ML20155G846

Transcript of 880614 Hearing in Concord,Nh Re Offsite Emergency Planning.Pp 13,359-13,669.Witness:E Thomas

ML20155G846
Person / Time
Site:	Seabrook
Issue date:	06/14/1988
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#288-6563 ASLBP, OL, NUDOCS 8806200116
Download: ML20155G846 (314)

Text

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UNrrED STATES O NUCLEAR REGULATORY COMMISSION

.................................. .....................v ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

EVIDENTIARY HEARING )

)

PUBLIC SEF VICE COMPANY OF )

)

NEW HAMP",riIRE. et a1 ) DOCKET: 50-443-OL 50-444-OL (SEABROOK STATION, UNITS 1 AND 2) ) OFFSITE EMERGENCY,

) PLANNING

)

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t Pages: 13359 through 13669 Place: Concord, New Hampshire Cate: June 14, 1988

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%s HERITAGE REPORTING CORPORATION OjEdsf Agwears ,

O 1230 L Sonst. M.W., Sees 40s WesMagnon, D.C.20000 (2sa)62Nees 8:;06200116 880614 PDR ADOCK 05000443 '

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'u) i UNITED -STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 2

Tax 50Ttl 3

In the Matter of: )

4 )

PUBLIC SERVICE COMPANY OF ) Docket Nos.

5 NEW HAMPSHIRE, et al., ) 50-443-OL

) 50-444-OL 6 ) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING 7 )

EVIDENTIARY HEARING 8

9 Tuesday, 10 June 14, 1988 11 Room 302 Legislative Office Building 12 Concord, New Hampshire

() 13 The above-entitled matter came on for hearing, 14 pursuant to notice, at 9:01 a.m.

~ 15 BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing 3oard i 16 U. S . Nuclear Regulatory Commission Washington, D. C. 20555 17 JUDGE JERRY HARBOUR, MEMBER 18 Atomic Safety and Licensing Board U. S . Nuclear Regulatory Commission 19 Washington, D.C. 20555 j 20 JUDGE GUSTAVE A. LINENBERGER, JR., MEMBER l Atomic Safety and Licensing Board j 21 U. S . Nuclear Regulatory Commission Washington, D. C. 20555 22 23 24 25 O

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1 APPEARANCES:

2 For the Apnlicant:

3 THOMAS G. DIGNAN, JR. ESQ.

KATHRYN A. SELLECK, ESQ.

4 Ropes & Gray 225 Franklin Street 5 Boston, Massachusetts 02110 6 For the NRC Staff:

7 JOSEPH F. SCINTO, ESQ.

Acting Assistant General Counsel, Hearing Division 8 SHERWIN E. TURK, ESQ.

Office of General Counsel 9 U. S . Nuclear Regulatory Commission Washington, D. C. 20555 10 For the Federal Emergency Management Aeency:

11 H. JOSEPH FLYNN, ESQ.

12 Federal Emergency Management Agency

(~g 500 C Street, S. W.

\J 13 Washington, D.C. 20472 14 For the State of New Hamnshire:

15 GEOFFREY M. HUNTINGTON, ESQ.

State of New Hampshire 16 25 Capitol Street Concord, New Hampshire 03301 17 For the Commonwealth of Massachusetts:

18 CAROL SNEIDER, ASST. ATTY. GEN.

19 STEPHEN OLESKEY, ESQ.

Commonwealth of Massachusetts 20 One Ashburton Place, 19th Floor Boston, Massachusetts 02108 21 l For the New England Coalition against Nuclear 22 Pollution:

23 ELLYN R. WEISS. ESQ. ,

Harmon & Weiss l 24 2001 S Street, N. W.

Washington, D.C. 20009 25 O

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O -13361 V

1 APPEARANCES: (Continued) 2 For the Seacoast Anti-Pollution Leanue:

3 ROBERT BACKUS, ESQ.

Backus, Meyer & Solomon 4 116 Lowell Street Manchester. New Hampshire 03105 5

JANE DOUGHTY, DIRECTOR 6 Seacoast Anti-Pollution League 5 Market Street 7 Portsmouth, New Hampshire 03801 8 For the Town of Hampton:

9 MATTHEW T. BROCK, ESQ.

Shaines & McEachern 10 25 Maplewood Avenue P . O. Box 360 11 Portsmouth. New Hamponire 03801 12 For the Town of Kensineton:

O(_/ 13 SANDRA FOWLER MITCHELL, EMERGENCY PLANNING DIR.

Town Hall 14 Kensington, New Hampshire 15 For the Towns of Hamoton Falls and North Hampton and South Hamoton:

16 ROBERT A. BACKUS, ESQ.

17 Backus, Meyer & Solomon 116 Lowell Street 18 Manchester, New Hampshire 03105 19 For the Town of Amesburv:

l 20 WILLIAM LORD Town Hall ,

21 Amesbury, Massachusetts 01913 )

22 For the witness Edward Thomas:

23 EDWARD J. BARSHAK, ESQ.

CHRISTINE NETSKI. ESQ. I 24 Sugarman, Rogers, Barshak & Cohen 33 Union Street 25 Boston, Massachusetts 02108-2406 Heritage Reporting Corporation i (202) 628-4888 '

u.) 13362 1 INDEX VOIR 2 WITNESSES DIRECT CROSS REDIRECT RECROSS DIRE 3 EDWARD THOMAS by Mr. Oleskey 13372 4 by Mr. Turk 13496 by Mr. Oleskey. 13502 5

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1 I_N_D_E_X (Continuedl 2

EZHJBITS: IDENTIFIER RECEIVED DESCRIPTION 3

4 Massachusetts Attornev General:

5 No. 48 13378 Multipage. FEMA-REP-3, February 1981 6 Dynamic Evacuation Analyses 7

No. 49 13437 5 pp.. Memo exchange, 8 January 1986, Quinn and Thomas 9

No. 50 13544 13553 3pp., Meno, FEMA 10 Response to Contentions 11 June 3, 1987 12 No. 51 13556 13560 1pp., Memo June 5, 1987

{g s/ 13 Flynn to Thomas 14 INSERTS.

15 Descrintion: Eggg:

16 Notice of Appearance of Mr. Barshak 17 and Ms. Netski 13669 18 19 20 21 22 23 24 )

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!Q' b/ 1 PROCEEDINGS t/1 2 JUDGE SMITH: Good morning.

3 Mr. barshak has asked to make a preliminary _ statement 4 on the matter scheduled for this morning, but before that is '

5' there any other preliminary _ business.

6 Mr. Turk. I see you have Mr. Scinto this morning.

7 MR. TURK : Yes. Your Honor. I want to introduce Mr.

8 Scinto to the Board and parties. With me to my right'is. Joseph 9 F. Scinto, he is acting Assistant General Counsel for hearings 10 with the NRC staff.

11 I have two other matters I 'd like to mention on the 12 record. First, the staff will be making a limited document 13 production today. I do have some notes of telephone l

) 14 conversations between myself and other persons, which during 15 the break I'm going to ask Your Honor to review briefly for  ;

1 16 nental impressions, and then I 'll be making that production to

, 17 the parties.

18 In addition, the staff has prepared some testimony 19 for Thomas McKenna to be presented later this week, hopefully.

20 And also during the break I'll be gathering that up and 21 distributing it.

22 JUDGE SMITH: Mr. Oleskey?

23 MR. OLESKEY: During the break similarly we will l

24 distribute a motion in connection with proposed rebuttal'  !

25 testimony I mentioned on the telephone. I think I 'd rather not !

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13365 1 go into it at length today, but at this time the censiderations 2 are subsidiary ones as it is but I wanted you to have theri.

3 Those are the answers to Judge Linenberger's question 4 last week on our telephone conversation about the format ce 5 have proposed in a previous f iling . Mr. Traficonte is wofking 6 on that response now, our part of the filing I think is due the 7 17th of June this week, so that should all come together by the 8 end of the week for you.

l 9 JUDGE SMITH: Anything further? )

1 1

10 (No response) l l

11 JUDGE SMITH: Mr. Barshak, would you introduce  ;

l 12 yourself and your colleague, please, and make your statement,

(]} i 13 MR. BARSHAK: Thank you very much, Your Honor.

14 My name is Edward Barshak and my associate is 1

15 Christine Netski, and we beve an appearance slip for the two of 16 un and multiple copies here. I don't see what we ordinarily 17 call a clerk to pass it out, but we'll distribute it 11 we may. l l

18 I just want to make sure that I have one request that 19 Your Honors will entertain, and I have to put it in its 20 context. I'm here following a telephone conference I had with 21 you, Judge Smith. It was my understanding from that conference 22 that even though my client is entitled to have counsel here, my 23 role is unfortunately somewhat limited in accordance with our 24 conversation, that is, ordinarily I would question my own

() 25 witness or my own client, I wouldn't have to be required to let Heritage Reporting Corporation (202) 628-4888

13366 1 somebody else do that.

2 You explained to me on the telephone. I 'm in no ,

3 position to quarrel with-it. that for-reasons having nothing-to 4 do with my relationship with my client, this body would insist 5 that the Intervenors put him on as a witness, at which point I 6 pointed out-to you, okay. But that means that we will have to 7 sort of submit him as a witness -to the Intervenors ' counsel - to-8 questions, which we 've done.

9 We have allowed Mr. .Oleskey and others to come to our 10 office, and in the presence of Christine Netski, to ask

~

11 questions and we 've tried to help prepare the witness so ' things

_ 12 will flow smoothly.

13 The request that I have is directly related to my O

14 understanding of my role and Mr. Thomas 's position here. Mr.

15 Thomas is not a party to this proceeding. He has counsel, as I 16 understand it by your permission, only because some attacks 17 have been made upon his professionalism and his integrity. And 18 my interest as his counsel is limited to exactly that. I have 19 no role that I intend to play or should play, obviously, with i 20 respect to the substantive matters before you.

l 21 But in order to properly undertake my role as counsel j 22 for him in terms of his professional standing, you know, 23 ordinarily I suppose, I 'd have the right to bring in witnesses, 1

24 cross-examine others and so forth. I understand that 's not I 25 practical in considering the status here.

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13367-1 But I would like to have, at least, the limited right 2 to be able to question my own client after others are through.

3 Now, Mr. Oleskey, as I understand it, is going to put him 4 through direct. It makes no sense to me for me:to then 5 . question him. I do not expect Mr. Oleskey is going to attack-6 my client. The attacks in the past have come from another 7 source.

8 I therefore request that I be allowed to' question my 9 own client, not after Mr. Oleskey ir, through, but after other 10 counsel have questioned him, because my only-interest, and the 11 only reason why he has counsel, is to see to it that the full 12 story of his professionalism and his status is brought out. I 13 can 't do that until I see what attacks are made upon him upon l 14 the record.

15 So I would like, contrary to what you told me on the 16 telephone, you said I 'd have to question him af ter Mr. Oleskey.

17 If possible. I would very much appreciate at least a limited 18 right to question him, not then, but when everybody else is 19 through.

20 Then I have one other request. Since I can 't bring 21 in witnesses because it wouldn't be practical, nonetheless, 22 people are being interviewed who are involved and I expect to 23 have some affidavits which I will present or offer for 24 presentation either later on today or tomorrow.

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1 time. I understand that your procedures are such that when l 2 hearings or portions of hearings are over you have counsel 3 involved submit to you proposed findings. I would have no  ;

4 proposed findings on the merits of what 's before you, but I 5 would appreciate the opportunity to submit brief proposed ,

6 findings with respect to my client.

7 Those are my requests. Thank you.

8 JUDGE SMITH: Yes. As_you observed Mr. Thomas is not -

9 a party to the proceeding, and in effect -- in fact, he cannot 10 be affected by the outcome of the proceeding as such. Everyone 11 should understand that he is not now and never has been on 12 trial for anything or being sued for anythir.g. .

13 The matter about which you are concerned arose when  ;

O 14 the Board was called upon to make a determination whether we 15 would authorize a very large extensive discovery program based 16 upon information gathered f rom Mr. . Thomas 's deposition, and we j 17 declined to do that.

18 Counsel for the Utility has obj ected to your 19 participation here, and with a great deal of justification.  !

l 20 Because as we state, Mr. Thomas has no stake in this hearing, j 21 and others have a very large stake.  ;

22 It is simply the Board 's feeling of fairness when a 23 person in the exercise of his responsibilities comes to the 24 hearing and testifies, should be able to do so and come out of 25 it satisfactorily so. It was just a question of f airness and I

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13369 practicality, recognizing that-there l's no other way.

i There l-2 just is no.other way available to Mr. Thomas in which he can

3. have any redress, if any, if he' feels any is needed.

4 As to' your particular request - we 'lI have. to - take it 5 in context. I recognize that there is logic-to your statement

6 as appointed and never occurred-to me when I said that you 7 would be limited to following Mr. Oleskey.

8 Wel1, the better thing to dc, is for you to understand 9 that we will.not be going into matters extraneous to the 10 hearing and to the issues for which Mr. Thomas is called. We 11 will not be going into -- an excursion into character or other.

12 matt?rs at all; we just see no need for that.

13 At the end of the cross-examination of Mr. Thomas you j O 14 may come to the Board and tel1 us what your needs are.and we 15 will entertain your request, but we will not in advance give 16 you a blank check on it.

17 MR. BARSHAK: That 's fine. Al1 I'm really saying is, 18 I don 't want to question him immediately after Mr. Oleskey. it 4

19 would be meaningless to me. And when everyone else is through j 20 I may not have any questions, but that 's the point at which I 'd j 21 like to be able to come forward.

22 Thank you.

23 JUDGE SMITH: And certainly you 're welcome to j oin  !

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24 Mr. Thomas at the witness table, if he wishes to consult, 1

25 that 's your prerogative.

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O 13370 1 MR. BARSHAK: Thank you very much, sir.

2 JUDGE SMITH: Anything further before we begin?

3 MR. DIGNAN: Yes. Your Honor.

4 I understand from my learned friend Mr. Barshak that 5 he may be offering affidavits.. It will be the Applicants' 6 position that I do not wish to' cross-examine this witness until 7 the affidavits have been presented and their admissibility 8 ruled upon because I have a feeling my cross-examination might 9 want to include some inquiry as to the source-of the affidavits 10 and methods of their gathering.

11 So, if there 's an intention to of fer af fidavits I 12

[]) would prefer it if the requirement were that they be offered 13 before Mr. Thomas undergo cross-examination.

14 JUDGE SMITH: I would recommend. Mr. Barshak, that if 15 fou intend to offer affidavits that you make the substance or 16 copies of those available at your first opportunity, so that 17 other counsel can see what they 're dealing with.

18 MR. BARSHAK: Oh, I agree, Your Honor. And I also 19 agree with Mr. Dignan, I don't expect to have af fidavits during 20 the middle of the day. My understanding, every time I make a 21 prediction I 'm wrong, but my prediction is it will probably be 22 a long time before direct examination is through, so I would 23 expect that whatever affidavits I have will be available to Mr.

24 Dignan before his cross-examination begins.

() 25 JUDGE SMITH: Anything further?

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THOMAS - DIRECT 1337k' 1 (No response) 2 JUDGE SMITH: All right. Mr. Thomas, it has been 3 some time since you testified, you remain under oath.

4 Whereupon, 1 5 TJWARD THOMAS 6 having been previously d ly. sworn, was recalled as a witness 7 herein, and was examined aid testified further as follows:

8 JUDGE SMITH : You may proceed, Mr. Oleskey.

s 9 MR. OI.ES K EY : ahsf:R you.

10 Just a brief comment. I have -- I 've s tone a lot of 11 preparation, especially this weekend and even up 'o, 12 unfortunately, way hours of last evening. A nd re f l ec t i ng o n 13 the timing I have grave concerns that the schedule that the 14 Boa a wants us to observe with respect to direct really can be 15 met. I 'm going to do my best, but in putting this t7gether for 16 today, thinking about the matters that hNtars. Doris and 17 Lazarus testified to, the FEMA officials .<no followed them; the 5

18 fact that the witness had a fo$r day deposition, ttut there are 19 many, many documents which he had erv.hored or is in a key 20 position to explain because of nis seven years overseeing the 21 planning for FEMA for this case, I ao have concerns I wanted to 2 articulmte now that the schedule yot. 've abe':.sd us to keep can be 23 met.

24 And I say that, not to indicate toat I 'm not going to 25 do my best to do it but that if I icok at the outline and think O Heritage Reporting Lucporation ,

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i,)I ! \q ' 13372 THOMAS - DIRECT 1 about it and' talk with roy colleagues as I have, we all have 2 concerns that we can really shoehorn cornebody who,- in our it.ind, k 3 is the key witness, not just in the ovolution of the FEMA

) 4 position, but with_ respects the facts in the case that we know v

'- 5 you' re as concerned about o.s',ye are into a one- day direct.

S 6 With that let rne begin.

s. 7 DIRECT EXAMINATION

% DY MR. OLESKEY: '

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Mr . Thornas , how long have you had yoi.<r\ .present 9 0 g ."( j ,

10 position in: Region [1,for the Federal Ernergency tianagerner t 11 Agency? [ , y

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A (Thornas) 2 3ince Novernber 1991. .!

13 And again, that position -- your posit. ion has what Q]

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i 15 A ( ( Thornas) I ara the Chief of the Natural and )

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'i 16 Technological Hazards of FEMA, Region 1. j 17, Q In ihat cspacit/, how rnany ernergency response plens y n d r ,18 have you had cccasion to review in those approxirnately seven 1 1

1 19 years 7 l 1

20 A d.homas) The ernergency response plans -- are you

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21 tad:ing about radiological emergency response plans?' j 22 0 Yes.

23 A (lhomas) R$diological ernergency rasponse plans f or  ;

1 24 the six sites that are operating, and also pla.s for the '

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i THOMAS - DIRECT 13373 p rm kl l' over 100 plans.

l 2 Q And have you chaired the Regional RAC during thrt 3 time?

i 4 A (Thomas) Since November of 1981, yes.

5 Q How many RAC meetings would 'you say you 've chaired i l

6 during that time? ,

7 (Thomas)

A On the order of 50 or 60.

) 8 Q You understand, I 'm generalif referring, in my 9 questions, to radiological plans not to natural hazard plans; 10 sl] right?

A (Thomas) Yes.

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. Q Have you had training in connection with your

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13 position?

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) 14 A (Thomas) Yes, I have. In connection with j

! 15 radiological emergency response plans I 've had training in our I

16 National

• raining Center in Emmitsburg, and I 've had training 17 at the Harvard School of Public Health, the one week training 18 course in planning for nuclear emergencies, t

l 19 I 've also been a guest lecturer at a number of

} 20 trainir.g courses.

{ 21 Q That is, you 've given training as well as -received i

! 22 it?

l l 23 A (Thomas) That 's correct.

24 Q All right. In connection with the other plants in 25 -- the other nuc ear plants in Region 1, are there any which i

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THOMAS - DIRECT 13374 1 have beaches within the 10 mile zone surrounding the plant?

2 A (Thomas) Yes.

'a Q Which are those?

4 A (Thones) Pilgrim, Millstone. There would be, 5 perhaps, inland teaches at some of the other sites. With G respect to Maine Yankee I wouldn 't call what 's up there 7 beaches, it 's gravelly places where people will go swimming.

6 Q Is there a summer population the e, however?

9 /. (Thomas) Certainly. ,

i 10 Q And in connection with at least those three'other 11 p. ants, have you in connection with carrying out your duties ,

l 12 had occasion to review and evaluate issues in connection with 1 13 protecting summer transient populations in the event of an

() 14 accident at one of these facilities?

15 A (Thomas) Yes.

16 Q All right.

17 In connection with your work in evaluating the l

18 Seabrock plant over the years, have you kept notes of 19 conversations and meetings and the like? l 20 A (Thomas) Yes, I have. '

21 Q Have you had occasion, insof ar as you 've had time to 22 review those notes in connection preparing for your testimony 23 today?

24 A (Thomas) Yes. I have.

25 Q Have your files and notes ever been made generally 0' Heritage Reporting Ccrporation (202) 628-4888

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THOMAS - DIRECT 13375 1 available to my office or to other Intervenors in this case?

2 A (Thomas) No, they have-not. Not even until this 3 day.

4 Q Directing your attention _to the plans developed by 5 the State of New Hampshire in conjunc tion with the utilities 6 for the Seabrook Station, could you tell us when the first time 7 was that the beach population came to your atten tion in the 8 area of the plant as a special issue f or planning?

9 A (Thoma2) I'm sorrv, can you clarify the question, 10 did you say the plans developed by the utility; is that what I i 11 heard you say?

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() 12 O I said the State of New Hampshire --

13 A (Thomas) With respect --

14 0 -- and the utility?

15 A (Thomas) With respect to the plans developed by the 16 State of New Hampshire and the plans that were being developed 17 by the Commonwealth of Massachusetts, the issue of the beach 18 population was brought to my A.ttention during the course of my 19 readings prior t.o my involvemen t wi th radiological emergency 1

20 planning as one of my job responsibilities, just reading draf ts l l

21 of FEMA publications as they were coming out. And that would 22 have been in late 1981, before I took over my present l 23 responsibilities.

24 Q Would you tell us if some time in 1981 a document

() 25 called "FEMA-REP-3" came to your sttention in the course of He-itage Reporting Corporation (202) 628-4G88 l l

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THOMAS - DIRECT .13376

$ carrying out.your duties?

2 A (Thomas) Yes, it did.

3 Q Would you give us a ge raral description of that 4 document?

5. A (Thomas) Yes. FEMA-REP-3 was first brought to my 6 attention when it was in draft.. I just happened to see'a copy 7 of it, I did not make review comments. It was -- the nature of.

8 the document is a response to a recuest from the Nuclear 9 Regulatory Commission that FEMA review the emergency -- I 'm 10 sorry, not emergency, the evacuatior time estimates et 12 11 nuclear powec sites around the country; review'them with 12 respect to differences in methodology and the implications of 13 those evacuation time estimates.

O 14 The publication itself fairly well describes its 15 purpose and nature.

16 Q Did you have any involvement in the preparation of 17 that document?

18 A (Thomas) I did not.

19 Q What does the reference "REP-3" connote? i 20 A (Thomas) It connotes the numer$ cal sequence of 21 planning documents for the radiological' emergency response plan 22 program of FEMA; and I believe it was the third document in a 23 series of documents.

1 24 En. OLESKEY: Just a moment. Your Honor, j 25 (Pause)

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THOMAS - DIRECT 13377

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\w//2 1 MR. OLESKEY: I 'm going to furnish the witness with a 2 copy of this document, Your Honor. It was marked at his 3 deposition. We are having additional copies made this morning.

4 but Ms. Keough informs me that we probably won't have them-S until 10 o 'c lock.

6 For continuity I 'd like to question hirn about them, 7 about the document now even though we won't have enough copies 8 for people who didn't bring their deposition copy until they 9 come in around 10 o ' clock. Is that agreeable?

10 JUDGE SMITH: Does anybody obj ect to that?

11 (No response) 12 JUDGE SMITH: Proceed.

13 MR. OLESKEY: Okay.

14 bY MR. OLESKEY:

15 Q Do you have a copy of REP-3, Mr. Thomas? Does yo nr 16 counsel have one?

17 A (Thomas) Yes.

18 Q Mr. Thomas, you have a copy of REP-3 in front of you 19 dated February 1981?

20 A (Thomas) Yes, I do.

21 Q Are there references to the Seabrook site in this 22 document?

23 A (Thomas) Yes, there are.

l 24 Q Did you review this document in connection with  :

1 25 undertaking your duties as the Chief of the Division in Boston? l O Heritage Reporting Corporation (202) 628-4888

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THOMAS - DIRECT '13378 1 A (Thomas) Yes, I did.

2 ~Q Have you had recourse of this document for reference 3 during the carrying out of your duties in evaluating the 4 . emergency response plan for Seabrook Station?

5 A CThomas) Once or twice I 've looked at it.

'6 Q From time to time?

7 A Yes.

8 Q All right.

9 MR. OLESKEY: I 'd like to mark this as an 10 identification exhibit, Your Honor, at least on the record, and 11 that would be Mass. AG 48 for identification.

12 (The document referred to 13 was marked for.

14 identification as 15 Massachusetts Attorney 16 General Exhibit 48.)

17 BY MR. OLESKEY:

18 Q Mr. Thomas, do you know if this document 1was provided 19 to the NRC by FEMA?

20 A (Thomas) I don't know that of my personal knowledge, 21 I j ust know that there 's a -- what appears to be a cover letter 22 transmitting it to the NRC inside the document itself.

23 Q All right. Can you summarize briefly for us your 24 understanding of the discussion of Seabrook as distinguished 25 from other sites discussed in REP-3?

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THOMAS - DIRECT 13379 1 MR. DIGNAN: Obj ect ion. The document speaks for 2 itself, if it be admissiole or-relevant.

3 JUDGE SMITH: Would you repeat your question.

4 MR. OLE 3 KEY: Yes. I wanted him to summarize'briefly 5 for you references to.Seabrook.in this REP-3 document'as'a'way 6 of shorthanding -- in a shorthand fashion explaining to the 7 Board some of the background he got when he came on. board from 8 reviewing this document which analyzing a number of sites 9 including Seabrook.

10 JUDGE SMITH: Well, it may be the document speaks for 11 itself, and that to a large extent renoves any damage that 12 could be done. On the other hand, if we don 't permit it, it 13 will be a very pa. 4 awkward process to try to extract .lue 14 information on our own.

15 MR. DIGNAN: The problem is. Your Honor, I don 't 16 think the document itself is admissible for any issue in this 17 case. And so what we 're going to do is get a summary of a 18 document that I don 't think he can get in as relevant; and 19 that 's the basis of the obj ection. I don 't usually use, 20 document spea'/s for itself in NRC proceedings, but what I see 21 here is an attempt to read in a document of extremely 22 questionable relevancy to any issue before this Board.

23 JUDGE SMITH: Did you prepare a cross-examination 24 plan?

25 MR. 0LESKEY: Are you addressing, Mr. Dignan?

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THOMAS - DIRECT 13380  ;

r' k-} 1 JUDGE SMITH: No, to you. I mean, do you have an 2 examination --

3 MR. OLESKEY: I have an outline of examination, i t 's 4 an outline of direct and not an outline of cross.

5 JUDGE SMITH: Yes, I misspoke when I said. cross. Did 6 you intead to provide it to the Board?

7 MR. OLESKEY: I guess -- well, I hadn 't actually.

8 There are probably things -- there are undoubtedly things I 9 would edit out including my own handwritten notes.

10 JUDGE SMITH: Well.-if it was not intended for us I 11 wou ldn 't ask you to give it to us.

12 MR. OLESKEY: I could edit one for you, but it would 13 take some work at this point.

O 14 JUDGE SMITH: Well, you see, I 'm having dif ficulty 15 following the logic of your approach, so I can 't rule on it.

