch up with 27 (a).
16 Is there any particular language in 27 (a) that you 17 would point to that would support this statement?
18 MR. FIERCE:
Sure.
19 The second sentence in the contention statement 20 itself says, "Further, the SPMC does not adequately provide 21 for effective coordination of effort."
i 22 JUDGE SMITH:
Then we go down to the bases for it.
J 23 MR. FIERCE:
Basis A talks about the liaison role.
24 JUDGE SMITH:
Right.
25 MR. FIERCE:
And the role there, it's described as
(^
1 Beritage Reporting Corpora. tion (202) 628-4888 i
I L
23266.
'l-completely undefined.
2 Now, we' re talking about --
3 JUDGE SMITH:
Undefined role.
4 MR. FIERCE:
It's an undefined role and that's a 5
basis to a contention which says that they haven't a
6
' adequately provided effective coordination.
7 JUDGE SMITH:
Okay.-
8 MR. FIERCE:
Now, it seems to me that raises the 9
issue, how could the liaison role be defined, be structured 10 in order to provide for effective coordination.
11 And if you go back before the paragraph that's at i
12 issue in Mr. Jones' testimony and look at the question he 13 was asked, the question is:
"What do.you believe are the.
14 major problems w.4th the liaison function as described in the
{T 15 SPMC?"
36 And he goes through five or so responses to that t
17 question.
In the second one, he is in fact essentially 18
-offering just what I have suggested:
a suggestion as to how 19 the role could be defined better by specifically structuring 20 it into essentially two functions.
There is a function that 21 has to do with providing information about levels of 22 radiation, the ECLs, plant conditions.
Obviously state and 23 local governments are going to have myriads of questions 24 about those kinds of things.
25 And as well, this liaison needs to be expert on Heritage Reporting Corporation (202) 628-4888 l
23267 1
-the SPMC and all of the services that can be provided..And 2
so he describes essentially a structure for.how that role 3
ought to be better defined.
4-And~1et me go on',.because in Contention 62, which L'
5 again talks.about.the coordinate response between the New 6
Hampshire. Yankee organization and the state and local 7
government, the specific point'is made,that that --
8 JUDGE SMITH:
Let me catch up.
4,
9 10 11 12 13
-(
'14 15 16 17 o.
18 19 20
~
21
- 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
23268 1
JUDGE SMITH:
Would you point to the exact 2
language?
3 MR. FIERCE:
I would take a look at the first 4
sentence of the second paragraph of the contention statement 5
which reads:
"The SPMC does not provide a mechanism by
=
6 which the state and local governments can swiftly and 7
efficiently interact with ORO officials to mount a timely 8
and adequate response to an accident."
9 And it goes on to say:
"This results from a 10 cumbersome communication and coordination problem created by 11 parallel existence."
12 We've got a problem.
The main feature offered by 13 the SPMC to-effectuate coordination is the liaisons.
And 14 the concerns raised by these contentions are that this is a 15 cumbersome process, and that the role is not adequately 16 defined.
17 and the upshot being that there will be not be 18 effective interaction between the utility organization and 19 the governments.
20 What we have here is testimony from Mr. Jones l
21 flushing that out.
Suggesting, in fact, how the role could 22 be structured.
And also, suggesting that one of the ways to 23 cut down on the cumbersomeness of it all is to double the 24 number of personnel that play that role.
l 25 You can imagine at the central headquarters of the i
l t
Heritage Reporting Corporation (202) 628-4888 a
23269 1
Massachusetts Civil Defense Agency there could be numerous
$.(
2 people who would want to speak to a liaison.
One set of 3
functionaries there may be questioning the liaison about the 4
plant.and the status and the ECLs and what is going on 5
there, while simultaneously other people at MCDA would like 6
to know now, not five minutes from now when he finishes 7
another conversation, how the ORO could respond to the 8
traffic situation, whether reception centers would bo 9
available.
