ML20248D852

Memorandum & Order (Ruling on Commonwealth of Ma Atty General Motion to Accept Exhibit).* Denies Motion to Accept Exhibit Re Licensing of out-of-state Ambulances.Certificate of Svc Encl.Served on 890808

ML20248D852
Person / Time
Site:	Seabrook
Issue date:	08/07/1989
From:	Smith I Atomic Safety and Licensing Board Panel
To:	MASSACHUSETTS, COMMONWEALTH OF
References
CON-#389-9009 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8908110148
Download: ML20248D852 (17)

Text

_ _ _ _ _ _ _ _ _ . - __ . _ _

9:.

3'1 if m yg UNI'IED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOg89 AUG -8 P12 :33 l'

ATOMIC SAFETY AND LICENSING BO R : c,. <

OucKiia . e. ' V i Li P. A A br~

Before Administrative Judges:

Ivan W. Smith, Chairman $N Dr. Richard F. Cole ' SERVED #g c&

Dr. Kenneth A. NcCollom In the Matter of Docket Nos. 50-443-OL 50-444-OL PUBLIC SERVICE COMPANY (Offsite' Emergency Planning and-OF NEW HAMPSHIRE, at al. Safety Issues)

(Seabrook Station, Units 1 and 2) ASLBP No. 82-471-02-OL August 7, 1989 MEMORANDUM AND ORDER (Rulino On Massachusetts Attorney General's Motion to Accent an Exhibit)

We have pending before us a Motion of the Massachusetts Attorney General (" Motion")' for the Board to accept an exhibit pertaining to the licensing of out-of-state ambulances under contract with Seabrook Joint Owners to provide emergency services in the event of a radiological emergency at Seabrook Station.

' Motion for the Board To Accept An Exhibit (June 30, 1989).

1 h

O h pjok

I <.

INTRODUCTION On June 29, 1989, the Attorney General offered into evidence certain letters, under date of June 27, written by a Deputy General Counsel of the Massachusetts Department of Public Health ("DPH") to four ambulance companies, each of whose principal place of business lies outside of Massachusetts.2 In these letters, the DPH General Counsel alleges that the companies are subject to injunction and criminal sanctions under Massachusetts laws and regulations 3 because they have contracted with the Seabrook Joint Owners to provide ambulance services in the event of a radiological emergency. The letters warn the ambulance companies that the DPH will pursue " enforcement procedures" unless they respond within five days and confirm in writing that they have terminated their contracts.

The Massachusetts Attorney General argued on June 29, one day before thu close of the record on the Massachusetts portion of the Seabrook evidentiary hearing, that the DPH letters (unsponsored by any witness) should be admitted into evidence as proof that the SPMC makes insufficient provision

• The four companies are MEDEC Ambulance, Inc. of Portland, Maine; Rockingham Regional Ambulance, Inc. of Nashua, New Hampshire; Derek's Ambulance Service of Manchester, Portland, Maine.

New Hampshire; and B & L Ambulance and Rescue of i 3

Chapter 111C of the Massachusetts General Laws and Section 170.296(B) of Title 105 of the Code of Massachusetts Regulations. ggg, Motion at Attachment " Exhibit." i

{

l

\

______u____________ . _ _ _ _ _ _ _ }

• i i

-3 -

to adequately protect the public as required by 10 C.F.R. 50.47, at E22 Eag Tr. 28097-28102. The Board weighed the significance of the oral offer and required the Attorney General to file a formal, written motion in accordance with Commission rules. Tr. 28195.

RELEVANCE The Attorney General begins his argument with a general statement of relevance -- "the exhibit is probative of the ability of the Applicants to provide an adequate number of ambulances" under an issuo " raised in Contention JI 55."'

It is true that Contention JI 55 reads: "The SPMC fails to provide reasonable assurance that an adequate number of . .

.- ambulances . .

. Will respond in a timely fashion."

liowever, our search of the supporting bases for Contention 1

JI 55 fails te reveal any reference to the licensing of out-of-state ambulances. Basis C is the only basis raising any licensing issue and it roads in relevant part:

The remaining three companies have agreed to provide a total of six ambulances / driver teams and three ambulettes/ driver teams, but the ambulettes are not licensed in Massachusetts and cannot be used here.

The reference to the licensing of ambulettes in Basis C is exclusive of ambulances. Nowhere in the Attorney >

' Motion at 1.

a.