16 So you 're going to have to be a little more forthcoming under 17 what you 're trying to establish.

'l 18 MR. OLESKEY:

Well, this is a docur.. nt that was 19 prepared by FEMA in 1981 as an independent assessment of ,

i 20 evacuation times around 12 nuclear plants including Seabrook.

21 Now it singles out Seabrook as a special case, and discusses l 22 Seabrook separately from the other plants as well as discussing 23 the other plants.

24 The pointlaf the document, as I understand it, was to 25 make recommendations for possible actions, protective actions,

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THOMAS - DIRECT 13381

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\l 1 given the types of -- given the nature of the evacuation times 2 that were hypothesized at that period 1981 around these various 3 nuclear plants.

4 It remains, as I understand it, a work in currency, 5 it 's still relied upon at FEMA as a kind of overview.of 6 evacuation times and possible response mechanisms, possible 7 protection actions at the various -- around the country.

8 It was the first time they had had occasion to 9 address the issue in the form of a study of what are evacuation 10 time estimates? They addressed it in the context of 12 plants 11 including Seabrook and came up with a general discussion which 12 has remained the basis for discussion and thought at Seabrook 13 -- at FEMA since that time.

O 14 And it became the basis -- finally,.it became the l

15 kind of seminal document, as I understand it, for this witness. '

l 16 It was something that was current when he became chief of his 17 division and it became a basis for this thought and his l 18 opinions thereafter.

19 MR. DIGNAN: Your Honor, my difficulty.to start with 20 is the description of the document. The document was not a 21 document which FEMA picked out 12 sites. Indeed, the document 22 on its face recites the NRC picked out 12 sites and asked FEMA 23 to analyze these 12. The only reason FEMA included Seabrook or 24 any of the others in the document is because NRC asked them to .

l 25 do an analysis of these particular plants.  !

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THOMAS - DIRECT 13382 0 1 And this is what I mean about a document of very 2 questionable relevancy. I don 't understand that FEMA witnesses 3 will testify later to have stated their relying on this 4 document l'n any way. I haven 't heard any of my witnesses state 5 they 're relying on this document in any way.

6 JUDGE SMITH: You haven 't heard Mr. ' Thomas yet.

7 MR. DIGNAN: I haven 't heard Mr. Thomas, but Mr.

8 Thomas is being asked now to read this thing in. Now, if we 9 wcnt to establish that Mr. Thomas relied on this document and' 10 that this document forms tlut basis of some, if any, opinions he 11 is going to give, that 's one thing; but it hasn 't been 12 established yet.

13 JUDGE SMITH: Yes. And it certainly could not be O 14 because of your very early obj ection. Mr. Thones is certainly 15 going to be free, to the extent that it relates to the subj ect 16 matter of this phase of the hearing, sheltering the beach 17 population, he 's going to be f ree to testify concerning the 18 input and the input that he had into the. document. I guess 19 there 's none. To the extent that he himself used.it, and the 20 extent that he knew that his organization used it.

21 MR. DIGNAN: And if that foundation is laid, my 22 obj ections will cease. It hasn't been laid at this time. He 's 23 been asked to summarize the document without the foundation.

24 JUDGE SMITH: I would have expected that to come in.

25 Proceed. I think we 're all --

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THOMAS - DIRECT 13383

(~

(~)/- 1 MR. OLESKEY: I 'm ready to proceed.

2 JUDGE SMITH: I think we 're all operating under the 3 same rules and under this same understanding now.

4 BY MR. OLESKEY:

5 Q Mr. Thomas, when you took on your present post and 6 had available a copy of this document, FEMA-REP -3, did you 7 review it? Did you read it?

8 A (Thomas) I had read it before I assumed my present 9 position.

10 Q And you 've already testified that you 've consulted i t 11 from time to time sicce then; is.that right?

12 A (Thomas) That is correct.

13 Q What is the status of this document within FEMA O 14 today, that is, is it guidance; is it discussion document? How 15 would you characterize it f rom the agency 's perspective, as you 16 understand it?

1 17 A (Thomas) I would characterize it, again, just 18 following whet I understand the agency 's perspective to be, 19 it 's articulated in a guidance document called "IT-1" which 20 sets forth what our operative guidance documents are, and 21 assigns different levels to those documents; and FEMA-REP-3 is 22 one of those operative documents at a certain level ~.

23 Q And with respect to the Seabrook Station site, was 24 there anything in the document which,Lwhen you reviewed it 25 originally or from time to time, you 've relied upon as guidance O Heiitage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13384 1 or thought for yourself in performind your duties?

2 A (Thomas) Yes.

3 Q All right. Would you indicate what aspects of REP-3 4 have been useful to you ana relied upon by you in performing 5 your duties as chief of your division since 1981?

6 A CThomas) I think to summarize the thing that struck 7 me most about the document was that, of the 12 sites that we 8 have been asked to look at, Seabrook was said to be --

9 JUDGE SMITH: Excuse me, Mr. Thomas.

10 (Discussion off the record to photcgrapher.)

11 JUDGE SMITH: Proceed. Go ahead.

12 THE WITNESS: '(Thomas) The thing which had struck me 13 most of all about this when I read it and as I read it again O 14 was, Seabrook of the 12 sites that we at FEMA had been asked to 15 look at was considered a special case. And special 16 recommendations were made with respect to Seabrook. The 17 statement that Seabrook is a special case is located on page 10 18 of the document in paragraph, that has the letter "C. "

19 And other things that struck me were on page 46, 20 talking about the behavior of drivers caught in congestion 21 within direct sight of Seabrook can only be guessed at, at this 22 time.

23 And the other thing that struck me was that we were 24 making specific recommendations on page 48 in the paragrap'.;

25 numbered eight with respect to looking at the behavior drivers O Heritage . Reporting Corporation (202) 628-4888

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THOMAS - DIRECT 13385 f

As)s 1 on the beach within sight of Seabrook, looking at sequential 2 evacuation, sheltering the population, and building 3 supplemental an evacuation, only ramps on~to I-95.

4 That -- those thoughts made an impact on me, a very 5 great impact. And that impact has continued right through to 6 this day.

7 BY MR. OLESKEY:

8 Q Are you saying that in 1981 the agency made some 9 tentative or proposed recommendations for ways of dealing with ,

10 the beach population at Seabrook? l 11 A (Thomas) That was and is my understanding; that is 12 correct.

13 Q All right.

O 14 Is there anything else about the document which, cs 15 you sit here today, you thought important when you reviewed it 16 and have relied upon in carrying out your duties since that 17 time? 1 18 A (Thomas) The -- there was another area that that 19 struck me and that was, the length of the evacuation times at j 20 Seabrook were -- had a very substantial range. There was a 21 great uncertainty at this time, in 1981, as to what those 22 evacuation times might be. And it 's very clearly expressed in 23 here and in other documents that I was reading at about this 24 same time, perhaps a little bit later, in an NRC publication 25 talking about the need for traffic management in the l

(

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THONMS - DIRECT 13386 1 evacuation.

2 Of the sites around the country Seabrook had one of 3 the longer evacuation times, I believe 'it was the second 4 longest or of that magnitude, and it struck me.that we would 5 certainly want to carefully follow the recommendations to look 6 at those evacuation time estimates and see if.they could be 7 reduced. And certainly, also, to try and come to a good 8 understanding about what those evacuation time estimates were 9 in terms of our evaluation of whether there was reasonable 10 assurance of an adequate level of public protection.

11 And also, with respect'to the issue of making sure 12 that the State was able to have a good evacuation time estimate 13 so that it could make proper and well informed protective O 14 action recommendations to the public.

15 Q And did these issues which you have indicated caught 16 your attention in REP-3 in 1981 become the focus, at least in 17 part, of your concern in the planning process that continued 18 from 1981 forward?

19 A (Thomas) Yes. )

20 MR. OLESKEY: I 'd like to offer so much of the 21 document, Your Honor, as the witness has referred to for the i 22 reasons already indicated, that it 's a technical document 23 authored by FEMA. It was relied upon by him; it is still 24 relied upon and used at FEMA. And it formed a basis for his 25 own thought and evaluation f rom 1981 forward.

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THOMAS - DIRECT 13387

() 1 JUDGE SMITH: Obj ections ?

2 MR. DIGNAN: I have no obj ection if the entire 3 document is offered. I obj ect to it being offered just the 4 pieces that the witness referred to because I.think' it might be -

5. interesting to explore the entire document.

6 MR. OLESKEY: I 'm willing to have that done. I.

7 thought it would be 'obj ected to, but I 'm certainly willing to 8 have the whole document go in.

9 MR. TURK: Your Honor, I have a question for Mr.

10 Oleskey on this. Is the purpose in order to establish a direct 11 case through Mr. Thomas or is.the purpose to use the document 12 for impeachment to FEMA when their testimony is presented 13 later.

14 MR. OLESKEY: Well, I 've of fered it generally. I 15 don 't think, as I 've explained it, I don 't think I have to 16 characterize it further.

17 MR. TUPK : I don 't obj ect --

18 JUDGE SMITH: I 'm not sure when it really boils right 19 down to findings that the Board would make and proposed 20 findings that the distinction is going to be very important.

21 There 's going to be two points of view on this: FEMA 's present 22 point of view; and the one advanced by the Intervenors, and-23 rather its rebuttal or direct or case in chief, I don 't see how 24 it matters.

25 MR. DIGNAN: When I heard the original' offer, and O Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13388 maybe I misheard it, was that the purpose of the offer was to 1

2 show that this was a document Mr. Thomas had used in for ming 3 his j udgments. Is that correct, Mr.-Oleskey, 'and that was the 4 purpose of the offer?

5 MR. OLESKEY: That was correct.

6 MR. DIGNAN: It is not offered for the truth of the 7 matters contained.

8 MR. OLESKEY: Well, I represented, based on what the 9 witness has said, that I understood it was a document still 10 relied upon at FEMA. In fact, we all have a package of 11 guidance documents and this is listed number three on that 12 list. so --

13 MR. DIGNAN: Well, I don 't know --

0 14 MR. OLESKEY: FEMA hasn 't disavowed it.

15 MR. DIGNAN: I will note an obj ection, if the 16 document is being offered generally, because I don 't have the 17 author to cross-examine. This witness had not even any input, 18 never mind the authorship of it.

19 JUDGE SMITH: We understand the. document is being 20 offered to show that it was used by Mr. Thomas and used by ]

21 FEMA, and whatever the document intended -- whatever the author '

22 intended by the document is not directly relevant. It 's how it 23 was used and how it was understood and how it was employed, l 24 MR. TURK: Your Honor, j ust so I 'm clear on my 25 obj ection. On that basis I don 't obj ect. I see that as O Heritage Reporting Corporation (202) 628-4888

l l

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l THOMAS - DIRECT 13389 1 basically being a historical document, something that was 2 reviewed, relied upon at some time that formed the sense of Mr. l 3 Thomas 's opinion; I have no obj ection on that basis.  ;

4 JUDGE SMITH: Well, it 's more than that -it 's more 5 than a historical document, the offer as I'see it. I see it 6 being offered -- well, you tell me how you 're being of f ered, -

7 you respond to Mr. Turk.

8 MR. OLESKEY: Well, you 've accurately characterized 9 it in our colloquy a noment ago. In addition, it seemed -- it 10 seems that it formed for FEMA a base for certain kinds of 11 inquiries and questions to be asked about the subsequent j 12 development of plans at Seabrook. So it became.a document that 13 was a base point of departure, if you will, by which the agency 14 could make reference to some 'on73rns that it highlighted as 15 early as 1981, and ensure, u. least through Mr. Thomas, and I 16 take it from the rest of his testimony, as I-understand it.

17 officials in Washington that questions were asked from time to 18 time of the State and utility about aspects of the beach 19 population situation that were highlighted in this report.

20 JUDGE SMITH: Okay.

21 MR. TURK: I do have ~ an obj ection on the broad basis, ,

22 Your Honor. The obj ection is that this witness is not l 1

23 testifying for FEMA. If a FEMA witness, somebody who is put 1

24 forth by the agency, wants to adopt this document as something I

25 that forms a basis for FEMA 's opinions, I won 't obj ect in the H

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THOMAS - DIRECT 13390 1 way that I am to Mr. Thomas 's use to the document.

2 JUDGE SMITH: Overruled.

3 MR. OLESKEY: Well, and as I said, Your Honor, we 4 will have that marked and supplied to the reporter as soon as

.5 it comes in, and the 10 copies.

6 JUDGE HARBOUR: Before you proceed, Mr. Oleskey.

7 MR. OLESKEY: Yes, sir.

8 JUDGE HARBOUR: I 'd like to know the date of the 9 publication of that document. Are there other publication 10 versions of it or is that the main version?

11 MR. OLESKEY: My understanding is that that 's the 12 only version, but I 'd like to have Mr. Thomas respond directly.

13 if I may.

14 THE WITNESS: (Thomas) The answer to your question, 15 Your Honor, is that is the only version that I 'm aware of. I 16 believe it 's the only version.

17 JUDGE HARBOUR: Publication date of 1981?

18 THE WITNESS: (Thomas) 'Yes, sir. <

l 19 MR. OLESKEY: It says' February 1981 on the front. '

20 Your Honor.

21 JUDGE LINENBERGER: Mr. Oleskey, before we get into a 22 new line of interrogation here, I should like to ask Mr. Thomas 23 for clarification about something that I think I must have 24 misunderstood.

25 It seems to me that at one point in your Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13391 1 characterization of time and the REP-3 document you indicated 2 that there was lack of information about evacuation times, but 3 at another point in the discussion with Mr. Oleskey it seemed 4 to me, if I heard you correctly, you were talking as though 5 evacuation time information had become more refined or more 6 detailed, more accurate or more specific, whatever.

7 I 'm not quite sure how those two points of view 8 relate chronologically; can you shed light on that, please, 9 sir?

10 THE WITNESS: (Thomas) Yes,'I can, 11 The FEMA-REP-3 document, as I recall it, indicated a 12 range of evacuation times and indicated that there were several 13 different estimates that had been reached.

O, 14 There is a later NRC document of which Thomas Urbanik 15 was the lead author that also gave a tremendous range in the 16 possible evacuation times at Seabrook.

17 And in response to a question as to what impact that 18 made on me, the impact was f rom REP-3 and also from the later 19 NRC document that indicated that there was uncertainty as to 20 what the evacuation time would be, and indicated that the 21 evacuation time would be greatly influenced by the amount of 22 traffic control which would >e in effect.

23 And my response was designed to indicate that there 24 were two major sources of guiding light, as it were, to me and 25 to my staff as we worked with the State during the period of O Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13392 b-)

s 1 1981, '82, '83, and was the NRC document and REP-3.

2 JUDGE LINENBERGER: Thank you, sir.

3 BY MR. OLESKEY:

4 Q Mr. Thomas, you-referred a few moments ago to a part 5 of what's now Exhibit 48 describing Seabrook as a special~ case; 6 do you recall that?

7 A (Thomas) If FEMA- REP-3 is Exh'. bit' 48?

8 Q Yes. I 'm sorry.

9 A (Thomas) Y e r, , I did.

10 Q Let me ask you, if there 's a term of art at FEMA 11 characterized as special population?

12 A (Thomas) Yes, there is.

15 Q What does that mean at FEMA or to FEMA?

O 14 A (Thomas) It 's really a shorthand for special needs 15 populations. These are populations usually that has special 16 needs for transportation. It also can include populations that 17 have special need for medical attention, but it primarily is 18 transit-dependent persons, persons that are in nursing homes, 19 persons that are in hospitals that need either transportation l 20 provided to them or some specialized transportation or some j 21 c%her special services in the course of an evacuation.

27 Q Has FEMA regarded the beach population in the area of 23 Seabrook Station as a special population within the meaning of 24 that term?

25 A (Thomas) As we now use the term, I don 't think that 1

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THOMAS - DIRECT 13193 o

w 1- would be fair to say. We -- with respect to what we estimate 2 to be about 98 percent of the population, we have not regarded 3 them as transportation dependent. They are a special 4 population in that we 've given them a special attention, but 5 they 're not -- when we say, special population, we 're usually 6 talking about people who have special and needs usually with 7 respect to transportation.

8 Q All right.  !

t/3 9 I want to try to take you as concisely as possible 10 through the years from-1982, '-3, '-4, and '-5 up to the time 11 that your memo of December 31, 1985 was distributed to the RAC, 12 and there 's been a lot of testimony about that, that the Board 13 is familiar with. But I want to' set a little context for that

/~T

"# 14 by asking you some questions about the intervening years.

15 At the time that you became chief of your division 16 were there Licensing hearings scheduled to take place in i

17 connection with the emergency response plans for Seabrook I 18 Station?

19 A (Thomas) Yes.

20 Q When were they initially scheduled to take place?

21 A (Thomas) I really don 't recall, and I wasn't able 22 to find it in my records. My recollection is that it was in 23 the summer of 1982 or perhaps the early part of 1983, would be 24 the first recollection I have of the schedule for the Licensing I t

25 hearings.

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THOMAS - DIRECT = 13394 1 Q And did you have -- did your' duties include preparing 2 your agency for these possible hearings?

3 A CThomas) Yes.

4 Q All right. In connection with that did you have' 5 dealings with the State of New Hampshire about the status of 6 their preparation of an emergency response plan?

7 A (Thomas) Yes.

8 Q What did you do, let 's say, in-1982 in connection 9 with evaluating the status of the plans for New Hampshire?

10 A CThomas) I think the direct answer to your question 11 is,-I did very little with respect to evaluating the plans, the 12 plans did not exist.

13 Q Let me be more precise. Did you do anything in an O 14 effort to move the process forward, so that there would be 15 plans you could evaluate should hearings begin in '82 or 16 thereafter?

17 A (Thomas) Yes, very much so.

18 Q What did you do, sir?

19 A (Thomas) Well, the -- actually, the first meeting 20 that I ever went to on radiological emergency planning was in 21 January of 1982, and it was with the State of New Hampshire 1

22 involving their plans for the Vernont Yankee - site. But during l l

23 the course of that meeting I had been requested by the Regional 1 l

24 Assistance Committee to emphasize to the State that in the 1 25 course of their preparations for Vermont Yankee they should O Heritage Reporting Corporation (202) 628-4888 i

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THOMAS - DIRECT 13395 1 keep in mind the need to prepare for Seabrook and that although 2 they may be able to develop the personnel infrastructure.to 3 support their role in the small portion of the emergency -

4 planning zone at Vermont Yankee, they should keep in mind that 5 it would be a much larger task to developfthe personnel -

6 resources at the State level to handle their responsibilities 7 with respect to Seabrook.

8 And I was requested by the RAC to make that point 9 very, very forcefully to the State. And that. began-a long 10 series of technical assistance, meetings with the State to 11 encourage them to develop the plans and the infrastructure, and 12 to hire the number of people that would be necessary for them 13 to carry out their responsibilities for Seabrook.

O 14 Q Did your office have certain resources that had 15 of fered to make available to the State?

16 A (Thomas) Yes; surely, we offered to give technical 17 assistance reviews and guidance and to meet with them.

18 Primarily our role was to encourage them, as our role is by 19 regulation and by agreement with the Nuclear Regulatory-20 Commission, to encourage them to do the best possible job they 21 could with respect to radiological emergency plenning.

22 Q And during 1982 did you have any relationship, any l 23 working relationship with the NRC in connection with these l 24 efforts to prompt New Hampshire to move forward in development 25 of the plans?

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THOMAS - DIRECT 13396

} 1 A (Thomas) Yes.

2 Q What was that relationship?

3 A CThomas) Basically, the -- we would occasionally get 4 a visit from the NRC counsel and the NRC Washington staff 5 that 's concerned with licensing;- and they would encourage _ us _ to >

6 move forward to get the States moving forward'with preparation 7 of adequate plans. ~And the NRC staff would express concern to 8 us that better and f aster progress wasn't being made with 9 respect to radiological planning as they sought, that, you 10 know, the hearings were scheduled and the plans j ust simply 11 weren 't done.

12 Q Did you continue working with the State of New 13 Hampshire in the years thereafter in connection with these O 14 efforts to produce a plan and subsequently to refine plans?

15 A (Thomas) Both the State of New Hampshire and the  !

16 Commonwealth of Massachusetts; yes, sir.

17 Q And did you continue working with the NRC in this 18 same vein? 1 1

19 A (Thomas) Yes. I 20 Q Under the agreements between your agency and the NRC, l 21 can the NRC request a finding from FEMA as to the status of an 22 emergency preparedness plan for a nuclear facility?

23 A (Thomas) Yes.

24 Q What -- as you understand it, what 's the nature of 25 such a request and the finding which is the obj ect of that O Heritage Reporting Corporation (202) 628-4888

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THOMAS - DIRECT 13397 1 request?

2 A (Thomas) The nature of the request is simply a 3 letter from the appropriate person at the NRC headquarters to 4 the' appropriate person at our headquarters requesting a finding 5 and. determination with respect to the status at a particular 6 time, status of emergency preparedness planning at a particular 7 nuclear powerplant.

8 Q And the finding could fall under what potential range 9 when CEMA responds to such a request?

10 A (Thomas) Well, it would be a factual finding as to 11 what the status of emergency planning was at that point in 12 time.

13 Q Would it -- is there an infinite spectrum of answers O 14 or would the response be only the plan is adequate or the plan 15 is not adequate?

16 A (Thomas) Well, the finding would be much longer than 17 that, it would be a document describing a plan review and if an 18 exercise report was available that would be inclined as well.

19 The findings typically, as a matter of practice, the NRC would 20 ask us if we were prepared at that point to make a positive l l

21 finding on planning or a positive finding on the plan in the i I

22 exercise, and if we were they would request it.  !

23 Q Does this include a finding of reasonable assurance?~

24 A (Thomas) The -- yes, that is the nature of the 25 finding. The bottom line, the conclusion of the finding is O Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13398 1 whether or not there was'a reasonable assurance of an adequate 2 level of public cafety. The basic language set forth st -- in 3 our regulations. FEMA 's regulations at 44 CFR 350. 5(b); and 4 that would be the bottom line. It would be a predictive 5 finding if we hadn 't had an exercise.

6 Q And what do you mean by, predictive finding?

7 A (Thomas) It would be nredictive in that it would be 8 a matter of saying that with respect'to the plans, without 9 having an exercise of the plans, that the plans indicate that 10 there 's a reasonable assurance, even though the plans haven 't 11 been tested yet; it would be a caveat on them. ,

12 Q Once your agency made such a finding of reasonable 13 assurance, would that be the end of its involvement in 14 evaluating the plan except for exercise, in a case where 15 exercise had not yet taken place?

16 A CThomas) It could be. Typically find..ny,s were 17 requested in response to either a Licensing hearing or in 18 response to a petition that had been filed with the NRC. If it 19 was a petition and we made a finding of reasonable assurance, 20 that usually would -- that would be communicated to the 21 petitioners and that would generally end the matter. If it was 22 a Licensing hearing we would, pursuant to the memorandum of 23 understanding, we would be giving testimony.

24 Q Did there co.ne a time in these early years, that 25 you 're describing, when the NRC requested a finding in O Heritage Reporting Corporation (202) 628-4888

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THOMAS - DIRECT 13399 m

kl 1 connection with the New Hampshire plan from FEMA?

2 A (Thomas)' There were perhaps a continual series of k

3 requests, and the date would be changed as we would go- along. \ ( . 1 4 I don 't think that there was a letter every single time 69 si 5 exchanged between the agencies. It was just> simply a> ratter C ,,

6 that there was a request for a finding from'ine NRC andsthe 7 date that the finding was due would change depending upon what 8 we said was the status of emergency preparedness plannir,g. ,

9 Q When do you recall the first such request for a, 10 finding of reasonable assurance of FEMA by the NRC?  !'

11 A (Thomas) The -- I don 't have an exact memory l of ~ die 12 date. It would have been four to six months prior to the 13 scheduled date of the hearings on Seabrook. My recollection O 14 is, that was being requested es of September 1982, but I don 't 15 have good records in that period of time on this issue, and I 16 j ust don 't recall.

17 Q Your best recollection is some time in '82 or early 18 '83?

19 A (Thomas) That is correct.

20 Q And how was that request answered by. FEMA?

21 A (Thomas) The -- a couple of different ways. We 22 informed the NRC as to what the status of emergency 23 preparedness planning was, which was at that point that we had 24 no plans in from either State, and there was no evidence really 25 at all of emergency preparedness planning for the Seabrook O Heritage Reporting Corporation (202) 628-4888

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13400

[~}

'- 1 Nuclear Powerplant in the period around Se'ptember 1982.

you said' you 'd been workirigLst wit ly jhg ,NRC j# s 2 Q Well, 3 this period in any event, isn 't that right?. N'.

h 4 A (Thomas) That 's correct. And I' characterized this, 5 we would have an occasional meeting and perhaps a phone call.

>5 6 Angitbecamemorefrequent -- the phone calls ab.d the contacts 7 .became more frequent as we approached this period of time here 8 in 1988. ,

~%

Q Was the NRC apprised of the ett.tus of emergency

. planning at all times when you were the chief of the division i

A

' 1,1 from 1981 on? l 12 A (Thomas) Yes, as often as they asked. There 'vas a 13 . document-that is submitied or was submitted av one point on a i O' ' 14 monthly basis, a j oint agency report called "The Congress 15 Report," which was designed to inform Senator Simpson and his 16 committee as to the status of emergency preparedness planning, 17 and in that there would be a running discussion of the status.

18 of all the emergency preparedness planning for the licensing, 19 the sites that'were in licensing around the. country.

20 Q Did the NRC tell FEMA, in this' period in' '82 or~ early 21 '83 when it was requesting a finding, why, if it knew as well 22 as FEMA, the status of the plans for New Hampshire and 23 Massachusetts it was then requesting an affirmative finding by 24 FEMA at that time?

25 MR. TURK: Obj ect ion, no premise laid. No proper

. () Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13401 1 form.

2 JUDGE SMITH: I don 't understand your obj ection.

3 MR. TURK : Mr. Oleskey states, why did the NRC ask 4 you for the finding if they knew as well as you. I don 't see 5 that that premise has been laid as to what NRC 's knowledge of 6 the status of the planning was.