10 And in order to cut down on that cumbersomeness a 11 suggestion is made of the doubling of the number of liaisons 12 that could be there.
13 So I submit that it is clearly within the scope of 14 these contentions as evidence of how things that we are 15 criticizing -- we believe the cumbersomeness is there.
The 16 interaction is not going to be facilitated in a timely, 17 efficient manner.
And we are making suggestions on how 18 improvements could be made.
19 JUDGE SMITH:
Well, the difficulty is, when you 20 make suggestions on how to make improvements you're going to 21 later on cite them as inadequacies in the plan, failures in 22 the plan.
23 MR. FIERCE:
Not necessarily, Your Honor, because 24 our role where we are in this case is to point out the 25 defects.
We've been in a situation before where the f
Heritage Reporting Corporation a
(202) 628-4888
23270 1
question has been asked of our experts on the stand, well, 2
what would you do?
And I know in many cases the experts 3
have said, my analysis didn't go that far, I was asked to 4
analyze what the defects are and here they are, what is on 5
the table in these plans is inadequate.
6 It's the Applicants job to come forth in whatever 7
way they want to suggest how the inadequacy could be 8
resolved.
9 Here, this particular witness does te.ke that extra 10 step.
I don't think it was necessary, but he did it.
We 11 asked the question, the expert,rve an answer.
The question 12 is clearly a legitimate one.
No one is objecting to the 13 asking of this very question.
This is that expert's opinion
/
14 on one of the ways that that particular function can be i
15 improved.
16 -
(The Board confers.)
17 JUDGE SMITH:
Mr. Trout?
18 MR. TROUT:
Yes, Your Honor.
19 Mr. Fierce has characterized the question that Mr.
20 Jones was asked as being one of, how would you improve the 21 plan?
22 If you look at the bottom of page 15 of the Jones 23 testimony, question 17, the actual question is: "What do you 24 believe are the major problems with the liaison function as 25 described in the SPMC7" In other words, what are the flaws Heritage Reporting Corporation (202) 628-4888
23271 in the existing plan.
That's the question that was actually 1
s 2
asked.
3-And.then in response, still at the bottom of page 4
4 15,.Mr. Jones answers:
"There are several fundamental 5
-issues here."
And then he has a series of bullet items, one 6
of which is his discussion of the allegation that we don't 7
have enough liaison personnel and that the functions of 8
liaison personnel should be divided between technical 9
functions and communication or planned functions.
10 JUDGE SMITH:
Where did he say that?
11 MR. TROUT:
That's the paragraph that we are 12 moving to strike.
13 JUDGE SMITH:
Oh, I thought you were saying that f-14 was a discovery response.
No.
'\\.
15 MR. TROUT:
No.
No, Your Honor.
16 And that is, in fact, the point of the motion.
17 That here, Mass AG in their testimony is alleging a major 18 problem, a fundamental issue, something wrong with the SPMC 19 as it existence now.
And it's the first time we hear of it 20 in the testimony.
~
21 It's not, I respectfully submit, revealed by the 22 plain language of the contentions or the bases.
And as Your 23 Honor is familiar, we went through the drill on these 24 contentions as we did with the other ones of asking question 25 after question.
At the end of each contention we asked the f
Heritage Reporting Corporation (202) 628-4888
23272 1
cleanup question, is there anything else?
Any other facts?
j i
2 And there has never been a hint up until the day this 3
testimony was filed that Mass AG was alleging that we need 4
to at least double the number of liaisons and that we needed 5
to bifurcate the liaison function.
6 MR. FIERCE:
Your Honor, if I could respond to 7
that last point.
8 This is what I was doing before I came over here 9
today.
In the motion Mr. Trout suggests that -- he says, 10 finally, either of these new allegations is contained in any 11 of the answers provided by the Mass AG or NECNP to 12 Applicants' 27, different interrogatories going to those 13 three contentions.