_.4 _

General's contentions do we find the issue of the licensing of ambulances.5 It is a longstanding principle in Commission practice that a basis for a contention must be set forth with reasonable specificity so that an opposing party is sufficiently put on notice to know, at least generally, what it must defend or oppose. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 34 (1984), citina Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732, 1742 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986). The decign of the contentions requirement is to enable the parties and the Board to ascertain at the very outset of the proceeding what issues will be in contest.

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 867 (1974).

This [ contention requirement) might wall be frustrated if, during the course of the hearing, an intervenor were given open license either to c.reate additional contested issues or to enlarge t.he ambit of those issues which have been admitted 5

One of the more puzzling aspects of the Attorney General's motion is that it fails to explain how an issue not brought to the Attorney General's attention until May 1989 could have been part of a contention submitted for litigation in April 1988.

L-_______-__-__- _ _ -

1 l

to the proceeding on the strength of . . .

intervention petitions.

Id.

In an operating license proceeding such as that at bar, the contentions requirement is particularly significant since a licensing board is obligated to restrict its consideration to the contested issues unless, on its own initiative, it concludes that one or more additional issues warrant exploration.'

Ist at n. 14, citina, 10 C.F.R. 2.760(a); Consolidated Edison Co. of New York (Indian Point Nuclear Generating Plant, Unit 3), CLI-74-28, 8 AEC 7, 8-9 (1974).

The licensing of out-of-state ambulances is irrelevant to the Attorney General's contentions; the DPH letters are therefore irrelevant to this proceeding. This finding alone is a ground for rejecting the proffered exhibits, but there are even more grounds.

' Pursuant to 10 C.F.R. 2.760(a), the presiding officer in an operating license proceeding may examine matters not put into controversy by the parties only where he or she determines that a serious safety, environmental or common defense and security matter exists. Igzas Utilities Generatinc co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981); Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station),

ALAB-869, 26 NRC 13, 25 (1987). We do not make such a determination here. Even assuming arguendo that the companies are in violation of Massachusetts laws and regulations, we daubt that the ambulance-licensing issue can ever be elevated to a serious safety concern since the Applicants can license the ambulances in Massachusetts if they meet the Commonwealth's health requirements. Egg Applicants' Response To Mass AG's Motion For The Board To Accept An Exhibit (Ambulance Licensing) (July 10, 1989), at 8-9 (" Response").

r__--_-- - -

o The Attorney General argues that the DPH " cease and I i

i desist" letters represent factual evidence, as opposed to mere legal speculation, that the Applicants' ambulances are I l in violation of Massachusetts law,7 123., factual evidence of legal wrong-doing. The Attorney General would have this 1

Board accept the DPH General Counsel's interpretation of Massachusetts General Laws, chapter 111C, section 2 and portions of 105 C.M.R. section 170.001, 31 Eag.,8 as the law of the case.' The Applicants' well-argued response supplies us with an unchallenged explanation that the Department of Public Health possesses no statutory authority to issue an order demanding that a party " cease and desist" from its commitments under a contract." Indeed, the Attorney General has not cited any clear legal authority which gives status or significance to the DPH letters. Furthermore, the

)

Applicants cite a provision of Massachusetts law which requires the Department of Public Health to allow someone I

Motion at 6.

" Motion at 6; Attachment " Exhibit."

' The Attorney General fails to assert in his Motion that the Massachusetts Attorney General's Office itself has made any legal determination that the ambulance companies  ;

are in violation of the laws of the commonwealth.

{

" Response at 7-8.

l 1

1 who is not in compliance with ambulance regulations to correct deficiencies over a 30-day period."

In addition to the Applicants' legal arguments, we find very persuasive the Attorney General's own implicit admission that the DPH letters are legally impotent. As outlined in the motion, the DPH must follow a four-step process to enforce sanctions against a suspected violator of the Department's regulations. First, it reports suspected offenses to the Attorney General. Second, the Attorney General investigates the suspected offense. Third, if warranted in the Attorney General's ooinion, the Attorney General initiates prosecution of the offender in the courts of the Commonwealth.12 Last, and most important to this Board, the courts of the Commonwealth render any decision as to whether the suspected offenders are actually in violation of Massachusetts law.

On the basis of the Attorney General's own pleading we understand the DPH letters to be judicially untested interpretations of the law which do not carry the weight of an automatic legal or regulatory injunction or sanction."

Response at 8-9.