7 MR. OLESKEY: I just went through that at some 8 detail. There were regular contacts. Then there became 9 monthly reports that the two agencies filed. And I simply 10 Ssked him if he was told --

11 JUDGE SMITH: Well, ask him if he agrees with the 12 premise and let 's get on with it.

13 MR. OLESKEY: All right.

' O 14 BY MR. OLESKEY:

15 Q Do you agree with -- do you understand the premise of 16 my question, Mr. Thomas?

17 A (Thomas) I believe I do. I 'm not ready to agree 18 with the premise. If I -- wnat I understood your question to 19 be, in essence was, did the NRC know as much as we knew about 20 the status of emergency prersredness p'anning. and 21 nevertheless, ask for a positive finding? No, I don 't agree 22 with that.

Q You 'c say they knew less?

2 A imas) Well, even though we had communication with

. ie, they knew less than we knew. I mean, we would CE)

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L THOMAS - DIRECT 13402 0: 1 give'them summaries and briefings.

2 Q Let me simply ask you this then, did the NRC indicate 3 to FEMA in this period in '82 or '83 when the first request was 4 .made for a positive finding, why was it being made at that 5 time?

6 A (Thomas) Yes, It was being mad? on the basis that 7 there was a time line schedule and they expected to have the 8 finding four to six months prior to the start of the hearing.

9 Q Fine.

10 And following that first occasion, were there later 11 occasions when the NRC requested similar findings by FEMA with 12 respect to the status of the plans?

13 A With respect to the status? Sure, we would have -- I O 14 won 't say regularly, in that they were scheduled at a 15 particular time, but we would have increasingly frequent 16 discussions with NRC headquarters and with NRC regionel 17 personnel as to what the status was of the plan; sure. l 18 Q But what I'm asking you is if there were later 19 occasions when the NRC requested a finding of reasonable 20 assurance by FEMA between this initial event in d2 or early 21 '83 and today?

22 A (Thomas) As I tried to say, there was perhaps a 27 rolling date that would be moved along as to when the NRC 24 wanted the finding on Seabrook, and we would explain to them 25 what the status of emergency preparedness planning was, and O

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THOMAS DIRECT 13403

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1 typically the date would move. forward; and that happened 2 occasionally. And occasionally we would have an oral request 3 as to when we would be ready to make a finding on Seabrook.

4 Q And did FEMA ever indicate that it was ready to. make 5 an affirmative finding of reasonable assurance in connection 6 with these requests, whether rolling or otherwise?

7 A (Thomas) We did not so indicate, no.

8 Q I 'd like to direct you now to 1983, did there come a 9 time when New Hampshire formally submitted an emergency 10 response plan for the Seabrook Station to FEMA?

11 A CThomas) Yes.

12 Q Do you recall if that was approximately in May of 13 '83?

O 14 A (Thomas) That sounds correct, yes, 15 Q What did FEMA do when that plan was submitted in May 16 of '83 by New Hampshire?

17 A (Thomas) Well, it did come in as a formal request 18 for review and we respor,ded to the State that since it was a 19 partial submission, it was only some or many of the local 20 plans, as I recall, it didn 't include the StatO plan, that we 21 would not be able to process that partial submission as a 22 formal regeest. And by that, what I mean when I talk about a l

23 formal request, we have regulatory obligations when we receive 24 a formal request from a State to put a notice in the Federal 25 Register and to initiate a period of public comment.

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THOMAS - DIRECT 13404 O

k- 1 And in view of the fact that the submission was 2 incomplete, we did not feel it was appropriate to initiate that 3 formal process.

4 Q Did you do anything with respect to reviewing the 5 plan or providing technical assistance?

6 A (Thomas) Yes, we did.

7 Q What was that?

8 A / Thomas) We did accept the plans for review, and we 9 did provide a review of the plans. Additional documents were 10 submitted by the State after May, and we did provide review 11 comments on both the local and the State plans.

12 Q Lid the RAC have any part in this process beginning

, 13 in May of '83?

14 A (Thomas) Sure. The RAC had --

15 Q What was that?

16 A (Thomas) RAC had the usual review responsibilities 17 that it has with respect to emergency response plans.

18 They -- we did, in e collegial way, we went through the A 19 through P elemente of NUREG-0654 e.nd did a review of the plans 20 against the A through P elements.

21 Q And did you furnish that information ta the F+. ate of 22 New Hampshire?

23 A (Thomas) Yes. we did.

24 Q Can you charact9rize generally the pr,gress that was 25 made by New Hampshire in developing a plan in '83 and '84, O Heritage Reporting Cory cation (202) 628-4888

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THOMAS.- DIRECTE 13405 1 those two years?

2 A (Thomas) The plans that were submitted in 1983 3 needed a great deal of work. And we so informed the State and 4 tried to work with them on an informal basis to' explain what 5 was the problems with the plans. And they~ began to make 6 considerable progress. Mr. Strome and I had private meetings, 7 and we had a series of additional meetings and the State began 8 to make considerable' progress moving forward in preparing 9 plans.

10 Q By late '84, early '85-what steps, if any, were you 11 taking to try to move along the process of development of this-12 plan by the State _of New Hampshire?

13 A (Thomas) In 1983 it occurred to me that both States, O 14 both Massachusetts and New Hampshire were not making the 15 progress at the rate and of the quality that we and the NRC 16 felt was necessary in order to meet our goal of having 17 emergency preparedness plans in place which weald not delay the ,

18 licensing of Seabrook.

19 And therefore I devised what I called "coordinatiors 20 meetings," and we held about 25 of them during the period 1983 2 21 through early 1986. These meetings involved the two States, 22 Massachusetts and New Hampshire, the utility, ourselves, and 23 sometim( s the NRC, and provided a forum whereby we could learn-24 of the St(te progress, where we could explain to the States 25 what would be expected of them, give us an opportunity to bring i O Heritage R7 porting Corporation (202) 628-4888

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THOMAS - DIRECT 13406 1 in guest speakers such as our regional counsel, Brian Cassidy.

2 Attorney Turk, Attorney Dignan, to talk about what was going on 3 at'some of the other Licensing hearings, so that the States 4 would know what special problems they should be: focusing on.

5 Special-issues that were coming up in other Licensing hearings.

6 Attorney Flynn.was a guest speaker ence describing what.he had 7 run into at one of the Licensing re.urings and suggesting that 8 the States pay special attention to those issues since we know 9 that they had come up elsewhere.

10 Q There 's been a lot of time spent in this hearing 11 discussing the ro1e of the RAC in connection with this proj ect.

12 Let me just ask you at this point, in you view as the Chair of 13 the RAC for about seven years in this region, in terms of  ;

O 14 technical assistance and in terms of evaluating emergency 15 response plans for nuclear facilities, what 's been your view of 16 the appropriate role the RAC plans vis-a-vise FEMA 7 17 A (Thomas) The role of the RAC is set forth in our 18 regulations, and perhaps has been expanded upon in practice.

19 The primary role of the RAC is to give FEMA advice in their 20 area of expertise, focusing on the A through P standards in l 21 Part 2 of NUREG-0654.

l

! 22 In addition, we use individual members or the RAC as 4

l 1

] 23 a whole to devise special technical assistance documents or to I )

24 have special meetings with the States, co address various 25 e.nergency preparedness planning issues.

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THOMAS - DIRECT 13407 1 It 's really a twofold role. One is to assist FEMA, 2 encourage th3 States in developing proper emergency 3 preparedness plans, to give them technical guidance. And then, 4 the secor.d part of the role is to evaluate those plans against 5 the A through P standards in NUREG-0654.

6 Q Has the RAC historically, at least in this region, 7 been involved in making a finding or a recommendation of 8- whether reasonable assurance exists in connection with a-9 particular plan?

10 A (Thomas) The RAC will be, in my region, has always 11 been given -- excuse me, has generally and frequently been 12 given an opportunity to comment on whether or not there is a 13 reasonable assurance, an-1 that is done by sending them draft O 14 copies of exercise reports which is -- always contains a bottom 15 line of whether or not there 's a reasonable assurance of an 16 adequate level of public safety.

17 #e talked about what a deficiency was when we prepare.

18 exercise reports. We talked about what a deficiency was some 19 time ago in my testimony, and when we prepare exercise reports 20 we categorize events that happen, can 't happen in exercises as 21 to whether or not they 're a deficiency, and if they 're a 22 deficiency it 's an impediment to a finding of reasonable 23 assurance.

24 And it has been my practice to always get RAC input 25 on that before FEMA makes a decision. And we will often also +

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THOMAS - DIRECT 13408 j

1 send out reports that FEMA has initiated such as the Pilgrim l l

2 Report,-the self-initiated review on Pilgrim which is a FEMA

, f

. 3 document, it was circulated to the RAC for their-input and

4 comment on the issue of reasonable assurance. l I

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t/4 1 Q Have you tended to involve the RAC in issues of 2 reasonable assurance, solely in terms of plan review leaving 3 aside exercise events?

4 A (Thomas) No, to the contrary. We always -- pardon 5 me, during my chairmanship we have tried to involve the RAC in 6 getting their input. I value their advice very, very highly. ,

7 and I like to get their input on exercise issues as well.

8 Q I don't think you understood my question.

9 A CThomas) I 'm sorry.

10 Q The question is, have you involved the RAC in issues 11 of reasonable assurance solely in connection with plan review, 12 leaving aside exercises?

[]}

13 A CThomas) I 'm sorry, I don 't --  ;

14 Q When the RAC has reviewed a plan, as it reviewed for 15 years the New Hampshire plan, you 've talked about matching 16 NUREG criteria and valuing the RAC 's opinion there, has the ,

i 17 process in the RAC been carried further, short of the exercise, i

18 to seek the RAC 's guidance as to whether there 's reasonable

]

19 assurance solely in connection with the plan review?

20 A (Thomas) Thank you,.now I understand your question. I 21 The answer to your question is, no, it has not except on very ,

i 22 rare occasions, and I cited the Pilgrim self-initiated review I 23 done by FEMA which addressed really planning issues. Some 24 exercise issues as well..but primarily planning issues. And I

() 25 the RAC was involved in that reasonable assurance finding.

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d THOMAS - DIRECT 13410

({)

1 On the other hand, we have done responses to 2.206 2 petitions to the NRC. The NRC will ask FEMA to address a 3 particular offsite emergency preparedness element in the 4 context of a 2.206 petition, and in those cases the RAC is 5 typically not involved or involved only to the extent that we 6 feel' it 's within the area of one of the member 's expertise and 7 we will just bounce some ideas of them.

8 Q And when you talk about a finding of reasonable 9 assurance at the regional level, are you speaking essentially 10 of a recommendation that the region makes to Washington?

11 A (Thomas) Now we would be. Up until eitner early 12 1988 or late 1987 the Regional Director had the authority and Y

() 13 responsibility to make interim findings of reasonable i

14 assurance; and we did make those as a practice, and the RAC was 15 typically not involved in those interim findings.

16 MR. OLESKEY: Your Honor, could I have a very brief 17 break?

18 JUDGE SMITH: Sure. Let 's take our morning break, 10 i

19 minutes please.

20 (Whereupon, a 10 minute break was taken.)

21 JUEGE SMITH: It 's been brought to my attention there ,

22 was not an expressed formal ruling on Mass. AG Exhibit 48, 23 there was j ust an overruling of an obj ection. Is that your 24 understanding or --

25 MR. OLESK3Y: I think that perhaps is right, and

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() THOMAS - DIRECT' 13411 1 let 's take care of that now by my formally of fering the-2 document in accord with our earlier colloquy. e 3 JUDGE SMITH: You -- we 're ending up again with a 4 document that has a lot of extraneous material in it, partly 5 because we have not enforced a discipline of-requiring the 6 parties to clean out extraneous material, and another pathetiu 7 attempt to do that.

8 You talk to Mr. Dignan and you agree upon throwing -

9 Junk out of here.

10 MR. OLESKEY: Sure.

11 JUDGE SMITH: We don't need the Three Mile Island EPZ 12 in this hearing at all.

-( ) 13 MR. OLESKEY: Well, I 'd originally of fered a 14 limited --

15 JUDGE SMITH: I know. Mr. Dignan wanted it all in.

16 MR. OLESKEY: Yes.

17 JUDGE SMITH: But you can 't have it all . Mr. Dignan.

18 You arrive at some agreement.

19 MR. OLESKEY: Okay. I 'm not going to have --

20 MR. DIGNAN: Your Honor, the request for the entire 21 thing is not just to make life dif ficult, the request for the i 22 entire thing is to put that docunent in context.

23 JUDGE SMITH: All right. The Three Mile emergency 24 planning zone does not add to the context, and we don 't want to  ;

25 read through a lot of extraneous material or even carry it I O t Heritage Reporting Corporation l (202) 628-4888 j t

THOMAS - DIRECT 13412

(])

i around.

2- MR. DIGNAN: Well, that 's my point. What the 3 document is, is a survey documer.t at 10 sites; and it 's not 4 even relevant to Seabrook.- But if . it 's ' going to be in. I think 5 I have a right to make it clear what its. context is.

6 JUDGE SMITH: You don 't have a right to put in j unk.

7 And it 'm telling you, get together with Mr. Oleskey and work it 8 out.

9 MR. DIGNAN: Yes. Your Honor.

10 MR. TURK : Your Honor, let me note two procedural 11 things, if I may.- One. I passed out to - the -- I 've given to i

12 Chairman Smith copies -- the original notes of conversations I

() 13 have had with various individuals, either directly with Mr.

! 14 Thomas or with other people concerning conversations they have 4

15 had with Mr. Thomas.

16 And I 've asked Judge Smith to review them to 17 determine whether any or all or what portions of those 18 documents may be withheld as mental impressions of attorney 19 work product.

20 JUDGE SMITH: We tried to do that just before we 21 began, it 's going to take some time.

22 MR. TURK: Yes. And I note that there 's one document 1

23 in particular which I had discussed back in Deceaber, my notEJ  !

24 of July 31st, a conversation I had with Dr. Boris, which 25 reflects the answers given to particular questions I asked Dr.

()

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THONMS - DIRECT 13413 1 Boris concerning the RAC meeting; that 's one of those 2 documents.

3 Also, let me at this time distribute to the parties 4 the copy of the draft or the proposed testimony of Thomas 5 McKenna.

6 (Pause) 7 JUDGE SMITH: Mr. Dignan, if after you have looked at '

8 the document, and after you talk to Mr. Oleskey and still in 9 good conscience you could not agree to the deletion of any of 10 it, we 'll accept that. It just seems to be on the face of it 11 there 's too much detail about other plants cluttering up the 12 record, and the fact that we have not consistently requested

(])

13 that in the past is just that, an inconsistency, but we want it 14 on this one.

15 MR. DIGNAN: I 'm confident that with your 16 observations in mind Mr. Oleskey and I can reach an agreement 17 that will cut it down. Your Honor.

18 BY MR. OLESKEY:

19 Q Mr. Thomas, we were at the end of 1984 1985 let me 20 ask you this, did there come a time in that period when the RAC 1

21 was involved not only with evaluation and technical assistance 22 of the New Hampshire plant for Seabrook, but also a plan for a 23 facility called Maine Yankee in Maine?

24 A (Thomas) Yes.  ;

() 25 Q Were there any considerations in terms of planning i

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() THOMAS - DIRECT 13414 i issues tnat were common to both plants that became a focus of 2 discussion at the RAC?

3 A (Thomas) I don't believe that we ever had a meeting 4 in the RAC where anyone said that there were -- used the word i 5 "common" or considered them as being common issues.  ;

6 Q I 'm aly asking you if, in substance, at about the 7 same time common planning issues arose for FEMA and the.RAC 8 concerning these two f acilities and the plans for emergency 9 evacuation there?

10 MR. TURK: Your Honor. I 'm going to obj ect on grounds 11 of relevance. Whatever may be Massachusetts 's interest in 12 Pilgrim, it 's not relevant to Seabrook unless they can

(])

13 demonstrate that.

14 MR. OLESKE's : I don 't think Mr. Turk means what he 15 says, I haven 't mentioned Pilgrim. I 've asked the question i 16 about parallel considerations of similar planning issues at I 17 Maine Yankee in Maine and at Seabrook  !

18 MR. TURK: I excuse myself. Your Honor, the same 19 comment applies to Maine Yankee.

20 JUDGE SMITH: What is the relevance?  :

21 MR. OLESKEY: I'm trying to elicit whether there were j 22 certain common issues between the two plants that were dealt 23 with at keine Yankee that effected the way tne RAC looked at 24 Seabrook thereafter, because at had the experience at Maine

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THOMAS - DIRECT 13415

(]) ,

i evolution of the RAC 's thir. Ring and FEMA 's evaluation of the ,

2 plan with the RAC.

3 JUDGE SMITH: Just as, for example, they 're ,

4 determinations in this case neuld affect policy --

l 5 MR. OLESKEY: I; we were in that subsequent case, 6 that would be right.

7 JUDGE SMITH: Do you persist in -your obj ection? f 8 MR. TURK: As it affects Seabrook plant, no.  ;

9 JUDGE SMITH: All right. You withdrew it.  :

i 10 MR. OLESKEY: Excuse ne. ,

11 JUDGE SMITH: He withdrew his obj ection, if I 12 understand it.

() 13 BY MR. OLESKEY:

14 Q Let me sharpen it for you, Mr. Thomas, at this time '

i 15- in late '84, early 1985 were there discussions at the RAC and 16 in the FEMA Region in connection with evaluating the plan for 17 Maine Yankee about the so-called ETEs?  ;

18 A (Thomas) There were discussions at FEMA that {

19 involved one RAC member; there were not general discussions in [

20 the RAC on this issue. .i 21 Q Was FEMA involved with the consideration of the ETE l 22 issue st Maine Yankee in late '84, early '85?

23 A (Thomas) Yes.

74 Q And in brief what was that issue? i 25 A (Thomas) The issue was simple. Again, this was an

() '

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1 issue that had been referred to us by the NRC pursuant to's 2 2.206 petition, and the issue was whether or not alleged

, 3 impediments to the evacuation time -- I 'm sorry, alleged, not 4 impediments but rather the length of the evacuation times on 5 Route 27 which leads from Booth Bay, Booth Bay Harbor in that i

6 area were such that they would impact on a finding of 7 reasonable assurance.

8 FEMA indicated that based on our preliminary analysis 9 that those evacuation time estimates were extremely sensitive 10 to the population count, that the petitioner, the 2.206 il petitioner had filed an estimate of population which was at 12 variance with the State estimate and in turn both of those

(]) 13 estiraates were at variance with what the utility was saying.

14 And that we really didn't know what the evacuation times were  :

15 for that area, and therefore could not determine whether or not 16 the length of the evacuation time estimate would impact on a 17 finding of reasonable assurance.

18 Q As a matter of process at FEMA what kind of 19 information was evaluated in dealing with that issue 20 thereafter?

)

21 4R. TURK : Your Honor --

22 JUDGE SMITH: You mean site specific information?

l 23 MR. OLESKEY: The kinds of planning consideration 24 which obviously toucg on site specific issues that were dealt  ;

and 25 with at the regionAin Washington to dispose cf this issue about l

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O THOMAS - DIRECT 13417 1 ETEs there, right in the middle of this evaluation of the 2 Seabrook proj ect; that 's the question.

3 MR. TURK: Your Honor. I 'm going to obj ect. to the 4 question. I'm going to move to strike the prior question and ,

5 answer. I withdrew my obj ection based upon my understanding 6 that this was somehow going to elicit an answer as to how Maine 7 Yankee 's various ETE f actors may have af fected the 8 consideration of Seabrook. I didn 't hear that, and I think 9 that it 's irrelevant. The whole question and answer should be 10 stricken.

I 11 JUDGE SMITH: That 's right. How did that come out, 12 you know, we need the nexus.

(])

l 13 MR. OLESKEY: I was going to ask him the first i

14 question which was, what was the issue? The second question 15 was, what 's the Kind of information you look for? And the 16 third question is, how did that affect the thinking of the 17 agency about Seabrook? It 's a sequence.

18 JUDGE SMITH: All right. If you 're going to go 19 there, okay. But I think that you're using a lot of your 20 precious time here that is not going to be all that helpful to 21 you.

22 May I suggest, and I 'm going to get protests, but it 23 is very unlikely that you're gole.g to be having a strong 24 influence on Mr. Thones's recall, judgment, everything else by

() 25 leading ques'. ions. I'm going to ask you to go a little more 1

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THOMAS - DIRECT 13418 1 direct even if it requires leading to get your answers out.

2 MR. OLESKEY: That 's certainly helpful.

3 JUDGE SMITH: I - don 't think that he 's amenable --

4 he 's a witness who is amenable to suggestion on these things.

5 MR. OLESKEY: Fine.

6 JUDGE SMITH: All right, go ahead.

7 BY MR. OLESKEY:

8 Q Let me try it this way, Mr. Thomas. Can you tell us 9 what aspects there were-of that evaluation of this issue about 10 ETEs raised at this facility in Maine that affected your 11 thinking and your agency 's thinking about evaluation of the

(]) 12 similar ETE issue at Seabrook, which you were then reviewing?

13 A (Thomas) Okay. There are two very different~

14 situations, but the commonality is, in my opinion and.as I 4

15 understood my agency 's opinion, was that.the length of the-16 -vacuation time and the nature of the evacuation time, and by 17 that what I mean is, whether or not the people would be stuck 18 in what we call Category F traffic which is essentially stop-19 and-go traffic extended periods of time with no forward 20 progress. That issue of the length and the type of situation 1

21 that the drivers would be going through was considered at Maine 22 Yankee to directly impact on our consideration of whether or 23 not there was a reasonable assurance and adequate level of

24 public safety.

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THOMAS - DIRECT 1 part of my thinking with respect to Seabrook by thinking that 2 the length and the nature of the evacuation times at Seabrook 3 would also impact on our agency 's finding of reasonable 4 assurance.

5 Q Now let me ask, if in 1985 there were discussions 6 with the NRC and the utility about the nature of the 7 containment at Seabrook and the effect that that containment 8 had on or should have on FEMA 's evaluation of the New Hampshire I

9 plan for Seabrook emergencies?

10 A (Thomas) In this context, from time to time when we 11 would meet with the -- primarily .vhen we would neet with the 12 utility, to some extent when we would meet with the State, and

() 13 we would have a difficult issue of emergency preparedness 14 planning, the number of bus drivers that would be needed, the 15 number of buses that would be needed, the number of personnel 16 that would be needed. There would be an indication from l

17 utility personnel, to some extent f rom State person'.el, that 18 they really didn't need to do all of these things with respect 19 to meeting the A through P standards NUREG-0654 because l

20 Seabrook was special and that it had this huge double 21 containment, and the probability of an accident was reduced and 22 the nature of the accident was attenuated in that there would-23 be a longer time until there was a release, a different time 24 than what is indicated in NUREG-0654. And that when there was  !

25 a release at the end of that period of time the release.would

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1 be of much lesser magnitude than the standard plants around the 2 country.

3 Q Did either the utility or the NRC provide FEMA with 4 technical information supporting that kind-of analysis in 1985 5 or '867 6 A (Thomas) In 1985 we received briefings from the 7 utility that were technical, to me at least, on the nature of 8 the containment and the reason that Seabrook instead of having 9 a release that would take place in as little as a half an hour, 10 the earliest possible time for the release was two and a half 11 hours; and that was explained in technical terms to me.

12 And let me explain what I mean by technical terms is

(]) 13 that I didn't understand them. I mean, it went beyond my 14 capacity to understand what they were saying. So to that 15 extent it was technical, it wasn't a highly technical 16 probabilistic risk assessment or something like that. But it 17 satisfied me.that they -- that the utility seemed to feel that 18 they were entitled to special treatment and special 19 consideration. Certainly the State echoed that concern, and 20 occasionally the NRC would also echo that concern.

4 21 Q Were those representations important to you in terms 22 of your analysis of the New Hampshire plan? t 23 A (Thonas) They were important to me in that I was 24 concerned many times during the period at '85 and early '86 25 that we had to go down one or two paths; either we used the

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1 standard documents,- NUREG-0654 which sets forth the parameters j 2 of emergency preparedness planning in Part 1, and follow-along ,

i 3 with the A through P standards in the usual nature of-release, ,

4 thefusual time to release or it had to be established that j 5 Seabrook was entitled to special treatment.

6 And it seemed that we weren't really quite doinn 7 either. That the utility was claiming tr.at it was entitled to 8 special treatment, and it wasn't coming forward and 9 demonstrating that in a way that could be recognized by FEMA 10 and the RAC.  :

11 Q What did you do in an effort to have the utility or f 12 the NRC or the State, for that matter, provide technical f

(]) 13 information to FEMA about the containment that FEMA could rely 14 upon in this analysis it was making of the New Hampshire plan?

15 A (Thomas) Let me emphasize, it wasn 't so much that I {

16 was looking to have information supplied to FEMA, I was willing  ;

17 to -- I suggested several alternative ways of the information 18 being provided into the process of our evaluation.

19 The idea always, of course, would be that the NRC as 20 the cognizant agency would evaluate this material. It was 21 totally beyond FEMA 's technical capacity to evaluate the ,

22 probabilistic risk study or a study on the nature of a release 23 at Seabrook.

24 With that in mind, we had several meetings with State 25 personnel, with the utility in 1985 and early 1986 in essence a

()

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() THOMAS - DIRECT 13422 1 saying, look, if you don't establish in the appropriate way 2 that Seabrook is entitled to special consideration it will not 3 be given special consideration in our analysis of the emergency 4 preparedness plans. And part of our analysis of the emergency 5 preparedness plans will include an evaluation of the times and 6 the nature of the evacuation -- the evacuation; and that is an 7 important component of our finding of reasoneble assurance.

8 If you don't establish that you're entitled to 9 special treatment, we won 't give it to you, and that may very 10 well impact on our finding of reasonable assurance.

11 Q Was there a time in December of 1985 where you 12 discussed these considerations directly with an of ficial of the

(]) 13 Public Service of New Hampshire?

14 A (Thomas) Yes, there was.

15 Q Can you detail briefly that discussion?

16 A (Thomas) Yes. The meeting was with myself and my 17 supervisor. Henry Vickers, with Edward Brown, the president of 18 what became the New Hampshire Yankee organization, if it wasn 't 19 then it was either New Hampshire Yankee or its predecessor. 1 1

20 And basically we went through that as a matter of 21 administrative practice which had been drilled into my head 22 really since I started working for the government in 1969 that i

23 agencies when they reached conclusions and made determinations l 24 on a proj ect or whatever could only look at what was in their 25 record, and that was in front of me, established record. And Heritage Reporting Corporation l C202) 628-4888 l

THOMAS - DIRECT 13423

])

1 we didn't have an established record with respect to this two ,

2 and a half hours would be the earliest release possible at 3 Seabrook; and therefore we would not take it into account. And-4 if the utility wanted that taken into account that.there were ,

5 certain procedures that had to be followed, and we laid out 6 three possible ways that they could get that introduced into 7 our process of consideration.