(
14 My question as a lawyer preparing for this motion do any of those 27 motions which went to either of 15 was:
16 those parties -- 27 interrogatories which went to NECNP and 17 to us -- actually ask this question.
And I was in the 18 process of going back through.
19 Mr. Trout would like to have us all believe that 20 he was completely covering with numerous layers of shellac
~
21 every possible, conceivable fact that might arise.
And I 22 don't think that's true, Your Honor, in terms of the 23 interrogatories he asked.
24 It would have been very easy for him to cite to 25 the specific interrogatory which asks for this particular f
Heritage Reporting Corporation (202) 628-4888
23273 1
piece of information, and then I would have known.
- s 2
But the ones that I looked at this afternoon, none 3
of them were getting at this particular piece of 4
information.
5 If he has it, fine.
I'm admitting I haven't 6
looked at them all, there were just took many, 27 different 7
questions.
8 JUDGE SMITH:
Well, if you're calling upon him to 9
ask, do you maintain there should be at least two rather 10 than one, out of the air he is not going to do that.
11 MR. FIERCE:
No.
12 JUDGE SMITH:
But he's going to come up with --
13 MR. FIERCE:
But a relevant question.
A relevant
'{
14 question.
15 And I also want to add, Your Honor --
16 JUDGE SMITH:
What is your relevant question?
17 MR. FIERCE:
I also want uo add that, the 18 interrogatories that we responded to Mr. Trout were, what we 19 call their second set that had to do with contentions 27 20 through 63, and while I don't see any specific reference to 21 the liaison function, we did again point out the defects in 22 the cumbersomeness, the inadequacy of the liaison role.
23 And the follow-up question that I see here that go 24 to both interrogatory No. 17 going to contention 17 or 27 25 and the interrogatories which also went to contentions 62
(
e, Heritage Reporting Corporation (202) 628-4888
23274 1
and 63 have a follow-up response that reads:
"The Mass
~-
l 2
Attorney General has no other facts at this time, but 3
further expert review of the SPMC is underway."
i 4
That is absolutely true.
Mr. Jones was one of the l
5 later --
6 JUDGE SMITH:
Every time we resolve something, 7
here comes a brand new Attorney General in and argues the 8
same things over again.
9 MR. FIERCE:
All I can tell you is --
10 JUDGE SMITH:
But the same ideas.
Well, we didn't 11 know when we responded to interrogatories.
12 MR. FIERCE:
It was a truthful answer.
. :L 3 JUDGE SMITH:
We've already faced that argument 14 many times and we have ruled on it many times.
15 MR. FIERCE:
All I'm saying is --
16 JUDGE SMITH:
I wish you would debrief each other 17 when you go back to the office and communicate these 18 rulings.
19 We have been very liberal allowing the Attorney 20 General and the Applicants to come in here in teams, because 21 we realize that one person can't handle the lawsuit.
But we 22 expect there to be some privity, some continuity.
We don't 23 want to have to face each issue as if it had never been 24 faced before because a different person is raising it.
25 MR. FIERCE:
I understand that, Your Honor.
Heritage Reporting Corporation (202) 628-4888
l 23275 1
All I' m saying, remember, is that I'm not sure 2
there is a question in here, "a" relevant question --
3 JUDGE SMITH:
Okay.
4 What's the question?
5 MR. FIERCE:
-- which goes to this.
6 JUDGE SMITH:
All right, let's find out.
7 MR. TROUT:
Your Honor.
8 JUDGE SMITH:
It's his responsibility to come up 9
with a question.
10 MR. TROUT:
Your Honor, if the question is: did 11 Applicants ever ask Mass AG, quote, "Do you believe that the 12 number of liaisons needs to be doubled?"
13 The answer is, of course, we didn't ask that
/"
14 question because we had no idea that that concern was in
(,
15 their mind, if it was.
16 JUDGE SMITH:
What did you ask?
17 MR. TROUT:
We asked at least two questions that 18 would cover the waterfront.