12 Motion at 5 and Attachment C.

" The Attorney General brings the Board's attention to a 1985 case where an injunction was obtained against an out-of-state ambulance company operating in Massachusetts without a DPH license. We do not find it to be helpful. In that case the ambulance company was actually crossing state lines and providing ambulance services at mini bike races in

j The determination au to whether injunctions or sanctions issue is a ;2atter Ior the courts to decide aft 9r a decision to prosecute has been made by the Attorney Generai. The DPH lettera do not have any real immediate effect on the Applicants' contracts. Until the Applicants have their day in court, we may anly speculate whether the DPH will be successful in its threat to prosecute the ambulance companies.

The speculative nature of the DPH legal interpretation is significant because we are not required under Commission law to afford any weight to a pending, or in this case, threatened lawsuit. Lona Island Lichtina Co. (Shoreham Nuclear Powa4 Station, Unit 1) , ALAB-905, 28 NRC 515, 519 (1988). Appilcants state the issue well -- the mere threat of a lawsuit is " doubly speculative."" The threat of future legal action against the ambulance companies is thus irrelevant and therefore the letters are lacking in Masr3chusetts. See Motion at 3; Attatiment B. We are presented with different factual ciretmstances here, and a 8 whole new set of legal issues. Furthermore, if one looks closely at Attachment B of the Attorney General's Motion, a 1535 DPH letter to the National Ambtlance Comprc.y. one finds tha &, the 1985 injunction the Attornoy General citas to bolster his case was obtained after the suspected violation was reported to the Attorney General's Office for investigation and prosecution. This again demonstrates the clerical (preliminary), vis-a-vis legal (final), nature of the DPH letters. The fact that an injunction was ultimately obtained through the courts does not elevate the DPH letters y to relevant factual evidence of legal wrong-doing.

" Response at 10.

L. ,

l probative value."

The notion should be denied for this reason as well.

TIMELINESS The proffer is also inexcusably late. The close of the evidentiary hearing had long been scheduled for no later than mid-day on June 30. There had been earlier litigation on the Applicants' Letters of Agreement, but that phase of the hearing had long passed and all respective witnesses had been excused.

In the early afternoon of June 29, the Attorney General sought leave to " distribute" the letters and "say a few words" on the matter. Although, according to Assistant Attorney General Leslie Greer, the " letters speak for themselves," she recognized that the Applicants or the Staff just m+'ght want to cross-examine the DPH Deputy General Counsel who signed them. The Deputy General Counsel was not I even present to sponscr the exhibits -- not that her i i

presence would have rendered the proffer timel'c 2.:

• het account.

The Attorney General's attempt to distinguish the fact pattern before us with that faced by the Interveners in ALAB-905, suora, misses the mark. While the actual ,

circumstances leading to enforcement actions in each case l may be differert, in both situations the ultimate decision on the merits of an enforcement proceeding is left to the  !

courts, which makes them wholly analogous.

L l

L The Attorney General concedes that the proffer is late," but. argues that the filing of the subject exhibit could not have taken place at that time because the document did not exist until June 27, 1989." According to the Attorney General, although he knew that the Applicants had l contracted out-6f-state ambulance companies to provide emergency services," this same knowledge was not available to the DPH General Counsel's Office until the last week in May 1989. At the same time, while the DPH General Counsel's l Office knew of an instance in 1985 where an out-of-state ambulance company had been enjoined from operating in the Commonwealth because it had not acquired a state license,"

this same knowledge was not available to the Attorney General until the last week in May 1989. The meeting of minds on this issue came about in late May and resulted in, over one month Aater, the DPH General Counsel's Office

" Tr. 28101; Motion at 2. l IAu

" The Attorney General had obtained copieL of the contracts with the ambulance companies as early as March 1988. Egg Mangan & Paolillo Dir., ff. Tr. 19429, at 5, 9-10, 19-20. 6-8, Applicants served the Massachusetts Attorney Ge7 era) .with a filing on February 28, 1989 which included the contracts with the ambulanco companies. The filing was later introduced as Applicants Exhibit 41.

" The cace of the National Amb* lance Company has been detailed in our discussir,n of the ALAB-905 decision, suora.