8 JUDGE SMITH: Mr. Thomas, are you being distracted by ,

9 the microphone and the media? If that becomes a problem --

a 10 THE WITNESS: CThomas) It 's j ust when they move 11 things around over here. It 's not really distracting, no, sir.  ;

i 12 Thank you for asking.  ;

() 13 BY MR. OLESXEY:

14 Q What did -- who was it that you met with from the New 15 Hampshire Yankee organization?

16 A (Thomas) Edward A; Brown.  !

17 Did he tell you -- what did he tell you about what  !

Q 18 the utility could do in connection with these assurances you 19 said might mean that FEMA could treat the plan evaluation in a 20 way that was other than straight evaluation under the criteria j l

21 in NUREG-0654?

22 A (Thomas) I 'm troubled by two aspects of your 23 question.  ;

1 24 Q Only two? Go ahead. I'll clarify whatever you want.

25 A CThomas) Assurances --

(:) l i

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THOMAS - DIRECT 13424

-({}

1 Q Let me -- what did Brown say?

2 MR. DIGNAN: A good one.

3 THE WITNESS: (Thomas) I, of course, don 't remember 4 everything he said, but that.the bottom line was-that he 5 understood'that, yes, regulatory agencies or federal agencies 6 could only look at what was in that record, that was certainly 7- clear to him. That he understood our concern and that he was 8 going to go over forthwith and meet with his attorneys and that 9 this -- he described this as being the highest possible 10 prioritu of his organization at that time to make sure that 11 this was introduced into the record in such a way ao FEMA could I l

12 consider it, because he realized it was an important part of l

() 13 our thinking with respect to the -- to our regulatory standard 14 of reasonable assurance. l 15 BY MR. OLESKEY:

16 Q At that time in late '85 what were the ETEs that FEMA 1

l 17 was generally considering as applicable to evacuation of the 1

18 beach population at Seabrook?

l 19 A (Thocas) To the best of my recollection, in 1985 we 20 still did not have what we considered to be a.n adequate l 21 evacuation time estimate in hand. As I indicated, we had REP-3 '

l 22 which had some indication of a possible range. We had a 23 document -- a NUREG document, I 'm j ust sorry I 'm drawing a 24 blank on the nunber, that was authored by Dr. Thomas Urbanik, 25 that indicated the times up to 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> if the evacuation was

()

I Heritage Reporting Corporation l (202) 628-4888

ll) THOMAS - DIRECT 13425 1 uncontrolled.

2 We had a document that had been litigated in the 3 onsite portion of the hearing. And we had some preliminary 4 estimates that ere part of the -- what became the New 5 Hampshire plan so. '9sion. I 'm not sure when the State sent 6 that i n, but that was certainly not earlier than late December .

l 7 1985.

So we had a number of different things, none of which 8 FEMA considered to be authoritative in terms of really nailing 9 this down with respect to the whole EPZ or certainly with JO respect to the beach population. We really didn 't know at that 11 point.

12 Q Well, with respect to the discussion that you say the lh) 13 utility was having at this time, there might be two and a half 14 hours before there was a major release af f ecting the beach. do 15 you have any recollection of the nature by comparison of the 16 ETEs for the beach population?

17 A (Thomas) Again, we didn 't have a -- what we 18 considered an authoritative evaluation of the ETE for the beach 19 population, but it was our sense at that time or my sense. I 20 should say, and I really don 't recall where I derived that 21 sense from, conversations or just a guesstimate of my own, that 22 we were talking about clearing the beaches in three to four 23 hours. And if you have two and a half hours to a release, and 24 you have some period of travel time for a release, that meant 25 with good sharp emergency preparedness planning you could make O

Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT -13426-( (])

1 tremendous difference in the dose consequences for the public.

2 So it was a great importance if in fact there is two 3 and a half hours to the release. The earliest possible 4 release, as is indicated in some of the documents we were 5 getting from Public Service of New Hampshire, that would have a 6 profound impact on our thinking at that time.

7 Q Following up this conversation with Ed Brown from New 8 Hampshire Yankee, was there a subsequent meeting in December of 9 '85 wit

• yourself. Brown, and Tom Dignan?

10 A CThomas) No, sir. There was --

11 Q All right. With Mr. Quinn, one of Mr. - Brown 's

?

12 subordinates. Mr. Dignan and yourself?

(]) 13 A (Thomas) Thai is correci.

14 Q And was that a followup meeting to the one you 've 15 just been describing?

16 A (Thomas) Yes, it was.

17 Q What was the substance of what was said at that 18 meeting, this later meeting?

19 A (Thomas) The substance was, in essence. I explained 20 what FEMA 's concerns were under our regulations, and Attorney 21 Dignan indicated that he felt that an attempt to introduce a 22 probabilistic risk study or otherwise support special treatment 23 for the nature of the release at Seabrook would lead to 24 litigation which, as I recall he said, would . '

two years.

25 And that he felt that with respect to the NRC regulations there O

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u

() . THOMAS - DIRECT 13427 1 was no need for Seabrook to establish that it needed special 2 treatment; and therefore it was going to be his recommendation 3 that they not go forward with any attempt to introduce whatever 4 documents were necessary to prove that there was two and a half 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> to an early release at Seabrook. That was my 6 understanding of the conversation.

7 Q All right. Now, during this exact same period 6 December of 1985 do you recall that New Hampshire submitted 9 another revision of the plan for Seabrook to FEMA, Revision 07 10 A CThomas) Yes, I do recall that.

11 Q And did that submittal together with the issues that 12 you 've been describing to the Board about the containment and l

13 the releases prompt some discussion between FEMA and the NRC

(])

14 about how the process of evaluating the plan should go forward? l 1

15 A (Thomas) Yes, it did, with respect to -- not to 16 evaluating the plans. Of course, I don't remember the 17 specifics, but of course we would have had conversations with 18 the NRC RAC representatives, talking about the plan reviews in 19 general.

20 I also had discussions with Dr. Ronald Bellamy about 21 some special attention being given to the beach population at 22 Seabrook. Those discussions were in -- probably had started i 23 earlier than this, but became more focused in mid to the end of 24 December 1985. And as I understood the discussions. Dr.

25 Bellamy was telling me that in essence my concern that I was

()

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THOMAS - DIRECT 13428

({)

1 articulating was that there'was, you know, we 're looking at a 2 spectrum of accidents at Seabrook, a release that could take 3 place as early as a half an hour, and it 's described as a, 4 quote, "serious release" in NUREG-0654.

5 And what I understood him to be saying was that, in 6 fact, a serious release in terms of it really having health 7 consequences would take a minimum of two to three hours, 8 according to the standard NRC documents. And that in fact the 9 release that would take only half an hour would be a very minor 10 release.

11 And as I understood the discussion, the release would 12 be so minor that it would not even exceed the Environmental

() 13 Protection Agency protective action guides which are used as a 14 means, not evaluating the plans, but of determining -- the 15 State determining whether or not there will be an evacuation or 1

16 not; it helps them reach their protective action l 17 decisionmaking.

18 And if you have a release that 's not even going to 19 exceed the protective action guides, by definition there 's no l

20 overwhelming need to have an evacuation. It helped us 21 understand the nature of this early, fast-breaking release.

22 And again, we seemed to be getting to having two and a half or 23 perhaps three hours to evaluate people prior to their being a 24 maj or release, and that as very, very important considering 25 our analysis of the beach population in terms of our finding a O

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(,w) THONMS - DIRECT 13429 1 reasonable assurance.

2 Q Dr. Bellamy was at that time in the NRC Region 1?

3 A (Thomas) Yes, he was.

4 Q In some kind of supervisory position?

5 A (Thomas) He, in essence, was the supervisor of the 6 RAC members.

7 Q Did you --

8 A (Thomas) I 'm sorry, of the NRC RAC representatives 9 or RAC members.

10 Q Did you tell him in substance you 'd like to have 11 these views f rom his agency in writ'.ng?

12 A (Thomas) In substance, yes. I said, well, gee, this

(]) 13 does help take away a substantial concern that I 'm having with 14 respect to the Seabrook plens and let 's figure out a way to get 15 this written down in a way that FEMA can recognize it and rely 16 upon it and go forward.

17 Q And what did he say in response?

18 A (Thomas) We batted around how best to achieve that 19 obj ect ive. And as I recall the conversations, I was asking him 20 to have the NRC send us a memo. And finally he said, well, 21 look, if you want us to send you a memo you write one in and ,

l 22 we 'l l respond. l 23 Q And did you proceed with others in the agency to 1

24 draft what became your memo of December 31, 1985 which is in ]

25 evidence? l CE) i Heritage Reporting Corporati'on l (202) 628-4888 i

1 THOMAS - DIRECT 13430

(])

1 A (Thomas) I did. I basically drafted it myself with 2 the input from the FEMA Office of General Counsel and my 1 3 counterparts in Washington, specifically Mr. Robert Wilkerson.

4 Q That is, they looked at it and made comments about 5 it?

j 6 A (Thomas) . They looked at it and they did have 7 comments on it, but I can 't say that I developed it in.

8 conj unction with them, it was primarily my work product with 9 their comments on it.

10 Q Did they tell you it was okay eventually, to go ahead 11 and send it?

12 A (Thomas) Yes, they did. It specifically was

() 13 approved by Spence Perry and by Bob Wilkerson.

14 Q And what was -- strike that. Did you have a view 15 whether FEMA could make a reasonable assurance finding prior to 16 receiving this technical assurance from the NRC7 17 A (Thomas) I don 't know if I -- well, I knew that we 18 were in no position to make a reasonable assurance finding at 19 that point because we hadn't even reviewed the New Hampshire 20 plans and the plans were incomplete. So we were nowhere near 21 making a reasonable assurance finding at that point.

22 What -- my December '85 memo was actually written

, 23 with an idea towards focusing RAC attention on the beach issue, 24 pardon me, so that we could assist the State in the development 25 of plans. It was a design to elicit a technical assistance ,

()  !

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l

THOMAS - DIRECT 13431

(])

1 support from the RAC for New Hampshire to see if, again. .the 2 NRC was -- as I understood it, was going to be telling us that -

3 there was essentially a benign release that would be an early 4 release. And then we would look at ways of really trimming 5 down the evacuation times for the beach population so that we 6 would be able to say with respect to that population at a later 7 date that, yes, there was a reasonable assurance of an adequate 8 level of public safety.

9 0 Well, as I've understood your testimony the principal 10 recipient of the memo was the NRC. not every other agency 11 represented in the RAC because it came out of these discussions

• 4 12 with Dr. Bellamy and the utility, which you 've been describing; isn't that right?

(]) 13 14 A (Thomas) Well, certainly the driving force behind it 15 was conversations with the NRC. but I really can't agree that 16 they were the principal recipient because there were two parts i '

17 to what we had in mind. One was to establish that we had a 2 18 little bit more time than we thought we had before there was a 19 serious release.

20 And the second part was to get input from the RAC 21 members in how we could specifically improve the plans in such 22 a way as to make them the best possible with respect to the 23 beaches. So we were trying to do two things.

24 Q And that little more time was the difference between 25 a half hour and two and a half hours; right?

O

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THOMAS - DIRECT 13432

-({}

1 A (Thomas)- Two and a half to three hours,uns I 1

2 understood the conversation; yes, sir.

3 Q There are some documents in evidence that appear to 4 be responses f rom RAC members in early 1986, members other than 5 the NRC, to your memorandum of December 31, 1985, Mass.

6 Attorney General Exhibits 26, 28, 29. Mr. Lutz, Mr. Church, Mr.

7 Oleson; are you f amiliar with those responses?

8 A (Thomas) I 'm f amiliar with the response f rom Mr.

9 Lutz and Mr. Church. There is a response also from the U.S.

10 Department of Agriculture. And let me clarify, Mr. Oleson was 11 not specifically a member of the RAC; he is a member o f what 12 FEMA called the REP task force, he is FEMA staff. ,

i 13

(]) Q Or was at that time?

14 A (Thomas) He was at that time, yes. I 15 Q And in substance, what kind of responses did you get 16 f rom these RAC members in early '86, as they'affected your 17 thinking about the evolution of this review?

i 18 A (Thomas) What I understood in substance we were j 19 getting was that, at least a couple of the members thought that 20 this was a real problem that needed to be looked at. There was 21 some suggestions made on ways that we could deal with it in 22 terms of early closing of the beaches at the alert level; 23 things that were later implemented in fact from the plans.

24 That 's about all that strikes me right now. The responses do 25 speak for themselves. l

()

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f" THOMAS - DIRECT 13433 V) 1 Q All right. Now, Mr. Oleson's responae which we marked 2 as Exhibit Mass. AG 29 was from somebody in your own agency 3 you 've indicated?

4 A (Thomas) That 's correct. It was.-- at one of the-5 RAC meetings that we held in 1986 RAC member- Byron Keene of the 6 Environmental Protection Agency indicated that he essentially 7 concurred in Mr. Oleson 's analysis, and to that extent perhaps 8 it 's a j oint - response, but Byron never agreed to it line by j

'T 9 line or anything like that; he said he agreed with the 10 reasoning and the results of what Fred Oleson said. j 11 Q All right.

f 12 JUDGE SMITH: My notes show that would be Exhibit 28.

13 MR. OLESKEY:

(]) We 'l l take a look at the actual exhibit 14 copy we have. Your Honor. .

1 15 MR. TURK: Your Honor, I have that also. I would 1

.i 16 note that the Department of Agriculture document was Exhibit 17 27, not referred to by Mr. Oleskey.

18 JUDGE SMITH: That doesn't require any -- it clearly 19 has a --

20 MR. OLESKEY: I mischaracterized it, it is 26 and the 21 Church memo is 29. Thank you. l:

2

. 22 BY MR. OLESKEY:

23 Q Did the Oleson memo deal with containment as a 24 consideration?

, 25 A (Thomas) Yes.

! ()

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l THOMAS - DIRECT 13434

(]J 1 Q And did he have a background in that area?

2 A (Thomas) -He was our reg.onal health physicist and 3 had been involved in physics and nuclear powerplants for some.  ;

4 30 years at one level or another. He was.certainly our 5 regional expert on the inner operations of a nuclear s

6 powerplant.

7 Q As you understood what he was telling you from that 8 background in answer to your memo, what was it?

9 A (Thomas) Bas.ical l y , don 't worry. about the Seabrook 10 beach population, Seabrook is special, it 's got this huge 11 containment, they 've established that in a document, a 12 probabilistic risk study and I just really shouldn't worry

() 13 about that population because of the special containment.

14 Q After that memo did he -- did Oleson play any further 15 part in the RAC 's process or in FEMA 's evaluation?

16 A (Thonas) Intermittently, yes. I don't really recall 17 when Fred retired, I believe it was in 1986. He has since been 18 brought back on board as a consultant working for the Argonne 19 National Laboratory. So he plays an ongoing role and is 20 involved in Seabrook on to this day, i

21 Q Did the NRC provide any response in 1986 to your 2

22 memo?

23 A (Thomas) No written response, no.

l 24 Q Thank you. I 25 Did you have a discussion with Mr. Quinn of New O

i Heritage Reporting Corporation (202) 628-4888 -

THOMAS - DIRECT /13435

((}

i Hampshire Yankee af ter your memo went out about the utility 's 2 view of what you 'd' said in that December 31 1985 memorandum to 3 the RAC?

4 A (Thomas) I had a discussion with Mr. Quinn about 5 what he said was his view, let 's say he put it in the pronoun 6 "I " yes.

7 Q What was the substance of that discussion?

8 A (Thomas) In essence, that he said, quote: "I didn't 9 like. " I 'm paraphrasing, it 's my best recollection of the 10 quote: "I didn 't like parts of your December 31st memo."

11 Q And that was the substance of what he and you said on I

12 that subj ect ?

() 13 A (Thomas) That was about it. And I said. I 'm sorry.

14 and that was it.

15 Q At this same period did Mr. Quinn request of you on 16 behalf of the RAC certain information about what was going on 17 in the RAC 's evaluation?

18 A (Thones) Yes. He requested copies of certain 19 documents, transmittal memos to the RAC and RAC responses.

20 Q And what reply did you make to him?

21 A (Thomas) After consulting with my Washington office 22 I responded that we would give him a copy of our -- we had 23 already given him a copy of the December 31st memo to the RAC j 24 and we would give him a copy of our transmittal memo, giving 25 the plan or giving copies of the plans. New Hampshire plans, to O

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(202) 628-4888 i

() THOMAS - DIRECT 13436 1 the RAC, but that we-declined to give him any copies of the RAC 2 responses.

3 MR. OLESKEY: Your Honor. I 'm going to -- I'm going 4 to of fer copies of the correspondence on this subject only for 5 one purpose, in Mr. Thomas 's Voir Dire in October and November 6 there was, to me at least, a lot of diffidence on his part in 7 getting into the deliberations of the RAC for reasons he said 8 dealt with collegiality and he requested advice from Joe Flynn 9 about whether he should talk about it.

10 I personally felt that that was likely to have 11 flavored the impression he created as a witness about reticence 12 and forthcomingness.

() 13 I want to of fer this correspondence now from early 14 '86 solely to show that, at least for this witness, there 's a 15 consistent policy regarding deliberations of the RAC as 16 collegial and something that shouldn't be disclosed in a 17 hearing unless absolutely necessary, and certainly not the 18 parties in advance of a hearing.

19 So I have a letter here dated January 23, '86 to Mr.

20 Quinn which he 's just described together with the agenda which i

21 he did provide Mr. Quinn, and a letter from Mr. Quinn dated 22 January 14 to him at which the original request was nede for 23 this information. I 'm of fering it for this limited purpose. l l

24 They 're actually two letters of January 23rd. A top l 25 document that doesn 't have the FEMA letterhead, but has some

()

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THOMAS - DIRECT 13437

.({}

1 carbon copies noted. And an underlying' letter that is on the 2 letterhead with no carbons shown.

3 And then there are two separate January 14 letters.

4 I suggest that we can all tear off the second of those so that 5 we don't burden the record further. Just take off the last-6 page.

7 (The document referred to was 8 marked for identification as 9 Mass. Attorney General Exhibit ,

( 10 49.)

11 MR. DIGNAN: Could I hear again the purpose of this 12 offer, Your Honor, before I decide to obj ect, because I don't 13 think there 's an issue of the nature that 's being litigated.

(])

14 JUDGE SMITH: The -- he 's probably alluding to an 15 observation made by the Chairman in a telephone conference call i 16 in which I stated that it was -- to cross-examination or they l 17 request examination to adduce the fact that the NRC had j 18 disagreement with the p'sition. And part of the reticence seen '

19 by Mr. Oleskey is disinclination to reveal wnat happened in the 20 RAC meeting, and he wants to disabuse the record that that was 21 a reticence just made up for that purpose, but it had been a 22 traditional procedure at FEMA to regard the RAC as RAC l l

23 deliberations as privilege  !

24 MR. DIGNAN: Well, to keep the record clear I would 25 be glad to stipulate that Mr. Thomas consistently took the

(

l l Heritage Reporting Corporation (202) 628-4888

1 THOMAS - DIRECT- 13438

(])-

1 position. as f ar as -- as long as I 've known that the RAC 2 meetings were confidential, and indeed he so testified. And I ,

3 at least had no question that that was his position and had 4 been his position right up until the time the Board directed 5 him to testify. So I'm not sure there 's an issue to be done.

6 JUDGE SMITH: That 's about as good as you can get.

7 MR. OLESKEY: If we can also stipulate that it was 8 the agency 's position, because of the number of people in the 9 agency outside the region in Washington who were copied en this 10 reply to Mr. Flynn of January 23rd '86, then I think we can 11 close it out.

12 MR. DIGNAN: I can 't stipulate to the agency 's

() 13 position, Mr. Oleskey, simply because I don't represent the 14 agency --

15 JUDGE SMITH: Let 's --  ;

16 MR. DIGNAN: -- on behalf of Mr. Flynn. '

4 17 JUDGE SMITH: Let 's let the Board rule that no 18 adverse inferences should be drawn from the fact that on 19 October 7th when Mr. Thomas testified that his reticence to 20 discuss the collegial privilege aspect of the RAC meeting. Now l

21 I 've lost the thread of my --

22 MR. OLESKEY: No --

23 JUDGE SMITH: I 've lost the whole thread here. j l

24 There 's no adverse ef fect from his reticence to break the '

25 collegiality and break the privilege.  ;

()

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G THOMAS - DIRECT 13439 1 MR. OLESKEY: Could you say the same thing with 2 respect to November 4th which was the second Voir Dire that Mr.

3 Dignan conducted.

4 JUDGE SMITH: I don 't recall that. 1 j ust don 't 5 recall that.

6 MR. OLESKEY: I 'm only asking that if you would apply 7 this same analysis to November 4th that you similarly be 8 comfortable telling us now that you wouldn 't draw any advarse l

l 9 inferences on that occasion either on account of reticence tu l

10 discuss the RAC process.

11 MR. DIGNAN: Mr. Oleskey, if you think that I

{g) 12 stipulated to that with respect to eicher Voir Dire, you better 13 just offer your document, because I didn 't. I stipulated, as I l

14 understood what this was being offered for, that Mr. Thomas 's 15 jndication that he was reluctant to disclose the workings of 16 the RAC was not something that was made up on the occasion of 17 the Voir Dire but had been his consistent position prior to 18 that time, which I am happy to stipulate.

19 I am not stipulating that no adverse inf erences /

20 should be drawn from what then took place after he was directed

- 21 to disclose.

22 MR. OLESKEY: No, that was a statement that Judge 23 Smith had made and I was simply trying to elucidate the extent 24 to which it went.

) 25 JUDGE SMITH: There 's a very discrete portion of the Heritage Reporting Corporation (202) 628-4888

-, . .- .- - - . - - ~ .- . .

1 THOMAS - DIRECT 13440

(])

i transcript on October 7th in which Mr. Thomas very specifically 2 was reluctant to talk about the RAC, he wanted to talk to j 3 counsel. There was a dialogue between Turk and Flynn.. I 'm 4 saying that there 's no adverse inference to be drawn f rom that 5 part of the transcript.

6 I have no memory about a similar situation on 7 November 4th, so I can 't be helpful' there.

8 MR. OLESKEY: Let me just ask you then -- ,

9 JUDGE SMITH: So you 're withdrawing it. I mean, 10 you 're not going to of fer 49 or that --

11 MR. OLESKEY: No, but I'm going to ask him one more ,

12 question.

(]) 13 BY MR. OLESKEY:

14 Q Did your copy -- your agency in Washington upon your

15 transmittal to Mr. Quinn reply to his request for this  ;

16 information about the RAC?

17 A (Thomas) Yes.

I 18 Q And was the position you took in telling Mr.'Quinn 19 that he couldn't have correspondence with RAC members because

! 20 it might affect the process, as you understood agency policy?

l 21 A (Thomas) The answer is, yes, and let me be very 22 clear on that. I was directed to send that letter using the 23 language that I used.

24 Q Okay.

I 25 MR. FLYNN: Your Honor, the question has been raised i O Heritage Reporting Corporation (202) 628-4888

--m, ,--y--....---~...,y--.w_,, w.-- -,,,-..y.-, , - - _ = , . ...,_.-,.,_-~,#v-,-,,,...p---,_.,,--,-,----.,r.,_-,_,,_..-,..

.e . w --ms-- , - , - -

THOMAS - DIRECT 13441

-(])

1 in this colloquy as to whether.the policy of protecting the 2 confidentiality of RAC discussions was agency policy, and I 3 wish to report that, yes, it was a long standing policy of the 4 agency, at least through November and the early part-of --

5 JUDGE SMITH: .The transcript even reflects that I 6 stated to Mr. Thomas at the time that we appreciate and 7 understood the value of collegiality and confidentiality. I 8 don't think we have an issue here.

9 MR. OLESKEY: Good.

10 BY MR. OLESKEY:

11 Q Did there later come a time when the utility asked if f 12 it could approach RAC members and discuss their views of what j 13 was -- of the New Hampshire plan?

({)

14 A (Thomas) Not exactly, no. There came a time --

15 Q Was there some kind of a contact along those lines?  ;

a 16 A (Thomas) Yes.

17 Q All right. What was that?

18 A (Thomas) There came a time when the utility 19 requested that it be able to contact the RAC members 20 individually with respect to discussing with the RAC members 21 any concerns that the RAC member may have and giving them 22 direct input in answering their questions, 23 And again. I staffed that through my Washington j 24 office. I staf fed that through the RAC itself and we -- at one t

l 25 of the RAC meetings we had the discussion of a draft of that O

3 Heritage Reporting Corporation i (202) 628-4888 l

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_ _. ,-- ,,-. _-_ _ - , - --. _ _~ _ _, --. _-. . --. _ .-..._.__ , . - . . . _ . - , , . . - - , , . . - - , - . - . _ , ~ - . , , _ . _ - - , _ . . -

h 1 THOMAS -DIRECT letter that I had sent out to the RAC.

-13442 And I took my advice-i 2 from my Washington office and the request from the RAC, which 3 in essence, the RAC. members said, we don't want to talk to the 4 utility directly, we want--to talk only through FEMA; and I took.

5 that with the advice I got from Washington and formulated a 6 response to the letter which the letter came from Edward A.  ;

7 Brown to me and I rep 1ied to Edward-A. Brown.

j 8 Q Along those lines?

9 A (Thomas) Along those lines, yes.

I 10 Q Okay. Now, you 've described coordination meetings '

11 that took place from time to time involving the State and the i 12 utility and FEMA, do you recall that?

. O 13 ^ <Tnomes) soin states --

l 14 Q Yes. j t

15 > (Thomas) -- the utility, FEMA, and sometimes the l

16 NRC; yes.

17 Q Do you recall a coordination meeting so-called in i 18 January of 1986 in which a memorandum that you understood Mr.

19 Dignan had prepared was distributed to those in attendance, the 4

20 so-called three misconceptions memo?

- 1 1 21 A (Thomas) Yes, i 22 Q Al1 right. How did it happen that at a meeting in 1

23 the middle of January 1986 a legal memorandum prepared by the 24 utility 's attorney was distributed to the federal and state i 25 personnel who were in attendance?

i O Heritage Reporting Corporation (202) 628-4888 2

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THOMAS - DIRECT 13443 T6 i A (Thomas) It happened that it was distributed at the 2 meeting and something certainly not anything extraordinary 3 about that. We of ten had special speakers come in -- Joe ,

4 Flynn; his boss, Spence Perry; as I said, Shep Turk; Tom i

5 -Dignan -- to address aspects of emergency preparedness planning 6 f rom the lawyers ' perspectives.