Question No. 18 in the second' 19 set: "Please state all facts other than those discussed in 20 response to the preceding interrogatories, underlying
~
21 Interveners' assertion that," quote, "SPMC does not 22 adequately provide for effective coordination of effort 23 between or clearly delineate the primary responsibility of
-24 these other organizations and ORO and define adequately 25 effective clearly and primary."
That's question 18.
I Heritage Reporting Corporation 3
(202) 628-4888
1 23276 1
That's the final question; the cleanup question going to JI-2 27.
3 Then question 288 which is the final question and 4
the cleanup question on JI Contention 62:
"Please state all' l~
5 the facts other than those discussed in response to the 6
preceding interrogatories, underlying Interveners' assertion 7
that the SPMC does not compensate adequately for the' lack of 8
preparedness of state and local officials to respond.to-a 9
radiological emergency at Seabrook and define adequately."
10 11
.12 -
13 j
14 x
15 16
- 17 18 19 20 21 22 23 24 25.
Heritage Reporting Corporation (202) 628-4888
l 23277 i
1 1
JUDGE SMITH:
Do you want t.o add something?
j 2
MR. FIERCE:
Yes, Your Honor.
3 In respor.se to Mr. Trout's reference to 4
Interrogatory 18, I see the answer that was given here.
It 5
was, "See responses to preceding interrogatories."
6 I also look at the question as a question which l
1 7
essentially says all the facts underlying our asscrtion that 8
there's a problem.
And when I look back, particularly at 9
the response to the preceding Interrogatory No. 17, I see 10 again a description of what we think the problem is.
And it 11 goec on for over a page, a page and a half, stating in fact 12' that the liaison role is nominally created superficially to 13 meet the regulatory requirements.
14 Now, if that'e not a suggestion that it's just a 15 weak effort to come forth with this liaison function, I'm 16 not sure what is.
17 The other page follows with this statement, 18 "Information flows would be extremely complex, requiring the 19 various liaisons to be completely versed not only in all the 20 details of the SPMC, but also versed in the capabilities of
-o 21 the governments."
c 22 Again, suggesting much information needs to be 23 transmitted between the two organizations.
I I
24 JUDGE SMITH:
Okay, that's the same point you have 25 been ma'. ting.
I think we understand the point.
Heritage Reporting Corporation (202) 620-4888
)
.i i
23278 1
MR. FIERCE:
The point, just to wrap it up, is if g_;
2 the quest.isn had been "How would the problem that you've 3
just articulated be resolved", that kind of a question might 4
have gotten from us a response about you need more liaisons.
5 JUDGE SMITH:
Well, if you knew that you were 6
going to come forward with testimony, that you should have 7
two rather than one.
8 MR. FIERCE:
I didn't know how many.
9 JUDGE SMITH:
Right.
You didn't.
All right.
10 MR. FIERCE:
I knew that they had --
11 JUDGE SMITH:
So how do you improve the plan would 12 not have evoked the response any.
13 MR. FIERCE:
I would have --
14
. JUDGE SMITH:
But here is the inherent generic
{
15 problem with arguments of the nature that you are making.
16 And that is, if it is unimportant and it did not rise to the 17 level of being either a contention or a basis or an 18 interrogatory response, then it is of no moment.
19 If it is so important that it is an important part 20 of your testimony and an important attack upon the plan, 21 then almost by definition it should have been alleged in the 22 contention, in the bases, or it should have been included in I
23 the interrogatory response.
24 Now we look at the testimony that's involved here 25 in the light of what you say it is, and it is in response to l
{
(
Heritage Reporting Corporation (202) 628-4886 l
i
23279 1
a question, "what is a major problem", and it lists those
,.4 2
major' problems.
So it is, by your own definition, a major 3
problem.
4 But not only is it a major problem, it is a very, 5
very controlling problem.