M v 1 l

writing " cease and desist"' letters on June 27 which the  ;

Attorney General. now seeks to introduce as an exhibit.20 1

We agree with the NRC Staff in that the Attorney l General could have given the parties notice that the 3 i

Department of Public Health was looking into the issue of the Applicants' out-of-state ambulance contracts, as soon as it was brought to their attention, regardless of the weight that would be given to such communication.21 Moreover, the Attorney General represents the Commonwealth's departments of government in this proceeding. The knowledge possessed by the Department of Public Health and knowledge of that department's activities must be imputed to the Attorney General and vice versa. Otherwise a " knowledge" shall game can be played. Furthermore, the unusual claims that the Attorney General is not versed in the respective law of his Commonwealth and that he "was not aware that euch companies required Massachusetts ambulance service licenses"22 are not convincing.

First, we are drawn back to the last sentence of Basis C of Contention JI 55; the original Contention MAG 72A filed in April 1988:

20 gag Motion at 2-6.

21 NRC Staff's Response To The Mass AG's Motion For The Board To Accept An Exhibit (July 20, 1989), at 6.

22 Motion at 2.

= _ _ _ _ _ _ _ _ _ _ - - _ _

g The remaining three companies have agreed to provide a' total of six ambulances / driver teams and j 1

three ambulettes/ driver teams, but the ambulettes 1 are not licensed in Massachusetts and cannot be i used here. [ Emphasis added). l i While the statement may not reflect actual knowledge of all DPH regulations, it indicates that the Attorney General had l 1933 knowledge of licensing requirements for ambulance vehicles as early.as April 1988.

1 We are also mindful of statements made by Assistant Attorney General Greer during a prehearing teleconference j held.on February 8, 1989 in which she discussed in general  !

terms her view that vehicles (in this case " bed buses") used exclusively for transporting injured or sick people must be licensed in Massachusetts. Tr. 15697-699. While that discussion combined the ideas of quasi-ambulance type vehicles and out-of-state vehicles, it is clear that

• M63sachusetts ambulance-licensing requirements have long been the subject of Ms. Greer's attention.

Accordingly we hold that the Attorney General knew or should have known of the legal requirements for licensing out-of-state ambulances, by his own admission, since at least April 1988. Therefore, his motion to admit the cease-and-desist letters into evidence is inexcusably late.

CONCLUSION The Board denies the Attorney General's motion to admit the letters into evidence on three separate and sufficient

l grounds as discussed above:

They are not relevant to any contention, they are also not relevant because they are so speculative that they lack probative value, and the motion for their admission is inexcusably late.

We have not overlooked Applicants' complaint, raised once again in this proceeding, that the Massachusetts .

Attorney General has attempted to manufacture the evidence he now seeks to use as a license impediment. Worse, he has done so by interfering with contracts intended to protect the health and safety of his own citizens. In our Memorandum of November 17, 1988, ruling on Applicants' motion to sanction the Attorney General, we promised to nullify, if possible, any unfair litigative advantage such tactics might gain.

His ill-conceived effort this tile dicd of its own evidentiary infirmities; thus we need not take -

any additional action to restore fairness to the litigation.

We address the matter now simply because we are too offended by the effort to ignore it.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

[h /8fY Ivan W. Smith, Chairman

~

ADMINISTRATIVE LAW JUDGE Bethesda, Maryland August 7, 1989 I

I

j-UNITED STATES 07 AMERICA NUCLEAR REGULATORV COMMISSION 1

'In'the Matter of-  !

l

.PUBLIC SERVICE COMPANY OF NEW l Docket No (s) 36-443/444-OL HAnPSHIRE. ET AL. 1 (Seacrook Station. Units 1 and 2) 1 I

I CERTIFICATE OF SERVICE I hereoy certify that copies of the forecoing LB M&O RE MAG MOTION DTD 8/7 have caen served upon the following persons by U.S. mail, first class, except es otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judoe Administrative Judor G. Paul Bollwerk, !!!, Chairman Alan S. Rosenthal Atomic Safety and Licensino Appeal Atomic Safety and Licensino Appeal Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Regulatory Commission-Washington, DC 20555 Washington, DC 20555 Administrative Judge Howard A. Wilber Administrative Law Judae Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman Board- Atomic Safety'and Licensino Board U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Commission Washincton, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Richaro F.. Cole Kenneth A. McCollom Atomic Saf ety and Licensino Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judas Robert R. Pierce, Escuire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member U.S. Nuc! car Regulatory Commission Atomic Safety and Licensino Board Washington, DC 20555 U.S. Nuclear Neoulatory Commission Washington, DC 20555 Edwin J. Reis, Esc. Lisa B. Clark Difice of the General Counsel Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washinoton, DC 20555 U.S. Nuclier Regulatory Commission Washington, DC 20555 b

i

-? ~ Dochot No.is)50-443/604-DL LB MLO isE MAG MOT 10N DTD 0/7

. Di ane C'urran. Esc. Thomas G. Dianan, Jr., Esq.