7 The primary purpose of the coordination meetings was 8 to create emergency preparedness plans that were going to go 9 right through a licensing hearing very easy, so we wanted to 10 get the lawyers ' input into that. so there was that document 11 distributed at the meeting and -- well.

(]) 12 Q Was it discussed?

13 A (Thomas) It was discussed at least somewhat. It was 14 discussed at least in the context that Massachusetts Civil  ;

l 15 Da. Tense Director Robert Boulay read it and said to me -- said  ;

l 16 to the group, this is a very, very important document, that l 17 it 's very significant to him and to his considerations of 18 creation of emergency preparedness plans, and he specifically i

19 requested that FEMA obtain a review, legal review of the l

20 document in cooperation with the NRC. In other words, a joint 21 FEMA and the NRC of the legal aspects of that document.

s 22 Q Was there discussion thereafter at FEMA about how to 23 respond to Mr. Boulay 's request?

24 A (Thomas) Shortly after that coordination meeting.

() 25 there was a meeting at FEMA headquarters that was attended by Heritage Reporting Corporation (202) 628-4888

O 13444 THOMAS - DIRECT 1 the staff of the NRC and there was discussion about how we 2 would go about creating a response to that document.

3 Q And what was decided as a matter of agency policy 4 about how to respond to Mr. Dignnn 's memo?

5 A (Thomas) What was decided was perhaps not so much a 6 matter of policy but j ust a matter of procedure, and that was-7 that I would send a letter to headquarters requesting that the 8 legal review be done in cooperation with the NRC, and that at 9 some future time I would get a response back from my 10 headquarters with the results of the review.

11 Q Did FEMA do any work itself in its law department. or 12 counsel 's of fice to respond?

[])

13 A (Thomas) Yes, there was a draft prepared -- a draft ,

14 response prepared that was sent to me by Attorney Flynn.  ;

15 Q And did that become the document that was the final 16 product?  ;

17 A (Thomas) No, it did not.

l 18 Q What happened thereafter? l 19 A (Thomas) Well, again. I'm involved there in 20 Washington. What I know happened was Attorney Flynn's proposed l 21 response was sent over to the NRC, and at some time after that 22 I may have received a call from Attorney Turk in other matters.

23 or I j ust don 't remember, but certainly later on in 1986 I was 24 down at NRC headquarters, or the building that Attorney Turk

() 25 works in, at any rate. whatever that building is in Bethesda.

Heritage Reporting Corporation (202) 628-4888

d O 13445 THOMAS - DIRECT 1 working on responses to contentions and motions for summary 2 dispositions and things like that.

3 And he showed me his current draft of the response to 4 the three misconceptions memo, and we had a discussion about I

5 that.

6 JUDGE SMITH: - Could you remind us now what time i i

7 period that 's involved?

8 THE WITNESS: (Thomas) I 'm sorry. I 'm having 9 trouble with the time period.

10 I looked at my travel vouchers, and tried to sharpen  !

11 up my recollection. It is only a very general recollection and 12 I'm not prepared to say it was exactly this or that. My

[])

j 13 recollection -- we do have a copy of the draft that was done by ,

l 14 Joe Flynn of the response to the three misconceptions memo, and 15 that is either late January or early February, 1986. 1 16 My recollection of the conversations with Attorney 17 Turk would have been in say around April or May of '86, but I 'm 4

18 really almost guessing. It sounds like it 's around then.

19 JUDGE SMITH: Okay, that 's good enough.

l 20 BY WR. OLESKEY:

21 Q Now, we all know in the proceeding that Attorney Turk l

22 works for the NRC and you work for FEMA.

23 When did he first become a lawyer in the case whose l 24 role was one that came to your attention?

I

() 25 A (Thomas) Sometime in late 1985 or early 1986.

i i Heritage Reporting Corporation  :

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- . . . . - . = - - , - - . . . - . - . . - - ..

(:)  ;

THOMAS - DIRECT 13446 >

1 Q And what relationship did you have with him l .2 thereafter?

3 A (Thomas) We worked very. very closely'together in -

4 terms of preparing responses to contentions and motions for 5 summary disposition and exchanging documents; essentially at 6 the instructions of Attorney Flynn. I treated him as if he 7 were co-counsel to FEMA.

8 Q Did you feel free to pick up a telephone and call him  :

9 to discuss an issue that was appropriate tc be raised with a. /

l 10 lawyer? /

11 A (Thomas) With an agency lawyer, sure; yes. ,

12 r Q And you did do that. I take it.

(]) [

13 - A (Thomas) Sure.

14 MR. FLYNN: Your Honor. I have to raise an issue-15 here. I guess this is in the nature of an objection; perhaps a  !

16 motion to strike.

17 Mr. Thomas has reported conversations that 'I had with l

18 him, but I didn't have an opportunity to obj ect because the  ;

1 19 question didn't obviously ask for hearsay. The problem that I i t 20 have is, to the extent that I might wish to. ot I might have

)

21 questions about the accuracy of every detail of what Mr. Thomas <

l 4 22 says, I don't have any opportunity to do that. I 'm not a l l

23 witness and I can't become a witness without disrupting FEMA 's l 24 role in this case. I can't become a witness and then go back  !

() 25 to being a lawyer for the agency.

Heritage Reporting Corporation  ;

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... = . . . . .-

O THOkMS - DIRECT 13447 i So I guess the question I'm raising is how I deal 2 with the problem of hearsay that 's inherent in the questioning 3 to the extent that Mr. Oleskey is going to elicit responses 4 that deal with what I said to Mr. Thomas.

5 JUDGE SMITH: It 's -a- dif ficult problem. I propose 6 what you do as -- if you don't have any dif ficulty of the 7 accuracy of the question -- I mean the answer, let it go. If (

8 you do, see if you can correct it on your examination. If you 9 can 't , then worry about it.

10 MR. FLYNN: Thank you.

4 1

11 JUDGE SMITH: Does that satisfy you? Maybe we don 't 2

12 have to worry about it. Let 's wait and see.

{])

13 MR. FLYNN: Yes. that 's helpful, Your Honor. Thank r 14 you.

15 BY MR. OLESKEY:

16 Q Mr. Thomas, to the extent that you had input into

]

17 this process of preparing a reply to Mr. Dignan 's memo, what i

18 points did you stress to be treated in the memo from your. ,

i 19 perspective. j 20 A (Thomas) From my perspective. I thought they were --

21 in the course of the response, I thought there were two special 22 points that FEMA wanted to make. )

23 The first was to make sure that everybody understood 24 that NRC valued our opinion highly; that we were important to l

(]) 25 the process. I 'm not sure -- the licensing process. I 'm not l

) t Heritage Reporting Corporation j 1

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_ _ - . . . . ~ . . . , . - . _ . , . _ . _ , _ _ , _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ - _ _ , _ _ _ , - . . _ _ _ , . . _ , _ _ _ _ _ _ . . . _ , _ , .

O O

THOMAS - DIRECT 13448 1 sure that that was nece carily clear to everyone connected with 2 the process at that time.

3 And, seco ndly, I wented to make sure that we gave the 4 emergency preparedness planners and myself proper advice on how 5 these plans should be evaluated.

6 And other than that, it was just a matter of creating 7 a correct and thorough legal response to the memorandum.

8 Q Did you or your agency advocate a position in late 9 '85, or in early '86 that a complete evacuation of the beach 10 population in the Seabrook area had to be completed within a

'.1 half an hour or so?

12 A (Thomas) No, sir. I never heard anyone advocate

(])

13 that.

14 Q Later in '86, toward the end of March, do you recall 15 a meeting with Mr. Christenbury, Mr. Speck of your -- of FEMA, 16 Mr. Jordan, and others to discuss the beach population issues?

17 A (Thomas) Can you give me the time frame again?

18 A (Thones) March -- on or about March 27 of '86.

19 A (Thomas) There was a meeting on March 27, 1986, with 20 personnel from the utility and the NRC and FEMA. That meeting 21 did not at all focus on the beach population issues, j l

22 Q Was that to be a topic on the agenda?

23 A (Thomas) If it was discussed, it was discussed in a 24 tangential way. It was discussed, and it was discussed in a

() 25 tangential way with respect to scheduling only. The meeting Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13449 1 was to talk about when FEMA was going to be finished with it 2 reviews of New Hampshire plans so that we could go forward with 3 the licensing.

4 Q Was there a discussion at that meeting about views of 5 Governor Sununu or any of his staff as to your role in 6 conducting the review for FEMA?

7 A (Thomas) There was extremely tangential discussion-8 with respect to a need to sort of lower everyone's level of {

9 temper, and stop the complaints and the yelling. I think was 10 the nature of the -- and specific <;11y that the response to that 11 from Edward Brown was, we can 't control Governor Sununu.

12 Q I don 't understand what it was that Governor Sununu

(])

13 had apparently said that was the subj ect of these comments in ,

14 this meeting. '

15 A (Thomas) I don 't know either. I just know my bose 16 said, look, it 's not doing anybody any good that there is a lot -

17 of screaming and yelling going on between the people in this i 18 room. And essentially said, look, if Ed Thomas is removed f rom 19 this process, it 's going to make things much worse. And the 20 response that the utility gave us was that they couldn't 21 control what Governor Sununu did.

22 Q Well, who was screaming in the room and about what?

i 23 A (Thomas) No one was screaming in the room at that 24 time, but apparently I wasn't really aware of any great

() 25 acrimony at that point. but my boss apparently was, and was 1

Heritage Reporting Corporation (202) 628-4888

i l

O-THOMAS - DIRECT 13450 1 the comments were addressed to the_ utility with respect to 2 knock off the yelling. i 3 Q Are you saying, in substance, that the utility and 4 the Governor of New Hampshire had been on your boss about your 5 role in the review process?

6 A (Thomas) No, I 'm ont saying that. I 'm relating what I 7 happened. Maybe I should relate --

8 Q I think if you wouldn't be quite so circumspect, and l J

9 just tell us what was said and what you-understand was going  ;

i 10 on -- '

l j 11 A (Thones) I 'm t ry ing -- (

12 Q -- we 'd get through it.

(]) -

4 13 A (Thones) I 'm trying not to be circumspect.

14 MR. DIGNAN: And I'm going to object to the leading 15 nature of the interrogation. Maybe if you would just ask it l 16 what was said, he wouldn 't have the problem he 's having.

1 17 MR. OLESKEY: I 'm having a problem --

j 18 JUDGE SMITH: We have arrived at that point now.  !

l l

19 Go ahead, Mr. Thomas.

! 20 THE WITNESS: (Thomas) I 'm j ust trying to describe

] 21 the facts. I don 't want to characterize them.

l 22 In essence, my boss opened the meeting up by saying.

23 let 's reopen communications, let 's knock off the pointless 24 shouting and screaming that 's been going on heretofore. And

() 25 either very early on in the meeting or later on in the response t

j Heritage Reporting Corporation 1 (202) 628-4888-

I i

THOMAS - DIRECT '13451 i from the utility to that point,-knocking off the shouting and 2 . calming down, was we can 't control what Governor Sununu does. ,

3 And I was basically silent throughout the meeting. I didn't  :

4 quiz -anybody on what they meant, and what was going on. That 's 5 about all I know about it --

6 MR. OLESKEY: Did you understand --

7 THE WITNESS: (Thomas) -- as of that day.

8 BY hm. OLESKEY: t 9 Q I 'm sorry. Were you through? l l

10 A (Thomas) Yes.  !

l 11 Q Did you understand from the context of the meeting 12 what the reference was with which your boss Vickers opened the

(]) ,

13 meeting?  :

14 A (Thomas) The reference es he opened the meeting

. 15 certainly was just in general with respect to reopening  !

16 communication. And then later on he went on to discuss a need  ;

j 17 to lower the decibel level and be a little bit calner. and f l

18 specifically said, if Ed Thomas is removed from this, thing.9 19 would be worse, things could be worse, words to that effect.  ;

i 20 Q Did somebody at the meeting suggest tb.at you ought to j l

i 21 be removed?

22 A (Thomas) No one at the meeting suggested that I

23 should be removed. I 'm j ust saying that was what he said, and 24 the response to it was, in essence, we can't control what

() 25 Sununu does.

J

! Heritage Reporting Corporation (202) 628-4888 i

-- - = -- . . -

O 13452 j THOMAS - DIRECT i

1 Q Okay.

l 2 JUDGE SMITH: Well, then is it your testimony that 3 you don't understand what gave rise to the suggestion that Ed  ;

i 4 Thomas ought to be removed, or what the decibel -- why the  ;

5 decibel level should be lowered?

4 6 THE WITNESS: (Thomas) I -- as of that time I --

7 JUDGE SMITH: And you ca.: ,"y you know, the degree 8 of confidence that you have in your impression, you Jhould feel i 9 free to explain tbut, too.

10 THE WITNESS: (Thomas) The degree of confideres I 11 have is comparatively slight. My boss was extremely ,

12 uircumspect with me as to what conversations he was talking

(])

i 13 about. And really further analysis would almost be speculation '

1 14 on my part.

15 BY MR. OLESKEY:  ;

16 Q Okay. The Christenbury memo was sent, as I recall. I J i i

17 in late June of 1986. Do you recall that it finally did go? j i

18 (Thomas) Yes.

A l 19 Q Prior to the time that the memo was sent to the 1 20 various people who got it, was there any discussion in your

21 agency about whether or not it was going to be sent?

j 22 A (Thomas) There was discussion in the agency in that l 23 I was called by Attorney Flynn who in essence asked me did I 4

24 really still want an answer on the three misconceptions memo.

() 25 did I think it would do any good. And because he had been Heritage Reporting Corporation (202) 628-4888

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l LO 13453 THOMAS - U7 RECT 1 given to understand from someone else that 'the utility was 2 unhappy with the answer, and that the memo would not be sent 3 unless I -- I don 't remember if he said I insisted on 'it, or I 4 still continued my request,. but basically it was going to be my 5 choice as to whether the response would be sent or not.

l 6 And I said, yes, I thought it was still very i 7 important to Massachusetts especially with respect is their

8 understanding of emergency _ preparedness planning.-

9 Let 's recall for all of us that at that time 10 Massachusetts was still a very, very. active.part of the-I -

11 emergency preparedness planning for Seabrook.

12 MR. TURK: I 'm sorry, I didn't hear who it is who

((}

13 related this to you.

14 THE WITNESS: (Toomas) Attorney Flynn.

15 BY MR. OLESKEY:

]

l 16 Q And thereafter I take it you said, yes, I think it l l

17 should be sent and it was. 1 18 A (Thomas) Yes, I did say that it was very important.

19 Q Now throughout '86, 1986 -were there_further 20 discussions with the NRC about.the state of its work on a reply 21 to your December 31, 1985 memo to all the RAC members, 22 including the NRC?

23 A (Thoma:) Yes. there were -- there were discussions, 24 yes.

() 25 Q Witn whom did you have such discussions?

Heritage Reporting Corporation (202) 628-4888

O

.V THOMAS - DIRECT 13454 1 A (Thomas) I couldn't begin to give you o listing.

2 It was a lot of people. I was very, very anxious to get an 3 answer to that memorandum.

4 Q And were a number of those people at the NRC?

5 A (Thomas) Yes, and my headquarters, and the State of 6 New Hampshire, and probably others too.

7 Q Did you have a view of whether the RAC 's progress in 8 evaluating the New Hampshire plan was being af fected by the 9 lack of a response from the NRC to the December 31 memo?

10 A (Thomas) Yes, I had a very strong view that we could 11 not come to closure on the RAC 's responsibilities in the New 12 Hampshire plan which was the Elements J-9-and J-10-M; that part

(])

13 of the spread sheets that you have seen of the RAC review.

14 That was still an open item. I wanted to close it and to 15 finish it off.

16 And as the RAC review itself indicates, it was left 17 as an open item pending resolution of the December 31st, or the 18 memorandum -- the issues that had been raised in the memorandum 19 of December 31st, and I felt that we need to have the NRC 20 response in order to come to closure on that.

21 Q Did you convey the substance of that view to these 22 various people at the NRC, among others?

23 A (Thomas) Yes, I sure did.

24 Q Did you have a conversation with Attorney Turk, or

() ,

25 correspondence with Attorney Turk in early 1986 --

Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13455 1 A (Thomas) Yes.

2 Q -- about this issue?

3 A (Tnomas) Both. Yes.

~

4 Q What did-you say to him?

5 A (Thomas) Basically what I just said; thLt, in 6 essence, look, we want to finish the RAC review. This is an 7 open item. I need the cooperat' ion _and the ascistance of the S NRC in order to come to closure on this matter.

9 And I sent him a copy of the December 31st memo, and 10 the responses we had received to date.

11 Q What did he say about any role he could play in

-12 facilitating a response?

13 A (Thomas) My recollection is, and I don 't have a note ,

14 on this, but my recollection is -- quite strong -- that what he 15 indicated to me was in essence'that it would not be appropriate 16 for him to play a role in persuading or cajoling or otherwise i

17 adducing a response out of the NRC region.

18 Q Which was Region 1, is that right?

19 A (Thomas) NRC Region 1.

l 20 Q Okay. Were other people at FEMA in Washington aware j 21 of your efforts to get a response from the NRC to your December 22 31, 1985 memo?

23 A (Thomas) Yes, very much so.

24 Q What kind of discussions did you_have with your own

() 25 people in Washington about the RAC progress and the need for a j Heritage Reporting Corporation (202) 628-4888

_ . , . _ _ _ - - _ _ _ _ . , ~ _ _ , _ _ _ _ - - .-. _ _. .

'O 13456-THOMAS - DIRECT 1 definitive position from the NRC?

2 A (Thomas) Basically that, look. hearings are going to 3 be coming up on the Seabrook plans. I want to finish my RAC 4 review. We want to wrap this issue up. I need a response from 5 the NRC, and can 't you please induce them to ar.swer the 6 correspondence.

7 Q And did they tell you that they were having their own 8 contacts with the NRC?

9 A CThomas) Yes, they did.

10 Q And did they tell you what-results they were having?

11 .A (Thomas) Well, as we went from 1986 into, you know.

12 late '86, early '87, my first understanding was that the NRC

(]) -

13 staff would not be able to provide an answer to the beach 14 population memo issues, because they were working on the 15 response to the three misconceptions meno.

16 And then after the response to the three 17 misconceptions memo came out, I said, in essence, to my 18 headquarters, good, now they can work on the response to the 19 December 31st memo and pushed on that; pushed my headquarters 20 on pushing the NRC headquarters and to induce the region to get 21 an answer and also -- sorry. That 's the end of my answer.

22 Q Okay. Were you told that some time in the fall of 23 '86, that the NRC had the view that the Christenbury - Perry I 24 memo of June was the response that was going to be forthcoming

() 25 from the NRC to your December 31 request?

Heritage Reporting Corporation (202)-628-4888

() THOMAS - DIRECT 13457 1 A (Thomas) Yes, I was.

2 Q What did you say to that? /

3 - A (Thomas) I said -- well, what I think is said'was 4- that was absolute nonsense, and that the Christenbury 5 . memorandum with the Spence Perry endorsement simply did not 6 address the issues that had been raised in the December 31st 7 memorandum as I read it. I didn 't -- I certainly couldn't 8 understand how it was a direct response, and that I very, very 9 much wanted the direct response to my December 31st memorandum.

10 MR. TURK: Your Honor, I'm going to move to strike 11 the last series of questions and answers about this hearsay 12 conversation of Mr. Thomas. Mr. Oleskey has f. ailed'to elicit

(])

13 even who the communicator was. Not only is it hearsay, it 's so 14 rank -- it 's so unspecified that there is no way that it can be 15 reliable.

16 MR. OLESKEY: I 'm happy to go through chapter and .

17 verse on who he talked to. It didn 't seem to me to be 18 critical.

19 JUDGE SMITH: He 's --

20 MR. OLESKEY: I 'm trying to move along rapidly, but 21 I 'll go back if that 's a problem.

22 JUDGE SMITH: Well, isn't this the heart of it, 23 though?

24 It 's not so much the conversations but developing the.-

() 25 attitude, Mr. Thomas 's attitude and the person to nom he Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13458 1 expressed it become secondary importance.

2 MR. TURK: Presumably the --

3 JUDGE SMITH: He.could have complained to his wife as 4 f ar as that 's concerned, and that isn 't --

5 MR. TURK: Presumably the question and answer are 6 designed to elicit correct representations, and the question 7 and answer are designed for truth of the contents. Now this is t

8 more than simply historical purpose for which the questioning 9 is taking place.

10 JUDGE SMITH: I understand what we get from this is 11 that the Christenbury - Perry exchange was, in his view, not 12 addressing the issue. That is'the central piece of evidence.

(]}

13 How he got there is relatively unimportant.  !

14 But if you -- narrow in on your obj ection. - You don 't l

15 know who the other end of the conversation was. ,

f 16 MR. TURK: And because I don 't. I believe that the  :

17 hearsay testimony is unreliable. If Mr. Oleskey want to bring I 18 in hearsay, let him at least structure it in a way that we-can i

19 have some indicia --

20 JUDGE SMITH: What he said to the other person, that j 1

21 isn 't hearsay. j 22 MR. TURK: No, there are statements that he was Id 23 by some unnamed person that the Perry - Christenbury memo was a 24 response to his memorandum of December. There is. unspecified

() 25 conversations with other people where "they said they were Heritage Reporting Corporation (202) 628-4888

'l

O 13459 THOMAS - DIRECT 1 talking with the NRC". I don 't know who these people are.

2 MR. OLESKEY: Let me ask a couple of questions and 3 cut this colloquy off.

4 MR. TURK: And I 'm would note I 'm going to have a lot 5 of trouble if Mr. Oleskey sitaply wants to make a record of 6 hearsay here. At least if he wants hearsay, let 's get it 7 specific so that we know if we 're going to have a problem.

8 MR. .0LESKEY: May I proceed and ask the questions?

9 MR. TURK: We have to do-our cross-examination 10 tomorrow. We can 't prepare. We can't talk to the hundreds of 11 NRC people who may have clues as to what this is all about. We 12 really do need some specific direct examination.

[])

13 MR. .0LESKEY: Would you tell Mr. Turk when he made 14 his point, I 'm going to ask my questions?

15 We don't need speeches because it just delays all of 16 us, Your Honor.

17 JUDGE SMITH: Go ahead, Mr. Oleskey.

18 BY MR. OLESKEY:

19 Q Mr. Thomas, in this discussion you 're having in the 20 fall of 1986 with your-headquarters about efforts you and they 21 were making to get a response from the NRC, would you tell us  ;

22 who you were talking to there in Washington?

23 A (Thomas) I couldn 't begin to give you a list of l l

24 everyone I talked to. Please understand, this was a very, very  !

I

() 25 important issue to me and to my office, and I talked to a lot Heritage Reporting Corporation (202) 628-4888

) 13460 THOMAS - DIRECT 1 of people.

2 Certainly I know from my records that I talked with 3 Margaret Lawless. I also know from my recollection that I 4 talked with Richard Krimm and Robert Wilkerson about this as 5 well. I know from my records that I raised this in one'or more 6 RAC meetings in terms of, hey, I want a response to this memo.

7 It 's very important to me.

8 Q Do you recall any specific responses that you got 9 from Lawless, or Krimm, or Wilkerson in these conversations on 10 this topic?

11 A (Thomas) Yes.

12 Q What were they?

({}

13 A (Thomas) In essence, I do have a record of a 14 conversation with Margaret Lawless, which is her note to i 15 someone else, and she sent me a copy of it, that basically says 16 that Ed Thomas is complaining about not getting an answer to 17 the December 31st beach population memorandum; that we, FEMA 18 headquarters, had been advised by the NRC -- unnamed, I believe I 19 it was unnamed, I don't recall of fhand -- that the answer to 20 the three misconceptions memo is responsive to the December l

21 31st memo. Ed doesn 't agree. She, Margaret Lawless, didn 't {

22 agree, and she was asking this other person'if she could -- if 1

23 he could intercede with the NRC to try and get an answer. l

.i 24 Q Okay. This other person is somebody else at FEMA; is l

() 25 that right?

l Heritage Reporting Corporation (202) 628-4888 l

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l O 13461 THOMAS - DIRECT 1 A (Thomas) That 's correct. It was someone else that 2 was a former NRC. employee who has very close, good relations 3 with the NRC headquarters office.

4 Q Okay. Did you ever learn anything more about that 5 track of these efforts?

6 A (Thomas) Following on these efforts the next thing I 7 have a record of, or for that matter, a distinct recollection 8 of was a conversation between myself, my boss Henry Vickers, 9 and Regional Administrator of the NRC. Thomas Murley. And that 10 conversation, as I recall, was in early October.

11 And at that time I again explained to Dr. Murley, we

'i 12 had talked about this on other occasions, I again explained to (G

13 him what the nature of FEMA 's concerns were, my concerns, and 14 why we felt we needed some information from the NRC. And at 15 that time Dr. Murley made a commitment to myself and my boss 16 that, yes, he understood the problem and that we would get an 17 answer.

E6 18 (Continued on next page.)

19 20 21 22 23 24

(]) 25 Heritage Reporting Corporation (202) 628-4888

ch tj THOMAS - DIRECT 13462 t/7 1 Q There 's an exhibit in the case now, Mass. AG 43, Mr.

2 Thomas, which is a memo that you authored about reasonable 3 assurance in October of '86, do you recall that memo and its 4 general subj ect matter?

5 A (Thomas) Yes, I do.

6 Q What was the occasion for you to write such a memo?

7 A (Thomas) The occasion was a follow-on to what FEMA 8 refers to in its parlance as, quote, "murder board or a murder 9 board."

10 Q Murder board?

11 A (Thomas) Murder board, yes, sir. It is our 12 preparations for a major hearing. And the specific hearing and

{~)

13 the specific murder board were preparations for a hearing 14 before Congressman Markey 's subcommittee of the House on -- the 15 hearing was to be held on Seabrook and Seabrook related 16 matters.

17 And at the murder board sessions, and questions had 18 come up about what reasonable assurance meant, and I had given 19 a response that was not considered satisfactory by the group as-20 a whole. And I went back and wrote up an expanded version of l

21 what I said and a rationale for why I had said it.

22 Q Well, let me see if I understand this correctly. The 23 memo was done in preparation for the Markey hearings, requested 1

24 of you by FEMA officials in order to define the concept of l

() 25 reasonable assurance should that become a topic in the Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13463 1 hearings, is that the substance of what you 're saying?

2 A (Thomas) Not exactly. I 'm not prepared to testify 3 that I was' requested to develop that' memo. . What I 'm testifying 4 is that, I developed it'following the meeting. I don 't '

5 remember if anybody asked me to'or not. .I.did it'perhaps on my.

6 own, perhaps at direction to develop it. -I' j ust don 't recall.