Because with the addition of two 6
liaison, then you come to the point where an ad hoc 7
integrative function apparently might be able to be 8
accomplished.
9 MR. FIERCE:
Might be.
10 JUDGE SMITH:
Might be.
11 And the implication is without it, it can't be.
12 So it's pretty important.
13 MR. FIERCE:
We allege --
14 JUDGE SMITH:
I mean you have alleged an important 15 fundamental, both in kind, that is, having two with a split 16 function, and in amount, a doubling amount than was in the 17 plan.
You identify it as being a major problem.
And not 18 only that, but it is a watershed problem.
So it could 19 hardly be more important as you have offered it as I read 20 it.
21 So that being the case, then you had all the more 22 obligation to plead it or reveal it on interrogatories.
23 On the other hand, if we have misunderstood or if 24 you have miswritten, or if the witness has, misstated 25 himself and he's saying, well, you know, one, two, fine.
l
'I Heritage Reporting Corporation (202) 628-4888
i J
V
\\
23280 H
1 Ideally, however, if I were the boss, I'd like to have two
(-
2 of them and this is our recommendation as you suggested, 3'
that's another matter.
4 If you are entoring into a negotiation mode now 5
with the Applicants on this issue, well, then let's say so, 6
and then address it that way.
I don't know.
7 But if you are alleging, as you state, there is a 8
major problem with the SPMC on that account, then for the 9
reasons argued by Mr. Trout, the testimony should not-be 10
. accepted because of failure of notification.
11 If, on the other hand, you are entering into a 12 negotiation idea of information that you gained from Mr.
13 Jones after the fact that you are seeking an improvement to 14 the plan on that basis, then you, as always, have the 15' Board's blessing to pursue that, but not on the witness 16 stand.
17 MR. FIERCE:
Well, I have always said we are not 18 ruling out of hand negotiations on contentions if the 19 Applicants want to do it.
20 JUDGE SMITH:
Well, can you -- I don't know.
I 21 don't know how practical this is or anything.
22 But can you talk to them about it and say, hey, 23 this is something that we really think is important and 24 something we would like to have whether you believe it's 25 important or not and see what their response is?
Heritage Reporting Corporation (202) 628-4888
l 23281 1-But as far as the testimony there on the witness 1
't 2
stand, you have called it a major problem.
You said it's a 3
watershed.
With it, it could do the job, Without it, it 4-can't do the job, so it's very important and should have i
5 been revealed.
6 So for that reason, we will grant the motion.
7 And the motion is hereby granted.
8 But if you are seeking an improvement of that 9
nature from the Applicants and you want to do l't, of course, 10 you have the Board's blessing and perhaps even the Board's 11 prodding.
I don't know.
I don't know how feasible this 12 is, but it sounds nice, sounds like a good idea.
But that's 13 not the issue before us.
The issue is was it properly-j}
14 raised as an issue before us today.
t 15' MR. FIERCE:
Your Honor, just to clarify the 16 ruling, I think I understand it.
That that portion of the 17 testimony will be stricken, and I want to go over that with 18 you because I think we need some clarification on the exact 19 language.
20 JUDGE SMITH:
But the whole --
~
21 MR. FIERCE:
But the issue --
22 JUDGE SMITH:
The whole paragraph is out.
23 MR. FIERCE:
The issue of the cumbersomeness and 24 the inadequacy of the liaison function is still there and 25 has been pled.
Testimony still stands on it.
All your f
Heritage Reporting Corporation (202) 628-4888
-__-______-__a
23282 1
concern is the double function.
-(7 r-i-.
2 JUDGE SMITH:
The only matter before us, as-I read
~
3 the motion, was -- I don't know, I read it as being limited 4
to that --
5 MR. TROUT:
That one paragraph.
Yes, Your Honor.
6 JUDGE SMITH:
That one paragraph.
That's the only 7
thing that is going.
8 JUDGE COLE:
The first full paragraph on page.17.