Harmen. Curran & tousley Ropes & Gray 2001 5 Street. N.W., Suite 430 One International Place Washington, DC .20009 Boston, MA 02.110 Robert A. Backus, Esc. Paul M'cEachern, Esq.  :

Backus, Meyer & Solomon Shatnes'& hcEachern 116 Lowell Street 25 Haplewood Avenue, P.O. Box 360 Manchester,.NH 03106 Portsmouth, NH 03801 Gary W. Holmes, Esq. Judith H. Mirner Holmes & Ells- Silverglate, Gernter, Baker, Fine, 47 Winnacunnet Road Good and Mitzner

.Hampton NH 03842 8B Broaa Street Boston, MA 02110 Charles P.sGraham, Esq.. Jane Doherty McKay, Murphy and Granam Seacoast Anti-Pollution-Leaoue 100 Main Street 5 Market Street Amesbury, MA 01913 Portsmouth, NH 03801 Leonard Kopelman Esq.

Ashed N. A'mirian, Esq. Kopelman and Paige. P.C.

376 Main Street- 77 Franklin Street Haverhi!!, MA 01830 Boston, MA 02110 Georoe W. Watson, Eng. Edward A. Thomas Federal Emergency Management Agency Federal Emergency Management Agency 500 C Street, S.W.

442 J.W. McCormack (POCH)

Washington, DC 20472 Boston, MA 02109 Georae D. Bisbee, Esa. Suzanne Bresseth Assistant Attorney General Board of Selectmen Ofdice of the Attorney General Town of Hampton Falls 25 Capitol Street Drinkwater Road Concord, NH 03301 Hamoton Falls, NH 03644 l

t<

R-

l. f ~

,i Occket No.(s)50-443/644-OL

~LB M&O RE.NAS MOTION DTD 9/7 l.

\

John Traficonte. Esc. Peter J. Brann Esq.

Chief.. Nuclear Safety Unit Assistant Attorney General Office of the Attorney General Office of the Attorney General

'One Ashburton Place, 19th Floor State House Station. #6 Boston, MA 02108 Augusta, NE 04333 I- The Honorable Edward J.'Harkey, Chairman Richard A. Hampe. Esq.

-ATTN: Linda Correia Hampe & McNicholas Subcommittee on Energy Conservation and 35 Pleasant Street Power Concord, NH 03301 House Committee on Energy and Commerce Washington, DC 20515 J. P. Nadeau Allen Lampert Board of Selectman Civil Defense Director 10 Central Street Town of Brentwood

. Rye, NH 03870 20 Franklin Street Exeter, NH 03033 William- Armstrong Sandra Gavutis Chairman Civil Defense Director Board of Selectmen Town of Exeter. RFD #1 Box 1154 10 Front Street Kensington, NH 03827 Exeter, NH 03833 Calvin A. Cannev Anne Goodman, Chaitman City-Manager Board of Selectmen City Hall' 13-15 Newmarket Road 126 Daniel Street Durham, NH 03824 e

Portsmouth. NH 03801 William S. L 2d Peter J. Matthews Board of Selectmen Mayor of Newburyport Town Hall - Friend Street City Hall Amesbury, MA 01913 Newburyport, MA 01950 R. Scott' Hill-Whilton Esautre Michael Santosuosso, Chairman Lagoulis, Hill-Whilton & McGuire Board of Selectmen 79 State Street

, South Hampton, NH 03B27 Newburyport,, MA 01950

5,; ,

4,.

m 'DocketNo.(s)50-443/444-dL LB M&O RE MAC NOTION DTF S/7 i

Stanley W. Knowles. Chatrean Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710 School Administrative Unit No. 21 North'Hampton NH' 03862 Alumni Drive Hampton. NH 03B42-Sandra F. Mitchell The'Wonorante Civil Defense Director Bordon J. Huschrey. j Town of Kensington ATTN Janet Colt H Box 10, RR1 United States Senate East Kingston,.NH 03827 Washington. DC 20510 l

l 1 l- Dated at Rockville. Md. this , J l 8 day of August 1989 '

-- --- M ....... ...

Office W the Secretary of the Commission l

l 1

l 4

l l

'i i

I w_-_-__-_____- _ _ _ _ _ _ _ _ _ i