7 But I did it as part of our preparation for-the Markey hearing.

8 Q Did Mr. Krimm, who was the recipient, or anybody else 9 in Washington comment on the accuracy and utility of the memo 10 from their perspective after they got it?

11 A (Thomas) Intermittently Mr. Krimm, the legal staff, '

12 Mr. Flynn or Mr. Cumming, Mr. Wilkerson would make reference to . -

1

[}

13 the memo with me; yes, they.did.

14 Q What was the substance of what you were told by them 15 about how well you 'd summarized the agency 's notion of 16 reasonable assurance in. the context in which it 's put in this 17 memo. Exhibit 48?

~

2 18 MR. DIGNAN: May the witness be instructed to first 19 exhaust his memory as to exactly who'said exactly what before 20 we go to a summarization of four dif f erent people 's possible 21 views. I think at this point the hearsay objection is well 22 taken. I'm not making an obj ection provided the Board will 23 instruct that the witness first exhaust his specific memories 24 before we get into summaries.

i

() 25 MR. OLESKEY: I was actually trying to ask for Heritage Reporting Corporation (202) 628-4888

, _ , _ _ _ _ . _ = . _ . _ . _ __ _ . , _ - . . _ _ _ . . , _ . . _ _ . - _ . _ . =..._.~..-_a__ . _ __.

O THOMAS - DIRECT 13464 i summary of specific memories, but -- so I don't think Mr.

2 Dignan and I have any real dispute.

3 BY MR. OLESKEY:

4 Q We're both asking you to tell us what you recall 5 being said?

6 MR. DIGNAN: And I'd like exact words first, Your 7 Honor, or a statement that exact words can 't be remember.

8 We 're right in hearsay knee deep at this point.

9 BY MR.- OLESKEY:

10 Q We 're both asking you to tell us what you recall 11 specifically individual people said after getting your memo?

12 A (Thomas) I recall -- the first conversation I recall

(])

13 from anybody was from Attorney Cumming who said --

14 congratulated me on my progress as a law student. He said. ,

15 just the nature of that was a nice legal analysis, Eddie.

16 I had a conversation with Mr. Krimm following that.

17 and I 'm sorry I can 't give you the exact words. The substance 18 was, thank you for sending that in, it gives us a lot to think 19 about. And words that were to the effect of, boy, it sure is a 20 thick memo and it 's a lot to plow through; something like that.

21 I had conversations sporadically with Mr. Wilkerson 22 shortly following the receipt of the memo. Mr. Wilkerson 23 indicated to me that he wasn 't, by any means, sure that he 24 agreed with it and had to really, really think about it. I 'm

() 25 not sure that those are his exact words; that 's my best Heritage Reporting Corporation (202) 628-4888

1 O THOMAS - DIRECT 13465 1 recollection of it.

2 And that -- words to that effect from Mr. Wilkerson 3 continued on right through June of 1987 where I do have fairly 4 good notes that were taken at a meeting.at FEMA headquarters, 5 and Mr. Wilkerson again specifically said that he just didn't 6 know whether he agreed with the Ed Thomas reasonable assurance 7 memo or not.

8 Q He then left the agency about that time, didn 't he?

9 A (Thomas) It was after June of '87, yes. And I 10 really don 't recall anything about the nature of the 11 conversation with Attorney Flynn on this other than I know we 12 had at least one and probably more conversations that there was

{])

13 such a memo.

14 Q Is it fair to say that after the memo there.were a 15 series of discussions in which you tried to get -- you sought 16 to have the agency give you a definition, working definition of 17 reasonable assurance that you could apply in the proceedings at 18 the RAC for Seabrook and otherwise?

19 MR. DIGNAN: Obj ect ion, if that 's suppose to 20 summarize the conversations j ust described.

21 JUDGE SMITH: I --

22 MR. OLESKEY: No, it's suppose to summarize his state 23 of mind and his interest in pursuing the topic.

24 JUDGE SMITH: And what he did?

(]) 25 MR. OLESKEY: Yes.

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O- 13466 THOMAS - DIRECT  !

1 MR. DIGNAN: Well, Your Honor, can I obj ect to the 2 form and ask the question be asked that way. what if anything, 3 Mr. Thomas, did you do after these conversations,11s the 4 customary question.

5 JUDGE SMITH: All right. Mr. Oleskey was invited to 6 use leading questions to expedite matters here because of our 7 observation that -- with the relationship between the 8 questi( -'er ar.J the witness it 's unlikely that Mr. Oleskey is 9 going to plant ideas in Mr. Thomas 's mind it didn 't otherwise 10 have.

11 We do -- we would like very much to stick to the 12 schedule we have. I think we ought to stick with the amount of

(])

13 leading questions that we 've had. I don 't think it 's harmful.

14 I mean, the leadingness of it is -- I don 't think has been 15 harmful.

16 BY MR. OLESKEY:

17 Q Do you want the question restated, Mr. Thomas?

18 A (Thomas) No, I have it well enough.

19 Q Go ahead.

20 A Basically, I would periodically talk with various 21 people of the four I just mentioned: Mr. Cumming, Mr. Flynn,

, 22 Mr. Wilkerson and Mr. Krimm in the period following the memo 23 indicating not so much that we needed to have a working 24 definition for the RAC, because that 's not correct, we already

() 25 have a perfectly good working definition for anything relating Heritage Reporting Corporation (202) 628-4888

O V 13467 THOMAS - DIRECT 1 to reasonable assurance in terms of the FEMA review of 2 exercises and that didn 't seem to be an israe. Butythat as we 3 got closer to the Seabrook hearings we'had to have.a rational 4 answer to that question of what is reasonable assurance. And 5 that I thought it was-important, and periodically there would 6 be some level of discussion about that.

7 Q All right. I'll come back to that discussion level 8 later.

9 Just two final questions about this memoranda in-10 Exhibit 43. It says generally in terms of, we have reached the 11 conclusion, we believe and so on, rather than I; was this --

12 does this indicate it was the product of conversation and

(])

13 discussion among people other -- other people in FEMA and not 14 just your own view?

15 A (Thomas) Part of the "we" in the memo certcinly 16 is -- the memo is written so that it comes to a conclusion at 17 the end which was to -- was suggested to be testimony before a 18 Congressional committee, and at that part the "we" is my 19 suggested statement to what the agency _ought to say.

20 The other "wes" are really -- I 'm talking about 21 myself and my staff and our understanding of the situation- l l

22 Q Okay. Then just to clarify an ambiguity at page 23 five, at least in my mind, it says: "We 've also prepared a 24 somewhat longer answer to the question: answer mit-schlag," I

() 25 think means with whip cream or something along those lines.

Heritage Reporting Corporation (202) 628-4888

LO THOMAS - DIRECT 13468 1 "Dave McLoughlin." Whats the point of that reference in that 2 -- the answer that follows?

3 A -(Thomas) You 're --

4 Q A dressier a version of the answer?

5 A (Thomas) That'is correct. It 's humor. I mean, it 6 was a long memo and it was a little piece of humor in there.

7 Q We can use some here, too, I assure you. Okay.

8 A (Thomas) It meant only an expanded version of the 9 answer to the question.

10 Q Fine. ,

11 JUDGE SMITH: Is this a good time?  ;

12 MR. OLESKEY: It is indeed. Thank you.

(])

13 JUDGE SMITH: Return at quarter to 1:00 then.

14 (Whereupon, at 11:45 a.m. the hearing was recessed to 15 reconvene at 12:45 p.m. this same day. Tuesday, June 14 1988 16 at the same place.)

et/7 17 l 18 19 ,

20 l l

21 22 23 24

() 25 Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT. 13469 t/8 - 1 AFTERNON SESION 2 (12:52 p.m.)

3 Whereupon, 4 EDWARD THOMAS 5 having been previously duly sworn, resumed the witness stand, 6 and was examined and further testified as follows:

7 JUDGE SMITH: Mr. Oleskey, 8 MR. OLESKEY: Thank you, Judge.

9 RESUME DIRECT EXAMINATION 10 BY MR. OLESKEY:

11 Q Mr. Thomas, did you have some discussions with Robert 12 Bores of the NRC in or sbout December of 1986 in connection

{])

13 with the long-discussed NRC response to your memo of the ,

14 previous December?

15 A (Thomas) Yes, I did.

16 Q Did you learn in that conversation anything about the 4 17 timing and nature of the NRC 's response?

i 18 A (Thomas) I have a note that in mid to late December '

19 Dr. Bores called me and told me that his response was quite f ar 20 advanced, that he had a draft that had already been seen by two 21 or three people at the NRC regional office, and I could give 22 you the names, if you 'd like, and the draft at that point was i l

23 with the NRC Regional Administrator in King of Prussia, Dr. ,

l 24 Thomas Murley, for comment. '

() 25 MR. TURK : May I ask, is this anything that the ]

Heritage Reporting Corporation (202) 628-4888 I

\

l i

(I '

' THOMAS - DIRECT 13470  !

1 1 -witness is testifying to from memory or is he relying on those l 2 notes.

3 THE WITNESS: (Thomas) I have looked at notes which 4 refresh my recollection. I am not totally. independently 5 testifying from memory. They refresh my recollection, . but --

6 I'm willing to be a little precise about that, if you 'd like me 7 to be. I remember the conversation, I remember the approximate 8 time, I remember the general gist of it, but with memory alone 9 I don 't remember what Dr. Bores said about who had actually 10 looked at it and anything else at that point.

11 MR. OLESKEY: If somebody else wants that I 'm sure

(]) 12 they 'll get into it later.

13 MR. TURK: My question next, Mr. Oleskey, is have 14 those notes been produced to us?

15 MR. OLESKEY: I don 't know what notes he 's talking i

16 about. I 'm doing my examination, would you let me complete it.

17 He 's talking about something he 's seen, counsel, it has nothing 18 to do with me.

19 MR. TURK: Well, Your Honor, the problem is, there 's 20 been a discovery request for documents, if the witness is 21 relying on documents he 's reviewed and they he. 1't been 22 produced to us, then I think that 's important.

23 JUDGE SMITH: All right. I don 't think that you are 24 as sensitive as you should be in the relationship between Mr.

() 25 Oleskey and the witness. Mr. Oleskey is not responsible for Heritage Reporting Corporation (202) 628-4888

-n--,--- ,-cr.,-~. --<-,-_._,_,.,y.-m _,.,_m, .-..---.vyy. ,m_, . -. -,-m7 ~,c_. . m_-,-

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4 e

i

() 13471 THOMAS - DIRECT' ,

I 1 producing Mr. Thomas 's notes.

2 MR. DIGNAN: Well, all right, let 's cut : through it. .

3 If Mr. Thomas is relying on notes I want them produced now. As.

4 part of the cross-examination'I want to look at them now before 5 he testifies any further which is usually my right in'any  ?

6 adjudicatory proceeding, if he 's using notes. If he 's not I 7 using notes, fine. I 've got no problem. j i

8 MR. OLESKEY: Well, he has no notes in front of/him I  !

t 9 observe. / I 10 JUDGE SMITH: Igdidn 't understand he was using notes, f r

11 I understood the question was, were there any.  !

12 MR. OLESKEY: No, the reference that Mr. Dignan has

(])

13 made to his so-called right to have notes produced,~ in my 14 experience, turns on whether the witness has seen -- l 15 MR. DIGNAN: I agree with that, Mr. Oleskey, . if he 's 16 not using notes I haven't got a problem. I couldn 't tell from  !

17 the colloquy whether he was or was not.

18 JUDGE SMITH: That wasn 't Mr. Turk 's thrust, though. l l

19 So, go on. j f 20 MR. OLESKEY: Okay. j i

21 BY MR. OLESKEY:

I 22 Q Did you have any discussions with Mr. -- with Dr.

1 23 Bores then or any other time about --  ;

24 MR. TURK: Your Honor, this may come up again, I 'm i

() 25 sorry to interrupt Mr. Oleskey, that there was a document l

i Heritage Reporting Corporation (202) 628-4888  ;

O THOMAS - DIRECT 13472 1 production by Mr. Barshak late last week. I personally did not 2 receive it before coming up here, I was able to get a copy 3 here. I'd like to know if that document production purports to 4 be a response to the request for documents that was made to Mr.

5 Thomas.

6 JUDGE SMITH: By whom? -

7 MR. TURK: By Mr. Thomas.

8 JUDGE SMITH: No, no, who made the request?

9 MR. DIGNAN: Attorney General.

10 MR. TURK: Massachusetts made the request.

11 MR. OLESKEY: Months age.

12 JUDGE SMITH: Right. So go ahead. Held the

(])

13 subpoena, right.

14 MR. OLESKEY: Months ago, and then again the 15 subpoena, correct.

16 MR. TURK: And there was a document production which 17 I don 't understand textually what it consisted of and I want to 18 know if that was -- that document production was a response to 19 the request for notes that should be made by Massachusetts. If 20 it was I'd like to know if these particular notes were inserted 21 in the batch.

22 JUDGE SMITH: My trouble is, isn 't it Mr. Oleskey who 23 has standing to make the request to the argument you 're making 24 now.

() 25 MR. TURK: I would consider that I have standing as Heritage Reporting Corporation (202) 628-4888

1 O THOMAS - DIRECT 13473 1 well, Your Honor, as party in the case. When the document 2 production would have been made I would have been a recipient 3 to it.

4 JUDGE SMITH: I don 't think you have -- unless you 5 can point to somebody other than Mr. Thomas to produce notes, I 6 don 't think you have anything now to complain. I don 't know 7 what it is if you do. I mean --

8 MR. TURK: Your Honor, if your ruling is that a party 9 is not entitled to receive a document production unless he 's 10 made the request for production, that would require that every 11 party to the proceeding make an independent production of 12

[]) parroting each other 's production in order that they get 13 copies, otherwise I would have no standing to complain of 14 failure of production.

15 JUDGE SMITH: Well, the only document demand that I 16 know about is on the subpoena to Mr. Thomas. Mr. Barshak 17 apparently made return on that subpoena. If he gave some to 18 Mr. Oleskey that he didn 't give to you, that 's one problem. If 19 he gave -- if he responded to a subpoena from Mr. Oleskey to 20 Mr. Oleskey's satisfaction, I don't see how you have standing 21 to get in on it unless you can specify some other way in which 22 you 're hurt. But how do you know you don 't have what you 're 23 asking for.

24 What did you give him, Mr. Barshak?

() 25 MR. BARSHAK: I 'm going to ask Christine Netski to Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13474 1 respond to that because I was busy trying to do something else.

2 JUDGE SMITH: Ms. Netski?

3 MS. NETSKI: Yes. The documents we produced were 4 sent to all counsel that we were informed were of record in 5 this proceeding, so they should have them.

6 JUDGE SMITH: And you gave to all counsel exactly 7 what you gave to Mr. Oleskey?

8 MS. NETSKI: Yes.

9 JUDGE SMITH: Anything -- no difference?

10 MS. NETSKI: No. i 11 JUDGE SMITH: And --

12 MR. TURK: And the question --

(]) ,

13 JUDGE SMITH: Wait a minute. Let him consult.  !

l 14 MR. BARSHAK: Well, I understand, you know, following i 15 my conversation with you, which I reluctantly said, I guess I 16 have no choice if someone is going to prepare my client. I 17 told you, well, he 'll have to meet with him. And during the 18 course of that he met with him in our office. We didn 't give 19 him everything we have, because some things we don 't think he 's 20 entitled to look at all.

21 JUDGE SMITH: Mr. Oleskey?

22 MR. BARSHAK: Mr. Oleskey.

23 JUDGE SMITH: All right.

24 MR. BARSHAK: But with the exception of some things

() 25 I'm sure he must have looked at during the course of preparing l l

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c C:)  :

THONMS - DIRECT 13475 1 Mr. Thomas in our office, with the exception of that, when we 2 sent out documents originally, everybody.got the same thing.

3 JUDGE SMITH: What is it you think that you-don't 4 have. Mr. Turk, that you should have?

5 MR. TURK: I don't recall seeing these particular 6 notes. I could be wrong.

7 JUDGE SMITH: Can you be helpful here?

8 THE WITNESS (Thomas): Yes, Your Honor.

9 The particular notes in question were showed to my 10 attorney and have not been produced to anybody, other than my 11 attorney and to agency Attorney Flynn, has seen the ones that

([) 12 he has requested to look at from time to time.

13 JUDGE SMITH: And you 're asserting your privilege on 14 those notes. Mr. Barshak, or -- +

t 15 MR. BARSHAK: Well, I don't think I have to assert a l l

16 privilege yet. No one 's made any demand upon me for something 17 that I can have described, look at, and see whether I need a --

18 I 'll need a privilege.

19 MR. TURK: I have a couple of problems, Your Honor.

20 One is I still don 't understand what that production 21 was meant to be. Was it a response to the subpoena? Is it l

22 represented that that is a complete response to the subpoena?

23 What is it that we have? l 24 Number two, if there is-something that was not

( 25 produced, why not?

Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13476 i MR. BARSHAK: Number one is easy; it was a response 2 to the subpoena.

3 Number two, I don 't know what he 's ref erring to, 4 except that I say everything that was called for in the 5 subpoena was produced.

6 The witness made some personal notes .which we haven 't 7 shown anybody. Nobody 's asked for them.

8 THE WITNESS (Thomas): Your-Honor, you asked me to be 9 helpful. Can I add to that, perhaps?

10 JUDGE SMITH: Well, ' it 's up to you.

11 THE WITNESS (Thonas): It 's clear to me what is 12 happening, and basically I discussed with counsel the nature of

(])

13 the subpoena, and documents were supplied in response to the 14 subpoena, as counsel has indicated, j 15 There were additional documents that were given to 16 the Massachusetts Attorney General 's of fice that relate to the l

17 issue of my credibility, and yes, they have a stack of 1 18 documents on that issue which, as we read the subpoena, was not 19 what was being subpoenaed at that time. And that 's where we 20 are.

21 JUDGE SMITH: You gave them to Massachusetts Attorney-22 General?

23 THE WITNESS (Thomas): My attorneys did, sir.

24 JUDGE SMITH: Your attorney did.

() 25 MR. BARSHAK: Yes, during the course of preparation.

Heritage Reporting Corporation (202) 628-4888

.' .l

O THOMAS - DIRECT 13477 1 So, since he 's going to put my witness on instead of me --

2 JUDGE SMITH: You think there 's privity?

3 MR. BARSHAK: Between him and me?

4 JUDGE SMITH: Yes.

5 MR. BARSHAK: No.

6 JUDGE SMITH: So if there 's a privilege attendant to 7 those notes, it 's been, now been given up by providing it to 8 the Massachusetts Attorney General.

9 MR. BARSHAK: Oh, yes, there 's no privilege involved 10 that I know of to begin with.

11 JUDGE SMITH: Well, then you should share them.

() 12 MR. OLESKEY: I don 't care. I wasn 't -- I didn 't 13 realize until this exchange now, frankly, that I had some stuff 14 that others didn 't.

15 JUDGE SMITH: Okay.

16 THE WITNESS (Thomas): Your Honor, you did ask me to 17 clarify. Just so that everybody understands, the notes of my 18 conversation that I was makirig reference to, with respect to 19 the conversation with Dr. Bores, have, as I said, not been 20 shared with anybody, other than my attorneys. So -- but he 21 doesn 't have them.

22 JUDGE SMITH: That 's a dif ferent category of notes.

23 THE WITNESS (Thomas): That 's correct. There 's j ust 24 additional notes that Mr. Oleskey also does not have. And it 's A

(s/ 25 not that we 're asserting any privilege --

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. _ -- _ - .. _ - . ___,-_ _ _ _ . _ - . . . - ~ . . _ . . . _ _ . _ _ _ . _ . . . . _ ._. -

O THOMAS - DIRECT 13478 1 JUDGE SMITH: But those that Mr. Oleskey has.

2 certainly there 's no privilege, nobody is obj ecting to sharing 3 them, and they should be shared now.

4 MR. OLESKEY: That 's okay with me.

5 JUDGE SMITH: The other notes, that 's another matter.

6 I don 't think that 's before us now, is it?

7 MR. OLESKEY: Just to be clear, I got some -- I was 8 out of my office yesterday afternoon. There were scme 9 documents waiting for me from Mr. Barshak 's of fice at 5: 00 10 o ' clock last night which I personally haven 't looked at, 11 although Ms. Keough 's looked at'them, and I think Ms. Weiss has

() 12 looked at them. I don 't know whether, in response to any 13 particular question, when the witness says he 's been ref reshed 14 f rom notes or documents whether he 's ref erring to documents 15 that were produced by Mr. Barshak last week or documents that-I '

16 now understand may be somewhat different that.we received 17 yesterday that-I haven't seen but others have, or the documents l 18 he has yet -to produce that he 's j ust described.  ;

19 So, may I resume?

20 JUDGE SMITH: Yes.

21 MR. OLESKEY: Thank you.

22 JUDGE SMITH: All right.

23 Are you satisfied now, Mr. Turk?

24 MR. TURK: Your Honor, the subpoena which was served j

(} 25 upon Mr. Thomas back on April 14, 1988, included Item 2, all l

Heritage Reporting Corporation (202) 628-4888

. ~ . _ . _ _ _ _ - . _ . . . - . _ . _ . , __ . - ,_ ,._ _ _ _ . - ~.._.a_.__,. , _ _ , _ _

.O THOMAS - DIRECT 13479 1 notes prepared by you memorializing the discussion at any  :

2 meeting where the adequacy of NHRERP for Seabrook was 3 discussed, or without limiting it to the generality of the 4 foregoing,'in particular any notes prepared by you after or as 5 a result of the March 4, 1988, meeting.

6 Number -- the next item, all materials utilized by 7 you or other participants at interagency meetings between FEMA l 8 and NRC, including but not limiting the generality of the 9 foregoing'the January.19th meeting between FEMA and NRC. l t

10 Next item, all notes or materials bearing on the  ;

11 issue of dose reduction achieved or achievable by the NHRERP, 12 telephone logs of any telephone conversations you may have had

[])  ;

13 with others outside FEMA regarding the agency 's position on the 14 adequacy of the NHRERP in regard to --

15 MR. BARSHAK: Are you reading the subpoena, Mr. Turk? <

l 16 It doesn 't sound like it. It doesn 't sound -- I don 't have it  !

17 in f ront of me -- it doesn 't sound like the subpoena that Mr.

18 Oleskey caused to be served on my client. Would you please f 19 identify what you 're reading f rom? ,

t 20 MR. TURK: I 'm reading f rom my copy --  :

21 MR. BARSHAK: Of what? r 22 MR. TURK: -- of a document filed on Apiil 14th,

{

23 1988, and entitled Application for Subpoenas Requiring l j

24 Attendance and Testimony of'Particular Named FEMA Employees,

()' 25 pursuant to-10 CFR 2.720(a) and NRC Employees pursuant to

(

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(202) 628-4888

. - - _ - - .. ..- - - , - _ _ . - - - - ~ . - . , , - - , . . . - , - - , - - -

I l s_/ I THONMS - DIRECT 13480 l 1 2.720Ch)(?).

2 This document was served -- it 's a 17-page document -  !

l 3 - served --

4 MR. BARSHAK: 17 pages? l 5 JUDGE SMITH: That 's not the one. l 6 MR. BARSHAK: That 's not the subpoena.

I 7 JUDGE SMITH: That 's not the same subpoena.

8 MR. BARSHAK: No, not the seme --

9 JUDGE SMITH: Let 's -- look, everything except some l 10 notes that you prepared relating to the credibility issue have 11 been produced; is that correct, to Mr. Oleskey, at least?

() 12 THE WITNESS (Thomas): Various things have been 13 produced at various times. Requests for productions of 14 documents have been made on FEMA, and in consultation with FEMA i 1

15 counsel the agency has produced some documents. i 1

16 MR. OLESKEY: Previously.

17 THE WITNESS (Thomas): Previously.

18 MR. OLESKEY: A long time ago. I l

19 THE WITNESS CThomas): A long time ago.

20 A subpoena was served on me personally, and after 21 consultation with my attorneys, a response was made to that 22 subpoena.

23 JUDGE SMITH: But there is a category of notes which 24 you have so far decided not to reveal; is that right?

(3 (J 25 Well, that you -- I mean, that was not, in your view.

Heritage Reporting Corporation (202) 628-4888

-;O r THOMAS - DIRECT 13481 1 waa'not responsive to the subpoena but in addition-to that' you 2_ provided to your attorney? Everything that has been responded 3- to the subpoena is in the hands of Mr.-Oleskey. . but ' there 's 4- also a category of other information given to Mr. Oleskey.but 5 not to the parties. Now where does.that fit in?

6 MR. BARSHAK. .May I inquire, because I --

7 JUDGE SMITH: Yes.

8 MR.~BARSHAK: -- wasn't involved in all aspects of 9 this.

10 (Witness and counsel confer.)

11 MR. BARSHAK: I think I know the answer; I 'm going to 12 try to state it succinctly.

[])

13 The subpoena has only one paragraph scheduling 14 documents; it 's very simple. To the best of our knowledge 15 we 've turned over all of those documents; everybody has them 16 In addition, after my conversation with you, and 17 pursuant to that, having Mr. Thomas come to my office, and he ,

18 prepared, he was trying to educate us because we didn't know 19 anything about this case, there are other things which do not 20 appear to come within the four corners of this. But since I 21 was not going to put him on the witness stand, somebody else 22 was going to, in the course of Mr. Oleskey preparing him, there

- 23 were those documents. I gather from Mr. Oleskey, he says he now 24 has them in a pile he --

() 25 JUDGE SMITH: Okay.

Heritage Reporting Corporation (202) 628-4888 i .

1 THOMAS - DIRECT 13482 1 MR. OLESKEY: I take it those are the documents that 2 came over' yesterday afternoon to our-office.

3 MR..BARSHAK: Then in addition --

4 JUDGE SMITH: We 're not worried about those anymore.

5 because Mr. Oleskey 's going to make those available to the 4

6 other parties.

7 MR. BARSHAK: Then there 's a third category which 8- Your Honor mentioned. There are some personal notes on mostly 9 yellow sheets, I think, aren 't they?

10 THE WITNESS (Thomas): Personal notes, egency notes, 11 hundreds of pieces of paper.

(]) 12 MR. BARSHAK: They're notes that he took which he 13 made which don't appear to be really even relevant to the 14 examination that 's going to be conducted, which we 'didn 't turn 15 over. No one 's called for them. -

16 JUDGE SMITH: Because they 're j ust not relevant, they 1 '

17 don 't respond to any request before you?

18 MR. BARSHAK: I think that 's a f air statement. May I 19 check?

20 Well, I have to say, with only one small caveat. I 21 It 's a lot of pieces of paper, and I can't guarantee that we 22 reviewed every single one. but --

23 JUDGE SMITH: Let me go right to it.

24 Mr. Thomas was concerned after his second appearance l

() 25 here that questions were being raised as to his credibility.