9 MR. TROUT:
Yes, Your Honor.
'10 MR. FIERCE:
Well, I think that's overinclusive, 11 and I would propose a rewrite, and I do have some language 12 here.
I've done at least that much homework coming in today 13 which I would like --
14 JUDGE SMITH:
Well, this is a problem.
We make a
{
15 ruling and then back comes more.
I know we run a pretty 16
- relaxed hearing sometines, but that seems to be always the 17 case.
18 MR. FIERCE:
Your Honor, it would always --
19 JUDGE SMITH:
We can't make a ruling and put it to 20 the end.
And then we have got to have clarification, 21 revision, whatever.
You never ever come into an argument l
22 like this, and I use the word "never," rarely saying, "The 23 motion is well taken, Your Honor, we would like to save it."
p 24 But, no, you fight, fight, fight.
You get a 25 ruling.
You don't accept it.
Then you try to save
(
Beritage Reporting Corporation (202) 628-4888
1 23283 l
)
L 1
i something.
1
~
2 Now what is it that you want'this time?
3 MR. FIERCE:
Your Honor, if you --
4 JUDGE SMITH:
You don't do that.
You don't do 5
that before judicial officers.
Yes, you do do it,.and 6
that's the problem, and we let you get away with it.
~
7 But you have lost.
You lost flat out.on that 8
motion.
9 MR. FIERCE:
Your Honor, I just --
10 JUDGE SMITH:
We read the paragraph.
It is out.
11 Now what are you going to offer?
12 MR. FIERCE:
I understand that fully.
13 JUDGE SMITH:
A new contention?
14 MR. FIERCE:
If I were at a trial and an objection 15 were made, an objection to a question or an answer from my 16 witness were sustained, I would make a very rapid effort to 17 ask another question to try to elicit information that was 18 as broad in scope as it could possibly be'without violating 19 that ruling any further.
20 Now I just want to make sure that I have an 21 opportunity to try to take the information that is in that 22 paragraph that still is, I think, valid --
23 JUDGE SMITH:
But you had an opportunity to rule 24 that the motion was overly broad at the time.
And you take 25 these wratcheting rulings.
We make one.
So you will back f
Heritage Reporting Corporation (202) 628-4888
23284 1
.up'and back';up and back up.
If you believed that that
(.,
2 motion was overly broad, then you should have argued it at 3
the beginning.
-4
-5
-6 7.
8
'9 10 11 12 13'
' L 14 15 iti 17 18 19.
20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 L
a i
23285
=1L JUDGE SMITH:
Now, do you want a clarification?
..I t
2-MR. FIERCE:
I would like to ask my witness a 3
follow-up question.. The objection has been sustained.
I 4
understand it's prefiled testimony, but there is a hole now 5-here and I would like to ask a follow-up question.
Strike 6
that.
If we were at a trial, that's what I would do.
And this is the answer I might get and it would say something 7
8 like this.
9 JUDGE SMITH:
You can proffer it.
10 MR. FIERCE:
I would like to proffer this.
It 11 would read as follows:
"Second, the liaisons must 12 accomplish two types of functions at each location.
- First, 13 they must explain the plant conditions; how the accident 14 occurred in layman's terms; and provide easily understood 15 examples of how given levels of radiation for given 16 durations of time could affect given members of the general 17 public at given distances from the plant, et cetera.
18 "Second, they should be expert in the plans and 19 procedures," as it follows through in the rest of that
?O sentence.
b 21 JUDGE SMITH:
You would have been amending your 22 direct testimony?
23 MR. FIERCE:
I'm only amending it in response to a 24 portion which has been stricken on an objection.
If they 25 were at a real hearing and there was an objection, what
(
Heritage Reporting Corporation (202) 628-4888 C _ ______ ____ _ _____ __
_____ _ ___________ _ _ ____ ____ __ _______j
23286 1
would a lawyer do.
2 JUDGE SMITH:
Well, let me tell you, sir, this is 3
a real hearing.
4 MR. FIERCE:
And I'm trying to get out the 5
information that is in this paragraph that does not seem to 6
be --
7 JUDGE SMITH:
You present your direct testimony in 8
this real hearing, entirely in written form.
You do not 9
present it as you go along based upon the objections that 10 are sustained.
This is in real form.
The objection was 11 made in its entirety.
12 MR. FIERCE:
And we have no opportunity for 13 follow-up to try to get out the information that is here 14 that would still fit within the Board's ruling.
15 JUDGE SMITH:
None of that fits within the ruling.
16 MR. FIERCE:
Well, as I understand it, the ruling 17 only really goes to the bifurcation of the function.
18 JUDGE SMITH:
And the doubling.
19 MR. FIERCE:
The doubling is not new.
We've 20 always -- I just read you sections of the interrogatories 21 that talk about providing information, about plant 22 conditions, ECLs have to be performed.
That information was 23 here, Your Honor.
That's not new nt all.
24 JUDGE SMITH:
Is it the bifurcate we have 25 misunderstood all along?
t Heritage Reporting Corporation
~
(202) 628-4888
23287 1
MR. FIERCE:
It's the doubling.
t
~
2 The only thing that.I see is new here is that it's 3
going to take two people.
We have said that all of these 4
functions they have to perform.
5 JUDGE SMITH:
That's right, it's going to take two 6
people.
7 MR. FIERCE:
Would take two people.
8 JUDGE SMITH:
Right.
9 MR. FIERCE:
But all of the functions still need 10 to be performed and he has just kind of put them into two 11 categories here.
I don't think there is anything wrong with 12 that.
The liaisons need to perform both of those categories 33 of functions.
14 I'm just trying to rewrite the sentence to take
(
15 out the doubling.
16 (The Board confers.)
17 JUDGE SMITH:
We understand Mr. Fierce is now 18 saying that by unfortunate planning they are losing some 19 testimony that should be out, that the cumulative expertise 20 of liaison personnel, be it one or any. should include the 21 points made in paragraph two.
22 But unfortunately, the language he uses still goes 23 along the double liaison.
But now he is saying that one of 24 the things they wanted to establish there is that, even if 25 there is only one liaison personnel, that person should have f
Heritage Reporting Corporation (202) 628-4888
23288 j
1 the expertise alluded to in that paragraph.
)
k 2
Is that what you're saying?
)
1 3
MR. FIERCE:
Correct.
)
4 JUDGE SMITH:
Although the example you gave going j
i 5
right back into the double mode -- did you want to respond j
t 6
to that?
j 7
MR. TROUT:
Your Honor, I'm a little bit at a loss 8
because I'm trying to find the interrogatory responses where 9
the Attorney General talP.ad about the liaisons needing to be j
10 expert in plant conditions, explaining an ccident in layman 11 terms, being able to provide examples of levels of 12 radiation.
And I haven't found them.
I must confess that I 13 didn't look through the interrogatories in preparing the 14 motion, I didn't look with an eye to redrafting the
(
15 testimony.
16 So it could be there and I just haven't seen it.
17 JUDGE SMITH:
And you should not be faulted for 18 that because I read it as being a doubling with 19 specialization and specialization which can only be 20 accomplished by doubling.
That's the way I read it, too.
21 And I am surprised now that he is raising it as 22 being a totality of the exportise that a liaison entity, be 23 it one or twe, would have to possess.
24 I agree with you.
25 MR. TROUT:
And Mr. Fierce was alluding to answers l f Heritage Reporting Corporation (202) 628-4888
_ = _.
^
f; l
23289 l
1 before.
If he could point them out to me, then I could 2
intelligently respond to his argument.
3 MR. FIERCE:
Well, let me --
l 4
JUDGE SMITH:
Mr. Fierce, let's stop.there, 5
because I brought it to your attention before; that more 6
often than should be the case you represent to the Board 7
that something was intended to be and it.didn't come out 8
quite right.