He.itage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13483 ,

1 He became aware of Dr. Bores 's and Mr. Lazarus 's dif f erent 2 opinion because of memorandum, and we have some testimony that.

3 he had conversations with Dr. Bores on recollection. Is that -

4 - some of these notes pertain to that? -

5 THE WITNESS (Thomas): Quite conceivably. We --

6 JUDGE SMITH: I 'm -- well, ~ the point I 'm raising, if ,

t 7 that 's what it is, I'm trying to cut short this area of inquiry l 8 as not being very productive and very-helpful to our inquiry, t 9 and I -- the parties always resist it, but I think the time has ,

10 come for you to reali=e that you 're j ust not' going to do ,

i 11 anything better to illuminate the record on this point. ,

() 12 MR. OLESKEY: Sorry, which point are you addressing, f

13 Judge?

l 14 JUDGE SMITH: If that is part of.the notes, if that 's  ;

t 15 what the concern is.  ;

16 THE WITNESS (Thomas): Can I confer? Excuse me.  ;

17 JUDGE SMITH: Yes. i i

18 (Witness and counsel confer.)

19 (Continued on next page.) ,

20 i

21 '

')

22 l 23  !

24 I

) 25 j l

i i

Heritage Reporting Corporation (202) 623-4888 l

O THOMAS - DIRECT 13484 T9 1 THE WITNESS: (Thomas) We had given Mr. Oleskey my 2 personal, handwritten notes of the conversations I had 3 following the hearing on Novenber 4th.

4 JUDGE SMITH: All right. That 's all right.

~

5 THE WITNESS: (Thomas) That 's all.

6 JUDGE SMITH: He already has that.

7 THE WITNESS: (Thomas) The only thing that Mr.

8 -Oleskey doesn't have is material that my attorneys advised me 9 was j ust burdensome, and not necessary.

10 For example. I have a sheet in what I call my log

'l 11 book that makes note of a conversation with Dr. Bores. If  !

12 anybody wants that, they can have it. The problem is going

(]) l 13 through the pieces of paper and xeroxing them. And if we flag 14 things as we go along, and I have the notes.- anybody who wants 15 to see them is most welcome to them.

16 I would like to reserve the right on some things to 17 edit out personal, you know, characterizations or something  !

18 liXe that.

l 19 JUDGE SMITH: Let's go on.

i 20 All right, would you summarize to what extent do you  :

i 21 feel unfulfilled enough?

22 MR. TURK: With respect to this hearing.

23 (Laughter.) l l

24 MR. TURK: I was under the impression, apparently

() 25 erroneously, that Mr. Barshak 's document production was in Heritage Reporting Corporation (202) 628-4888

. _ _ . ._ . _ . _ _ . , , . _ _ . _ . _ _ . . _ . . _ - _ _ . . _ . . ..-..___..._...-__._.___J

i b

. O-THOMAS - DIRECT 13485 1 response to the April 14th request. I stand corrected, and I 2 thank-Mr. Barshak for correcting ne.

3 I now understand that there has been a document 4 request attached to a subpoena which I do not have a copy of.

5 I inquired of Mr. Flynn and Mr. Dignan and Mr. Backus if they 6 have copies here. They told me they do not. So I don't know 7 what the request is.

8 I'm in the dark as to exactly what the new document [

9 request was to Mr. Thomas and how the production responded to 10 it.  !

?

11 JUDGE SMITH: But you 're getting -- whatever was L

I

() 12 produced you 're going to get. .

13 MR. BARSHAK: He already has it. ,

14 JUDGE SMITH: Well. no , there is still some more. I i

15 MR. OLESKEY: What he is saying -- what Mr. Barshak 16 is saying that Mr. Turk has the response --

17 JUDGE SMITH: Yes.  :

-l 18 MR. OLESKEY: -- to the subpoena. i 19 JUDGE SMITH: Right.  !

20 MR. OLESKEY: He doesn 't have additional material, et i

21 cetera.

22 JUDGE SMITH: I misspoke. Right, okay.  ;

i 23 MR. TURK: So I'll wait to see if I can get a copy of j 24 the subpoena, and then see if I have problems. At this point i

() 25 I don 't know if I have a problem.

i Heritage Reporting Corporation (202) 628-4888

0

-O THOMAS - DIRECT 13486 1 BY MR. OLESKEY:

2 Q Mr. Thomas, back at the races with the questioning.

3 The question you-were about to be asked was this: In 4 this period, in December of 1986, when Dr. Bores was describing 5 the status of the NRC 's response, did you have then or indeed 6 at any time discussion about whether the response was an agency 7 position as distinguished f rom that of the individual Robert 8 Bores?

9 A (Thomas) I 'm not sure if we had one at that 10 particular point. My notes don't address that, but the issue 11 of whether Dr. Bores 's written comments concerning RAC reviews, f

() 12 the A through F elements were personal comments from him, or 13 agency comments was something that he and I had been going back 14 and forth on for a long time.

f 15 Q Now this is something other than the Bores letters.

16 You 're talking about response to the NUREG review; is that  !

i 17 right? '

18 A (Thomas) That is correct.

19 Q All right.  !

i 20 A (Thomas) And it was just an object of frequent  ;

J 21 discussion. We had never really come to closure on it. I had ,

I 22 certainly indicated to him that when I got something with an j 23 agency letterhead on it signed, that I relied on that as a 24 position of at least that office of the agency that I was -- I ,

() 25 expected it to be an agency position, and he had many times l

l i

Heritage Reporting Corporation I I

(202) 628-4888

O THOMAS - DIRECT 13487' 1- expressed reservations that he wasn't in a position to develop 2 agency positions.

3 I would say, well, then send me it _ from somebody ---

4 get me a review f rom somebody that 's authorized to sign this on 5 behalf of the NRC. I'm entitled to the position of the 6 representative of the NRC pursuant to our regulations, and I 7 want something that I~can rely upon.

8 We did have discussions along these lines with J

9 respect to the beach sheltering issue at one or two points with 10 Dr. Bores and with other people from the NRC, and I did 11 understand that it was -- that whatever we got from the NRC 12 would not be the final authoritative position; that that only

(])

13 could be developed through the licensing board process and 14 through the -- one particular part of their law office. I 'm 15 sorry, I don 't recall the name.

l 16 Is it the executive office of legal -- General 17 Counsel 's of fice could state a position on NRC regulations, and 18 that was a very elaborate process.

19 And we finally came to en agreement that whatever I 20 had was something that we could rely upon, and it was on agency 21 letterhead and it was signed by someone who was ready to come 22 forward and testify on it, t 23 Q Ar.d by late ' 86, at the time of this discussion which 24 you were reviewing a moment ago, was that the understanding?

() 25 A (Thomas) That was my understanding, yes. That was J

Heritage Reporting Corporation (202) 628-4888

. . - . . . ~ - ~

() 13488 l

THOMAS - DIRECT e i further throughout 1986 that that was one of the reasons that i 2 it was taking so long to.get a paper from the NRC because there 3 were a lot of folks that had to look at the paper before it ,

4 went to us, because I was saying that this -- this document l

5 with respect to the beach shelter is going to be an important 6 issue in the licensing hearing, and we want to be able to have 7 something we can rely upon at the RAC level and at FEMA in 8 terms of reaching our review under A through P at the RAC 9 level, and then finally a FEMA finding and determination under  ;

10 our regulations. ,

11 Q When, in February '87, the document we have labeled .

12 here for shorthand Bores 1 came into you, did you in your own

(]) j 13 mind assess it as the NRC response which you had been pressing 14 to get since December of '85?

15 A (Thomas) Yes, I did, and I understood that then and l 16 understand now that there would be those that would say, no, 4 17 it 's not the agency position, but however you care to  ;

18 characterize it, it met the standards that I had articulated  ;

19 that it had to be on letterhead, signed, with a text explaining l 20 their position with respect to why it was that -- with respect 21 to the beach population at Seabrook, that FEMA could come to a 22 finding that there was a reasonable assurance of an adequate 23 level of public protection. And then finally it was somebody 1 24 that was prepared to come forward in a licensing hearing and l

() 25 explain that to others, the judges. I Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT 13489 1 Q When you got that letter, Bores 1, and read it, what 2 did you conclude for your purposes as the RAC chair, as the -

3 FEMA regional officir.1 were the salient or important points 4 that were being made?

5 A (Thomas)- Well, the most important point that was 6 being made to me -- the most salient point that was being made 7 to me, as I understood it, was that we had -- we were going:to 8 give Seabrook special treatment.

9 There was this containment, that there was a less of 10 a probability of a release at all, that the nature of the 11 release was such that it would be less of a risk to the public.

(]) 12 and that the time of the release would be greater than the 13 standard parameters in NUREG-0654. And that that would be the 14 basis that we would rely upon for our finding of a reasonable 15 assurance of an adequate level of public protection.

16 I viewed that memo as -- or that letter us 17 essentially the solution to the problems that FEMA hed been 18 raising concerning the Seabrook beach population.

19 JUDGE SMITH: You said time of release. Do you mean 20 to say time until release?

21 THE WITNESS: (Thomas) Tine to release, yes.

22 JUDGE SMITH: To release.

23 THE WITNESS: (Thomas) To release, yes.

24 In other words, with respect to the reference in i

() 25 NUREG-0654 that there can be release from initiation to release Heritage Reporting Corporation (202) 628-4888

(~N

\-)

THOMAS - DIRECT 13490 1 of a half of hour, as little as a half an hour; that that time 2 was different at Seabrook.

3 BY MR. OLESKEY:

4 Q And was the treatment of these issues in the memo 5 consistent in your mind with the kind of discussion you 'd had 6 with the NRC in the previous year about the nature of the 7 response that you would find helpful?

8 MR. TURK: I 'm going to obj ect because I don 't recall 9 any testimony about discussions with NRC on that in the prior 10 year.

11 MR. OLESKEY: Have we been in the same hearing room?

12 He 's testified that he had discussions beginning even

(])

13 before he sent out the memo in '85, and continuing all the way 14 through '86, with the NRC at the region and through officials 15 of FEMA in Washington, that there had to be a response to his 16 December 31, '85 memo. And if it was going to be helpful, it 17 should be responsive to that memo. And he 's described what it 18 was that the NRC and before that the utility had said that 19 would take the discussion out of the standard tracking of the 20 NUREG elements against the plan, and enable the plant to get 1

21 special consideration.

22 JUDGE SMITH: I thought there had been plenty of 23 testimony on that. Mr. Turk. j 24 MR. TURK: Well, I don't recall that the NRC had I

(')s

(_ 25 suggested giving special treatment. Your Honor. I think that '

Heritage Reporting Corporation (202) 628-4888

O 13491 THOMAS - DIRECT 1 was something that was discussed, but I don't recall that as 2 a --

3 JUDGE SMITH: It 's the characterization --

4 MR. TURK: Characterization.

5 JUDGE SMITH: -- of the discussion that you obj ect 6 to.

7 MR. TURK: Yes.

8 BY MR. OLESKEY:

9 Q The question was, was the memo consistent with the 10 discussions you 'd had in the past year with the NRC about the 11 kind of information you would consider to be responsive or

(]) 12 helpful to your memo of December 31, Mr. Thomas?

13 A (Thomas) Yes.

14 Q Thank you.

15 And did you send out that memorandum to the RAC for 16 review?

17 A (Thomas) Yes.

18 Q Did you send Mr. Turk, my worthy adversary behind me.

19 a copy of that memo?

20 MR. TURK: Why don 't you ask about time f rame. Mr.

21 Oleskey?

22 THE WITNESS: (Thomas) Yes.

23 BY MR. OLESKEY:

24 Q All right. When did you send the RAC the Bores 1

(^;)

s 25 memo of late February for their review?

Heritage Reporting Corporation (202) 628-4888

. _. _ _ _ . m.. ._ . , _ _ _ ._ _ _. _ _ _ . _ _ _ _

t

~

THOMAS - DIRECT 13492 ,

r 4

1 A (Thomas) I don 't have an independent recollection

, 2 of that. I believe you have a --

3 Q Let me just show you a transmittal memo. dated March 4 2nd, and ask if that refreshes your recollection.

i 5 A (Thomas) This is a copy of-a.meno that I took'from 6 my files. I believe that on or about March 2nd, we sent it 7 out. I have no independent recollection of that. That sounds 8

right, though.

. 9 Q And on or about that date did you send a copy of that  ;

10 memo, or some other memo.to Mr. Turk with an additional copy of j 11 this Dr. Bores memo?  ;

(]) 12 A (Thomas) I don 't know what you mean by an additional 13 copy of Dr. --

14 Q A copy of Dr. Bores 's memo.

15 A (Thomas) Not on that date, but my recollection is 16 approximately a week or so later --

) 17 Q Fine.

18 A (Thomas) -- our records indicate that a copy of that i 19 was sent to Mr. Turk. l 20 Q Okay. So the RAC had it, and Mr. Turk, as NRC 's

! 21 counsel, had it some time in early March as you recall it. I J

22 MR. TURK: Well, wait a minute now. The witness has i 23 just stated that his records indicate something. And, again, )

)

24 that 's not testifying f rom reco. lection. Mr. Oleskey. )

() 25 MR. OLESKEY: If you want me, counsel, to stop and Heritage Reporting Corporation (202) 628-4888

_ _ - . - - . . - . - . ~ - - . . - . . - . - . - - - , - - . _ . - . - . - , - - - - -

O THOMAS - DIRECT 13493 1 pull out the records and protract it rather than explore it.

2 If you doubt the accuracy of the record or his testimony, if 3 the Board directs me to deviate from my cross (sic). I 'll do it 4 now. I suggest, however, that 's the kind of thing that 's 5 appropriate for you to explore on your cross-examination.

6 MR. TURK: No. Your Honor, if we 're getting into 7 things that are based on records, we have a right to establish 8 in the first instance if the testimony is based on records or 9 on recollection.

10 If it 's based on records. I 'd like to .have the record 11 identified and see if we can prepare fr cross. examination.

12 JUDGE SMITH: With respect to this particular point.

(])

13 do you question the accuracy of it?

14 MR. TURK: Yes.

15 JUDGE SMITH: Okay.

16 MR. OLESKEY: The question is do we treat it now or 17 dc we treat it on cross.

18 JUDGE SMITH: Treat it now.

19 MR. OLESKEY: Al right.

20 BY MR. OLESKEY:

21 Q Mr. Thomas, would you tell us what the record is that .

22 leads you to testify that Mr. Turk received a copy of the Bores 23 1 memo from you some time in early March of 19877 24 A (Thomas) In preparing for my appearance here today.

() 25 I spent quite a lot of time going through FEMA 's files, and Heritage Reporting Corporation  :

(202) 628-4888

,0 v

THOMAS - DIRECT 13494 1 found a record in the FEMA file of -- which is our official 2 green copy, showing who received copies of the memorandum.

3 Q That 's the March 2nd memorandum to the RAC?

4 A (Thomas) Yes.

5 Q All right.

6 A (Thomas) With the attachments to the March 2nd 7 memorandum which was all the responses we had received to that 8 point to the beach population memorandum, the December 31, 1985 9 memo. And it indicates copies going internally to FEMA. I 10 don 't think that 's -- unless you want me to go into that.

11 Q No, go ahead.

12 A (Thomas) Indicates a copy to Richard Strome on

(])

13 3-6-87; to Joe Flynn on 3-9-87. It looks like 3-6-87 written 14 over with 3-9-87 And then to Sherwin Turk, 3-6-87. It appears 15 to be a 6 written over a 3-9-87. It may be a 9 written over a 16 6. I 'm not sure which.

l 17 I did not make these notations. I recognize the 18 handwriting of the person who did.

19 Q Is that the kind of record which FEMA ordinarily made 20 in the course of its business at that time in connection with 21 showing that copies of official documents had been sent out to 22 agency personnel?

23 A (Thomas) Well, not just agency personnel, but .

l 24 everyone.

() 25 Q All right.

Heritage Reporting Corporation (202) 628-4888

/~%

(._/

THOMAS - DIRECT 13495 1 A (Thomas) Yes, yes, yes.

2 Q It was in the ordinary course of FEMA 's business at 3 that time to make such a record; is that right?

4 MR. TURK: Your Honor --

5 THE WITNESS: (Thomas) Yes, it is.

6 MR. OLESKEY: Fine. I'll of fer the record if counsel 7 persists on this point.

8 MR. TURK : I 'd like to see the document. It 's not 9 been produced.

10 MR. BARSHAK: Well, it 's not very f ar. Do you want 11 to come over here and take a peek. Right here. 1 1

(]) 12 MR. OLESKEY: I don 't want to see it. Apparently 13 counsel does, Mr. Barshak. It 's Mr. Turk. l 14 MR. BARSHAK: I mean it 's right here. Maybe we can 15 save some time.

16 There 's your name right there, sir.

17 JUDGE SMITH: Let the Board see it, Mr. Turk.

18 MR. OLESKEY: If he want to inquire, let 's mark it as 19 an identification exhibit, Your Honor.

20 MR. TURK : I don 't need to mark it.

21 MR. OLESKEY: Well, I don 't want a documes.t --

22 (Simultaneous conversation.)

23 JUDGE SMITH: Gentlemen, come on. Let 's move on.

24 Let 's let Mr. Turk do it his way this time.

() 25 MR. BARSHAK: Can I just make sure I get it back Heritage Reporting Corporation (202) 628-4888

O 13496 THOMAS - VOIR DIRE 1 eventually, Mr. Turk?

2 MR. TURK: Oh, absolutely.

3 MR. BARSHAX: Thank you.

4 VOIR DIRE 5 BY MR. TURK:

6 Q Mr. Thomas, you indicated that you recognize the 7 handwriting with which these names are written down.

8 Whose handwriting is it?

9 A (Thomas) Elizabeth Dionne.

10 Q And who is she?

11 A (Thomas) She is now a technological hazards 12 specialist in my division, in the Natural and Technological

(])

13 Hazards Division.

14 Q And when did she come into your division?

15 A (Thomas) In November 1981. At that time she was a 16 clerical employee and has worked her way up.

17 Q And if I 'm not mistaken, there are -- there is a 18 pencil entry here that indicates R. Strome, 3-6-87. Do you 19 recognize that that 's a pencil entry?

20 A (Thomas) I remember that there were some pencil and 21 some pen entries. I 'd have to look at it. l 22 Yes, I recognize that that 's a pencil entry that says 23 R. Strome, 3-6-87.

24 Q And then below that there is a pen entry that says

() 25 cc: H. J. Flynn, 3-9 over 6-87; is that correct, it 's a pen Heritage Reporting Corporation (202) 628-4888 l i

b THOMAS - VOIR DIRE 13497 1 entry?

2 A (Thomas) That 's correct.

3 Q And below that another pen entry, Sherwin Turk, 4 3-6 with perhaps a 9 written over it. '87. That 's a pen entry, I

5 is that correct?

6 A (Thomas) That is correct.

7 Q And below that there is an initial.  :

8 A (Thones) That 's correct.

9 Q Whose initials are those?

10 A (Thomas) Those are mine.

11 Q But you indicated that you did not prepare these 12

(]) entries?

13 A (Thomas) That 's correct.

14 Would you like me to explain that?

15 Q Did you -- did Ms. Dionne indicate to you when she 16 made these entries? ,

17 A (Thomas) I've never talked to her about the entries.

18 Q So you don't know when she made those entries?

19 A (Thomas) I don't know that of my personal knowledge, 20 now.

21 Q And you don't know if she was correct by making those j 22 entries. I I

23 A (Thomas) I know that she 's a very, very careful, I 24 thorough employee. l

() 25 Q That 's not my question.

Heritage Reporting Corporation (202) 628-4888 l

4

.(:) i THONMS - VOIR DIRE 13498  :

i i i 1 You have no knowledge that she was correct in making ,.

3 2 those entries; is that true?- ,

3 A (Thomas) That 's true. .'

4 JUDGE SMITH: Is it a normal practice in your agency 5 to keep a record of subsequent -- well, that 's not -- it  !

! 6 strikes me as a little bit unusual to see the typed in carbon  ;

7 copies, and then having the handwritten additional ones.  :

2 8 Is that a common practice in-your agency?

.i i 9 THE WITNESS: (Thomas) It 's. a common practice in my  ;

1 10 office. What we try and do is on our green copy keep a record j 11 of who actually got the memorandum.

l 12 JUDGE SMITH: Why wouldn't all the recipients receive

({} ,

! 13 it at the same time?

14 THE WITNESS: (Thomas) In this. case, which I have 4 i 15 knowledge of, there were people that got it at different times.

) 16 The original distribution -- l 17 JUDGE SMITH: Because of later needs?

! i

18 THE WITNESS

(Thomas) Later needs or it 's -- again 19 I 'd be speculating, but can I just describe how this would i

i 4

20 work? i j

21 This green tissue would cone to me along with the 22 original on it. I would sign the original and I put my 23 initials on the green, which is then our file copy that, yes. I  !

4 i

i i

24 did send this out.

() 25 After -- at some point after this was distributed.

)

Heritage Reporting Corporation J. (202) 628-4888

F O 13499 f 1 the original distribution, additional needs came up. For 2 example. I remember very distinctly distributing this to 3 Richard Strome on or about 3-6. I don 't remember that it was t 4 3-6 -but I remember talking to Dick Strome essentially along

, 5 the lines of saying the beach population issue is solved, thank i

6 God, it 's over, we 're going to be able to wrap this up very, ,

1 l 7 very quickly. And Dick asked me for a copy of the response 8 from the-NRC. And I said, well, you know. we don 't usually do 9 that, but I 'll send it to you, and that was the 3-6. l 10 JUDGE SMITH: What do you remember about the Turk r

11 entry?

12 THE WITNESS: (Thomas) No recollection at all.

(])

I -

13 JUDGE SMITH: I infer, Mr. Turk, that you did not I

14 receive it. I i

! 15 MR. TURK: That 's correct. Your Honor.  !

16 JUDGE SMITH

Okay.

17 MR. TURK: I am also about to, if I can find the .

18 place in Mr. Thomas 's deposition. I 'm going to show that Mr.

1 19 Thomas has previously stated that the document, to his 20 knowledge, was not shown to me until the middle of April 1987.

i

21 Would Mr. Thomas agree with that so I can save the 22 time +of looking through the deposition transcript?

23 THE WITNESS: (Thomas) My recollection is that we j 24 had a conversation about the Bores memo, and you indicated to

() 25 me that you had never seen a copy. I did not previously Heritage Reporting Corporation (202) 628-4888 i

, t

.i

() 13500 I

4 1 testify to this. I remember at the time I thought, gee, I 2- thought I thought _I had sent you one. And I think I said that 3 to_you. And I said, yes, we 'll send you another one, and that 4 was approximately mid-April; that is-correct.

5 As~I said. when I was going through our files, this 6 is what I found.

7 MR. TURK: You didn 't indicate that in your 8 deposition, though, did you, that you had indicated to me that 9 you had thought you had sent me one already. You didn 't 10 mention that in your deposition.

11 THE WITNESS: (Thomas) I did not mention that, no, t

12 sir.

(])

13 MR. TURK: It wasn 't important.  ;

r 14 MR. OLESKEY: Wait a minute. Is he going to be .

15 allowed to continue an ad hoc voir dire with --

16 JUDGE SMITH

Didn't he just testify that in t 17 preparation of coming here today he went to his files. and i 18 there he finds a green copy, and the green copy now is the one 19 that he 's talking about as I understand; was that your (

20 testimony? i i

21 THE WITNESS: (Thomas) Yes, sir,

]

l 22 JUDGE SMITH: Which is I don 't understand to be  ;

23 inconsistent with the deposition. ,

24 But we 're taking a long time on an issue that I never

- () 25 would have believed we could come so far away from the  ;

j Heritage Reporting Corporation 4 (202) 628-4888 l

O 13501 1 standards of NUREG-0654 as we have these last few minutes. I 2 mean it is far. l l

3 Go ahead, Mr. Oleskey.

4 -e MR. OLESKEY: Thank you.

E9 5 (Continued on next page.)

6 7

s 8

9 10 11 0 22 13 14 15 16 17 18 19 20 21 22 23 24 O 25 Heritage Reporting Corporation (202) 628-4888

\ _____ _ _______ __ ____ _ _ _ _ . ._.

(:) 13502 THOMAS - DIRECT r t/10 1 RESUME DIRECT EXAMINATION  ;

2 BY MR. OLESKEY: -

3 Q When you said you attached the other materials that~  ;

f 4 had come in, were you referring to the 1986 responses from the 5 other RAC members?

6 A (Thomas) Well, Dr. Bores response and the 1986 i

7 responses; all of the responses which we had received up until  ;

i 8 that day. 1 l

9 Q So you wanted the RAC to have a package of the  ;

i 10 responses to your 12-31-85 memorandum?

l 11 A (Thomas) That 's correct. We had previously sent out l

12 a package that didn't include Dr. Bores 's response, and I

(])

13 wanted to send out another package that was complete. .

14 Q And a couple days later did you get a further  !

15 response from Mr. Wasserman of a Weather Service? }

I 16 A (Thomas) Yes, according to my records we dio, i l

17 Q What was the substance of that response?

18 A The substance of it was just a statement that he  :

I 19 agreed with the concerns expressed by Paul Lutz about the '

, 20 variable condition at the Seabrook beach.

i I

21 Q And with that response did that conclude the i I i 22 materials that the RAC had on April 15th from its members that  !

4 1

~

23 were responsive to your request as to December 31. '857 J

l 24 A (Thomas) That is correct.

] () 25 MR. OLESKEY: I 'm not going to of fer the Lut: memo. I I

1 i Heritage Reporting Corporation (202) 628-4888  !

! l

O THOMAS - DIRECT 13503 ,

1 Your Honor, because he 's just testified to what it says and' I i

l' 2 want to save time. [

3 THE WITNESS: (Thomas) The Wasserman memo.  !

-4 --o MR. OLESKEY: Wasserman, excuse me. . -

i  !

5 BY MR. OLESKEY

6 Q Now, Mr. Thomas, I want to direct you to the RAC l

7 meeting of April 15, 1987. First, let me ask if there were 8 counsel in attendance from any agency?

4 9 A (Thomas) No.

10 Q Have you reviewed notes, from whatever source, of 11 that meeting in preparation for your testimony this week?  ;

12 A (Thomas) Yes.

[]} l 13 Q Do you have a recollection based upon whatever you 14 knew before you made the review and the review of the notes of i 15 some of the things that happened at the meeting? i 1

16 A (Thomas) Yes.  !

i 17 Okay.

Q What was the focus of the meeting?