And I brought this to your attention before.
9 It's not a question of accepting your word on 10
.these things.
It's a question of, it is not fair to ask 11 opposing counsel to do that.
And you do it many times.
You
\\
12 say, well, okay, but that's not what we really had in mind, 13 we had two ideas in mind.
14 And I think that the witness had a single idea in 15 mind and that is, there should be two liaisons.
16 MR. FIERCE:
Oh, there is no question.
17 JUDGE SMITH:
And they should have the specialty 18 and the expertise that only two liaisons can bring.
19 MR. FIERCE:
That a single liaison would have a 20 great deal of difficulty with all --
21 JUDGE SMITH:
And that's the concept there.
22 MR. FIERCE:
There is so much information.
And 23 all I want to get out is, there's so much informati on s'.f.11 24 needs to be there and provided in the liaison function.
25 (The Board confers.)
g Heritage Reporting Corporation (202) 628-4888
..).
>y1
>l JUDGE SMITH:
We stand on our ruling.-
I
-- r -
r 2
Let's proceed.
3-MR. FIERCE:
The entire paragraph two is out?
4 JUDGE SMITH:
Is out.
5 Anything further this afternoon?
6 (No response) 7 JUDGE SMITH:
We'll adjourn then until tomorrow at 8
9:00.
9 (Whereupa., at'4:47 p.m. the hearing was adjourned 10 to reconvene tomorrow morning at 9:00 a.m., Wednesday, l
11 May 31,.198 9. )
i 12 1
13
-.{.
14 15 16-1 17 18 19 20 4
21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
s May 30. 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
-)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, et al.
)
50-444-OL
)
(Seabrook Station,
)
(Offsite Emergency Units 1 and 2)
)
Planning Issues)
)
APPLICANTS' PLAN FOR THE CROSS-EXAMINATION OF THE TESTIMONY
. {--
OF GERARD ST. HIIAIRE AND HOWARD SAXNER ON BEHALF OF THE-ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS ON THE PROPOSED USE OF EVACUATION BED BUSES IN THE SPMC I.
Backaround.
Applicants will inquire about what positions Mr. Saxner and Mr. St. Hilaire hold, the length of time they have held those positions, whether they have been associated with the Seabrook proceedings before giving testimony, who contacted them about presenting testimony, and when they agreed to testify.
II.
ODeration of Bed Busgg.
The witnesses will be asked about their understanding of what the SPMC says about where bed buses will be garaged and 7BEDBUS.NH
_ = _ _ - - _ _ _ _
registered.
Applicants will also ask whether they know that the Offsite Response Organization will use evacuation bed buses only in the event of an emergency at Seabrook Station.
If the witnesses have a different understanding, Applicants will ask for the basis of that knowledge.
III.
Knowledae of Acolicable Law.
Applicants will inquire of the witnesses whether they have read section 170.010 of Title 105 of the Code of Massachusetts Regulations, and, if they have, whether they read it before submitting their testimony 4 Applicants may inquire further about the factual circumstances in which the witnesses may have considered the regulation.
IV.
A Factual Situation of First Imoression.
Mr. St. Hilaire will be asked whether he has ever advised the Registry on the registration of evacuation bed buses and whether he has had any previous experience with the registration of a bus set aside for emergency medical transportation that is garaged, maintained, and registered outside the state.
If he has had such experience, Applicants will ask what such vehicles were used for and precisely when they were used.
s C.
crateaus.na. _ _ _ _ _
' pt J J
CERTIFICATE 2
r-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 30, 1989
[1 were held as herein appears, and that this is the original t
-transcr.pt 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.
Y
/S/
6 x
(Signature typed) :
Donna L.
Cook 1
Official Reporter Heritage Reporting Corporation HERITAGE REPORTING CORPORATION (202)628-4888 I
1 a