I j 18 ~. A (Thomas) The -- well. I considered the focus of the 19 meeting on the resolution of the issues that I had raised.in /i 20 December 1985. And from that we very quickly went to focusing j 21- on Dr. Bores 's response, and spent -- shall I continue?

22 Q Yes, please, i

23 A (Thomas) Spent very few minutes discussing the first 4

24 part of his memorandum which dealt with the compliance -- his

() 25 feeling that the New Hampshire plans complied with each of the Heritage Reporting Corporation

(202) 628-4888 l i

O THOMAS - DIRECT 13504 1 subelements of NUREG-0654 that related to the beach population.

2 the A through P elements.

3 And then we spent the bulk of the meeting going over 4 the second part of his memorandum, the additional 5 considerations, talking about the nature of the release, the 6 time of the release, and weather. We spent a lot of time on 7 weather. And we spent a lot of time talking about a phrase 8 that was in that -- Dr. Bores 's memorandum where the notion 9 that was attempted to be conveyed was that -- at a distance 10 10 miles from the Seabrook site, ar indiv1Jual was at the same 11 level of rish that an individual would be at two -- excuse me.

12 I think I 've j ust gotten it backwards.

(])

13 JUDGE SMITH: You got saf ety and risk.

14 MR. OLESKEY: Dr. Bores already testified there was 15 some confusion about this. 1 16 THE WITNESS: (Thomas) There was. Well, the concept 17 that was trying to be conveyed is that a person would be just j 18 as safe 10 miles from the Seabrook reactor as they would be -- j 19 JUDGE SMITH: Two miles from Seabrook, 10 miles some l

20 place else.

21 MR. DIGNAN: He should have read the Dignan memo.

22 -

(Laughter) 23 MR. OLESKEY: He read it one too many times.

24 BY MR. OLESKEY:

() 25 Q Want to try it one more time.

Heritage Reporting Corporation (202) 628-4888 l 1

O THOMAS - DIRECT 13505 i A (Thomas) I guess so.

2 Q With the assistance that Judge Smith has given you.

3 A (Thomas) Thank you. At two miles from the Seabrook 4 site a person would be just as safe as if they were 10 miles 5 from another plant. In other words. Seabrook was special.

6 That because of the nature of the containment and the special 7 features of the plant, that from two miles further on you were 8 at the same level of risk, same level of safety as someone 9 outside the normal 10 mile emergency planr.ing zone.

10 That was the concept that was attempted to be 11 conveyed and we had spent a tremendous amount of time trying to 12 figure out how to write that down on a sheet of paper.

t'])

13 Q Did Dr. Bores give a gloss or an explanation, a text.

14 textual analysis of this portion of his memorandum?

15 A (Thomas) He certainly explained what it was that he 16 meant to say, and we had a variety of different explanations ,

17 about what it was, and finally we wrestled with some language 18 that we decided on at the meeting and then Dr. Bores sent e  !

19 letter or memo to me later setting out that language. ,

20 Q Did Dr. Bores say anything in substance that went, 21 the so-called special features of the plan aren't essential, in 22 my view or the NRC 's view, to this RAC reaching its position of ,

23 adequacy or reasonable assurance about the plan?

24 MR. TURK: I 'm going to obj ect to the compound

() 25 question. You 're throwing in Dr. Bores or the NRC, why don 't i

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O 13506 THOMAS - DIRECT ,

1 you specify what you want. Mr. Oleskey.

. 2 MR. OLESKEY: Well. I wanted both and that 's why I 3 asked both, counsel.

4 MR. TURK: Well, I obj ect to the compound.

, 5 MR. OLESKEY: Well, fine.

6 JUDGE SMITH: We 'll make it either; does that satisfy l 7 you?

8 MR. OLESKEY: Thank you.  ;

I 9 JUDGE SMITH: Well, if it doesn 't speak up.

10 MR. DIGNAN: It doesn 't satisfy me. ,

11 MR. TURK: It doesn 't sat i sfy me. Your Honor. i 12 MR.-DIGNAN: I want to know what Bores said, and then

(])

13 we can hear what anybody else said,

]

i 14 MR. OLESKEY: I haven 't asked about anybody else, 15 I 've only asked about Bores.  ;

16 MR. DIGNAN: Well, you said, or anybody at the NRC.

17 JUDGE SMITH: Well, let 's make it Bores, then --  ;

18 MR. OLESKEY: Let's start again.

19 BY MR. OLESKEY:

l 20 Q Did Dr. Bores say in substance the position here with l

21 respect to the containment and risk isn't essential to the RAC 22 reaching its position of comfort, however you want to 23 technically style that. Mr. Thomas, in passing upon the plan?

24 A (Thomas) He said something much like that. What he

() 25 argued, and argues in the memo, it was by way of correcting Heritage Reporting Corporation l (202) 628-4888

c I )' 13507 THOMAS - DIRECT 1 something that I had started the meeting off with. He said,

-2 look, according to his analysis the standards -- the A through 3 P standards of NUREG 0654 are met on the -- by the Seabrook j 4 plans as they stand. That the -- as I understood the j 5 conversation from there, and I 'm not saying it was absolutely [

6 crystal clear to everybcdy else. it was clear.to me, that the j i

7 extra stuff, the extra considerations were designed to address l 8 my concern on the reasonable assurance issue.  ;

i 9 In other words, going beyond the strict A through P  ;

i j 10 standards of NUREG-0654 to a more generic analysis of 0654 and j 11 the FEMA regulations addressing the standard of a reasonable [

t 12 assurance of an adequate level of public safety.

[]) ,

13 So he made it very clear, and I agreed with him that, 14 yes, you can argue that 0654 is met, and that 's really what the 15 RAC is traditiorially focused on, whether or not the A through P f

16 standards of 0654 were met. [

17 Q What did you say with respect to your view for FEMA l 18 of whether the standards were met by the plan without reference  !

l

19 to the containment and the risk factors?  !

I

! 20 A (Thomas) In essence what I said was, that I wasn 't l t

21 going to get into a fight with anybody about that at that point {;

22 because we had the extra -- the added considerations. That I I 23 felt that the standard could be read 'ooth ways. But that I I 24 could understand how somebody could argue that -- specifically l f () 25 we were talking about J-9 and J-10-M. that those two portions i

Heritage Reporting Corporation (202) 628-4888 '

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i :( ) 13508 4

THOMAS - DIRECT 1 of the A through P standards in Part 2 of NUREG had been met.

2 I can understand how somebody would say that. Dr.

3 Bores, who I have great respect.for.said it, other' people at ,

4 FEMA were to say that later. I didn't necessarily agree with ,

5 it, but it was a matter of no consequence because we were' 6 leapin,g forward -- further on giving us information that there 7 was a reasonable assurance of an adequate level of public 1 i

8 safety.

9 Q When you say "we" do you mean the RAC or FEMA?

10 A (Thomas) What I say -- what I 'm trying to convey 'is i 11 that. my sense is that the RAC was advising FEMA, as they will i 12

(]) do when requested, as to whether they felt that there was a 13 reasonable assurance of an adequate level of public safety. I i

14 mean, we do ask for that. We ask for that essentially when we.

15 ask for their input on categorizing the problems that come up  !

16 in an exercise: is it a deficiency or is it an area requiring l 17 corrective action. As we ask for their advice with respect to l

i 18 the Pilgrim report. That this was going beyond the A through P 1 19 stcndards of NUREG.

1 20 What I think -- what I understood we finally agreed 21 to was, we were going to do both. We were going to say that 22 the standards of NUREG-0654 are met on J-9 and J-10-Mi and the 23 articulated reason was coing to be essentially a modified 24 version of the Bores paper.

() 25 Q What was the modification going to be?

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() THOMAS - DIRECT 13509 l 1 A (Thomas) Well, we were. going to make -- we were I 4

~

2: going to put in, in English, the concept of the differential l 3 and the risk at Seabrook, and also some changes.with respect to f

4- tne+ language Dr. Bores was suggesting with respect to the winds l 5 at the Seabrook beaches. It was the primary changes; there may t

t 6 have been one or two others, I j ust don 't ' recall 'them of fhand.

7 Q And with those factors, was it your understanding 8 that the RAC was saying es a group, not j ust that the J-9 'and 9 J-10-M standard had been met, but that reasonable assurance, in i 10 their judgment, would be provided? l 11 A (Thomas) That was my understandir.g. yea, that that 12 was what they were advising FEMA, yes.

({}

13 Q And who was to do what efter the meeting to. pull all  !

l 14 that together so that there would be a position that 15 represented the RAC 's view once and for all on those issues? [

16 A (Thomas) Basically the way we left it, Bob Rospenda  ;

17 who is the person that I have tasked over the years to write up  ;

18 the results of the RAC meeting on those spread sheets-that  ;

19 we 've talked about many times here, was to get with Bob Bores 20 and figure out the language for J-9 and J-10-M. And  !

21 modifications were to be made to the Bores 's paper and thut l 22 was, as I understood it. tas going to be that or some i

23 modification of it, whether, you know, it was going to have Dr.

24 Bores 's cover sheet or whatever, it was going to get appended

() 25 right on to the RAC report.

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O THOMAS - DIRECT 13510 1 Q And was Mr. Rospenda or anybody else suppose:to 2' produce a piece of paper that represented testimony coming out-3 of the RAC for FEMA or somebody else to deliver at the 4 licensing hearing?

5 A (Thones) No, Maybe I should.explainLthat. The

,6 reason I say no is, I think I heard your question to say, was 7 it going to be testimony of the RAC. Mr. Rospenda was working 8 on one thing at that point and that was getting a RAC review 9 spread sheet finished with an appendix of a paper.

10 Later he was also tasked with a separate item for 11 FEMA of assisting us in preparing testimony for the Seabrook 12 proceeding.

/]}

13 Q And by later do you mean late in April of '87 or in 14 May?

15 A (Thomas) Yes.

16 Q And who, to use your words, tasked him with that 17 responsibility?

18 A (Thomas) I don 't recall. It may have been a -- I 19 j ust don 't remember. It would have come out of discussions 20 that I would have had with FEMA counsel and FEMA headquarters.

21 I don't know if I particularly told him or somebody down at j l

22 headquarters did, I j ust don 't remember. I l

23 Q And in this continuum after the April 15th meeting '

24 leading up to what the Board knows happened on June 2nd and

() 25 June 4th of that year with the filing of the very different

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THOMAS - DIRECT 13511 1 piece by FEMA, what happened to derail the -- making the RAC 's 2 position final on the one hand between Mr. Rospenda and Dr.

3 Bores, and Dr. Rospenda preparing testimony which would 4 eventually be given in a hearing reflecting the view of FEMA 5 and the RAC? And if that 's too big a chunk I 'll break it up.

6 A (Thomas) Let me try. It 's Mr. Rospenda not Dr.

7 Rospenda.

8 Q Yes.

9 A (Thomas) The thing thet happened was, we were told 10 that we could not longer rely upon the Bores 1 memo, and that 11 came at a variety of different points through May and then into 12 early June, that we could no longer rely on that. And we

({}

13 didn 't come to closure, therefore, on writing up the language 14 of the RAC review. We were spending most of our time 1 15 exchanging drafts, the testinony between Dr. -- Mr. Rospenda i l

16 and my staff, and Mr. Rospenda and NRC attorneys and Attorney i 1

17 Flynn.

18 JUDGE LINENBERGER: Excuse me, I 'm puzzled here.

19 When you say, we were told we could no longer rely upon .who so 20 told you?

l 21 THE WITNESS: (Thomas) The first direct recollection l 22 that I have is approximately the 19th of April and I do have l 23 notes in, what I call my logbook that address this. I was told 24 by Craig Wingo of FEMA headquarters that there had been a A

(> 25 meeting with the NRC, and they were backing -- I don 't remember Heritage Reporting Corporation (202) 628-4888

L i

(~

U)

THOMAS - DIRECT 13512 1 his exact words, but the sense was they were backing away from.

2 the Bores 1 paper. And there were additional conversations 3 with Attorney.Flynn. There may have been a conversation or two 4 with Attorney Turk in that period, and then that culminated in 5 our June 2nd meeting.

6 I don't know how much of those you want to get into.

7 JUDGE LINENBERGER: That 's fine. l 8 BY MR. OLESKEY:  :

9 Q There is in evidence as part of Staff Exhibit 2-A at l t

10 global page 42 a letter to you from Bores offering some i

11 language to be inserted in his memorandum, and it 's contained j 12 at the bottom of the page. It appears to bear on this

(])

13 recollection that you have about the level of risk at two miles 14 and 10 miles. What was the reason, as you understood it, why  ;

15 that language was being sent along to you about nine days, I 16 guess, after the RAC meeting had concluded? l 17 A (Thomas) It was to put this concept into an 18 intelligible form that everyone could live with. At the RAC ,

i 19 meeting, I don't remember exactly what the language was in the 20 original Bores paper, but everybody else had as much trouble

]

21 with-that language as I just had explaining what it was. {

l 22 Q And vid that paragraph that you got from Dr. Bores i

23 under date of April 24 put it in a form that you thought made j 24 sense +4n light of the discussion at the RAC meeting? l

() 25 A (Thomas) Yes. Yes.

l Heritage Reporting Corporation I (202) 628-4888 J i

O THOMAS - DIRECT ~13513 1 Q During this period were the discussions between 2 yourself and the Office of General Counsel for FEMA _about.how 3 testimony embodying this RAC result would be presented at a 4 heari-ng and who present it?

5 A (Thomas) Again, the testimony was not so much on the 6 RAC result per se, but, yes, there were conversations about the 7 testimony concerning the beach population, response to 8 contentions -- FEMA position on contentions. And how we would 9 handle a position on contentions and how we would handle the 10 actual testimony.

11 Q Was there a discussion inside your agency that Dr.

12 Bores would be a good person to present some of this testimony?

(])

13 A (Thomas) Oh, yes, 14 Q What was the substance of that discussion?

15 A (Thomas) Well, basically this came in the context of 16 working with Attorney Flynn, and I remember working with 17 Attorney Chan in my office at that point, going over the FEMA l

18 position on contentions and our motion for the -- the position 19 on the motions for summary disposition end that sort of thing.

20 And the subj ect came up of position on the baach population, 21 those three contentions that dealt with that. And we pointed 22 out that we were going with the RAC review and relying very, 23 very heavily on Dr. Bores 's paper, and FEMA felt that he would 24 have to come forward and testify.

() 25 Q When you said, Attorney Chan in your office, you 're Heritage Reporting -Corporation I (202) 628-4888 I l

_ . _ . _ - . . _ . _ - _ -. _ .._--_..H

-O THOMAS - DIRECT- / 13514 1 describing Attorney Elaine'Chan of the NRC being_at your office -

s' 2 for a meeting; is that right?

i 3 A (Thomas) Yes.

4 Q Okay. And as a result of those discussions, was .

5 there a letter sent which'we marked as Exhibit 30 here by Joe- t 6 Flynn to Mr. Reis of NRC?

7 A (Thomas) That is~ correct.

8 Q Did you see that letter before it went or at least ,

9 after it went?

10 A (Thomas) I saw it both before and after it'went.  !

11 Q But did you have any discussion with Mr. Flynn at or j 12 after the time the letter went out with -- about whether it was  !

[])

13 entirely accurate?

f 14 A (Thomas) Yes. I 15 Q What was that discussion? r 16 (Thomas)

A The discussion was, after the letter had 17 been faxed and perhaps after it had been mailed, I had already 18 seen a draft of it and I simply did not catch on reading that l l

19 draft a statement in the next or next to the last paragraph  !

20 which says that the RAC has determined that it 's essential to 21 the ef fective presentation of FEMA 's testimony on this issue 22 that Dr. Bores be available.

23 And I pointed out to Attorney Flynn that that really 24- wasn 't so, we hadn 't talked about that in the RAC. That I

() 25 believe the thrust of the letter was suppose to be that FEMA Heritage Reporting Corporation (202) 628-4888

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O 13515 THOMAS - DIRECT 1 has determined that it 's ef f ective to FEMA 's presentation, the

.2 testimony, Dr. Bores be available.

3 What I recall is the bottom line which was Joe Flynn 4 told me not to worry about it. And I have a vague recollection 5 of some of the details there, but it 's pretty hazy.

6 Q So, as you recall and as this letter indicates, as 7 late as May 1 there was still an assumption at FEMA that Mr.

8 Bores 's paper of February would be the basis for a FEMA filing  !

t 9 with the Licensing Board and testimony which it was hoped Dr.

10 Bores would deliver?

11 A (Thomas) Yes, but in fairness, as I testified.

12 starting around the 19th of April or perhaps even a little

(]) l 13 earlier than:that, there was a growing sense that there was a  ;

14 very active movement within the NRC to pull the Bores 1 paper.

15 But we were saying that, look, we have this, what became Bores 1 16 1, this paper from Dr. Bores, we 're relying on it ; and it 's an  ;

17 important part of.our testimony.

18 And the purpose of this letter was to make it clear l

19 that we were expecting Dr. Bores to testify on this, because.

20 there had been discussions with Attorney Chan from the NRC in i 21 my office with Joe Flynn there to the effect that Dr. Bores 1

22 would not be available for testimony on what he had written in 23 Bores 1. And that was the reason the letter was sent.

24 Q And did Mr. Rospenda in early May draft some

() 25 testimony for possible use by FEMA?

1 l

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I THOMAS - DIRECT 13516 1- A (Thomas) Yes. In April and May Bob was -- Bob and c

2 my. staff were doing ocafts of what'became. testimony, I .

3 remember at that point it was our response to -- it was the 4 FEMA position on contentions and our response-to.the various Y

5 interrogatories. It was primarily designed to respond to the 6 Board request that FEMA produce a position on contentions by [

7 June 4th. It later became testimony. I don 't -- sometimes I 'm i 8 perhaps a little loose in my wording there, it became  ;

9 testimony; at that point we weren't necessarily preparing 10 testimony, we were preparing response to contentions.

11 Q And did you become aware that Mr. Rospenda had sent l 12 his draft of the FEMA position dated May 6th.to Mr. Swiren of

(])

l 13 your office and Ms. Chan and Joe Flynn on May 7th, all in a i 14 document that 's been marked here as Mass. AG 32?

15 A (Thomas) I knew in general that that was going on. j i

16 Q Do you recall seeing this document which has been 17 marked as Exhibit 32?  !

i 18 A (Thomas) I don 't recall seeing this document at that  !

i 19 time. I saw this document in preparation for my appearance r 20 here today.  !

21 Q Okay, 22 A (Thomas) This was being handled at the staff level i 23 by Bruce and Bob Rospenda, and I was pretty well'out of that j 24 loop handling other things in terms of the details of the n)

(_ 25 testimony preparation.

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0- 13517 THOMAS - DIRECT 1 Q Did that draft that was sent off to people in your i 2 agency, at the NRC, in your mind accurately reflect the 3 position the RAC had come to on April 15th after the long ,

4 discussion which you 've testified to here?

5 A. (Thomas) I honestly have no recollection of. j 6 reviewing that draft. It wasn 't quite f ar enough along. The i

7 concept was that, the staff would pull the testimony together 8 and get input from various sources, and then as I understood 9 it, it would come to me. I may have seen it, I don 't know. i

-l 10 Q Let me ask you this then, which isJreally what-I  :

11 wanted to ask. Having reviewed it now in preparation for your 12 testimony did that draft that Mr. Rospenda was doing at Argonne

(])  ;

13 in Chicago reflect accurately what you felt the RAC had f 14 concluded in its April 15th meeting?  ;

15 A (Thomas) I 'm prepared to state that in general -- I  ;

16 mean, I looked at this in preparing for this hearing here 17 today, and that was a fairly rushed process for me.with new l t

IP lawyers and all. I didn 't go through this line by line. But -;

i 19 in general I think it captures what the RAC was recommending to l 20 FEMA and what FEMA had decided tentatively it was going to  !

l 21 adopt.  !

l 22 Q Well, let me be precise about it. Part of the l

23 document relies on the containment and references to risk as l l

24 important to the position that was being reached. It doesn't

() 25 treat it was surplusage or excess or nice stuff, but seems to l

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() THOMAS - DIRECT 13518 1 treat it as previously testimony has had it, that it was part j 2 of the RAC 's opinion as to why the plan would be adequate. Was .;

3 that portion of it -- did that portion of it accurately reflect  :

4 what you' felt had happened at the April 15th meeting of the 5 RAC?  !

6 MR. TURK: Obj ection, unless you 're going to ask l 7 whether there were any clear expressions at the RAC. You 're  !

8 asking for speculation by the witness as to what was in the ,

9 mi-ds of over half a dozen, nine or ten people at a RAC l 10 meeting.  !

11 MR. OLESKEY: He 's testified. about -- l 12 MR. TURK: Ask if there were expressions.

(]) ,

17 MR. OLESKEY: He 's already been through that meeting.

{

14 I 'm now asking if L later document . accurately reflected what he  ;

15 heard and what was said and what he 's testified to today.

16 MR. TURK: Well, if you 're asking for what was l l

17 stated, I have no obj ection. i et/10 18 (Continued on next page.). .

19 l 20 21 22  ;

l 23  !

24

() 25 l Heritage Reporting Corporation (202) 628-4888

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O THOMAS - DIRECT 13519 T11 1 BY MR. OLESKEY:

2 Q With that helpful clarification from Mr.' Turk, Mr.

3 Thomas, would you answer the question?

4 A (Thomas) Let me try with this.

5 I left the April 15th RAC meeting with an 6 understanding that Dr. Bores felt that with respect to NUREG 7 Part 2, A through P, specifically J-9 and J-10-M, that he felt 8 the plans were adequate on that basis without the special 9 considerations. I understood that.

10 I also understood that we had spent the bulk of the 11 time in the RAC meeting talking about the special 12 considerations portion of his paper. And I left the meeting,

(])

13 as I believe Mr. Rospenda 's spread' sheets reflect, with the 14 sense that all of Dr. Bores 's paper, including the special 15 considerations, influenced us with respect to J-9 and 16 J-10-M, and that was why it was -- as I understood it, it was 17 going to be an appendix to the RAC review. That was my 18 understanding.

19 Regardless of that, it was certainly my very clear 20 understanding that going f rom the literal compliance with the A ,

21 through P standards that where the RAC is giving FEMA advice on 22 FEMA 's regulatory requirement to come to a finding of a 23 reasonable assurance of an adequate level of public safety, it 24 was certainly my understanding, based upon the time that we

-() 25 spent with Dr. Bores 's paper, the second part of Dr. Bores 's Heritage Reporting Corporation .

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.,- THOMAS - DIRECT 13520 1 paper, that that was very important to people in terms of the

.2 advice that they were giving to FEMA.

3 That 's ray answer - to your question.

4 Q Well, let me try this once again because I'm not sure 5 if you 've answered the question I wanted to have answered.

6 As you looked at.this document 32, Mass. AG Exhibit 7 32, in preparation for this testimony, did you feel it fairly i 8 reflected the substance of the comments that had been~made et.

9 the RAC and the way the RAC had Icft its deliberations two or i 10 three weeks earlier, on April 15th?  :

11 MR. DIGNAN: Obj ect ion.

Q 12 MR. TURK: I obj ect to the form. The witness has 13 been very careful to say that he left with an understanding ,

l 14 based on the amount of time spent on the issue that it was 15 important. i

16 The question, as I clarified it in advance, was what 17 were the statements. There has been no testimony about 18 statements. You 're looking to establish something that the i 19' witness has been very careful about being correct on.

20 With respect to the compound nature of the question,  ;

21 I think it was obvious from the question that he was looking at 22 both the statements made and the impression left of the overall ]

23 status, and I obj ect to that.

24 MR. OLESKEY: Mr. Turks seems to be under some-O 25 u lueion 1ne1 1ne queetion inet hee to de eeked ie nie i

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kJ THOMAS - DIRECT 13521 1 question. I want the question being asked to be mine, and let 2 me rephrase it.

3 MR. TURK: Thank you.

4 BY MR. OLESKEY:

5 Q On Page 2 of Exhibit 32, Mr. Thomas, do you have it 6 there?

7 A (Thomas) Yes.

8 Q There is a discussion that begins at the bottom 9 paragraph, "The following considerations were utilized by the 10 RAC in arriving at its conclusion relative to the beach 11 population."

12 And it goes on to Page 3 where a new paragraph begins

(])

13 about half way down. Do you see that?

14 A (Thomas) Yes.

15 Q In your mind as you look at that right here with the 16 Board and all of us, were those considerations utilized by the 17 RAC in arriving at its conclusion relative to the beach 18 population?

19 A (Thomas) Yes.

20 Q Thank you.

21 JUDGE SMITH: I guess I need some more help as to 22 that text that he alluded to.

23 MR. OLESKEY: Yes, the ques -- my question is 24 intended to ask, look at that language, look at what Rospenda

() 25 said the RAC had relied on. Is it consistent with your Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT. 13522 1 understanding from the April 15th meeting of what the RAC 2 relied on in' reaching its conclusion of.the beach population.

3 JUDGE SMITH: Would you identify that text better?

4 MR. OLESKEY: Of course. Thank you.

5 MR. TURK: And I object to his characterization.- The 6 question was -- or the statement by the witness was that these 7 elements were considered >y the RAC, not relied upon. They 8 were considered by the'RAC in reaching its conclusion on the 9 beach population.

10 Incidentally, Your Honor, these bullets are the 11 bullets, I presume, from Dr. Bores 's first paper. ,

12 MR. OLESKEY: Dr. Bores has testified that the

[")

13 corsiderations that are listed there match, as anyone who takes l

14 his paper and matches them against this document will see, the 15 bullet points from the last page of his document, the Bores 1 j 16 letter.

l 17 So let me identify it clearly for the record, Judge, 18 as you have requested.

19 The language I referred Mr. Thomas to began on Page 2 20 with the sentence I read, "The following considerations were 21 utilized by the RAC in arriving at its conclusion relative to 22 the beach population." And ran over to Page 3, ending with the 23 last bullet point, "Reasonable assurance" does not equate with 24 "absolute-safety", i . e. , guarantee of no exposures or exposures 1

() 25 above the PAGs.

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THOMAS - DIRECT 13523 1 BY MR. OLESKEY:

2 Q You understood that was encompassed within my 3 question, Mr. Thomas, did you not?

4 A (Thomas) Yes, I did.

5 Q Okay.

6 JUDGE SMITH: And what 's the exhibit?

7 MR. OLESKEY: It is Exhibit 32, Mass. AG, Your Honor.

8 And the point which Mr. Turk has made, which I agree 9 with, is that all those considerations in fact were taken 10 literally from the last page of Dr. Bores 's February meno, 11 Bores 1, as he himself has previously testified.

12 MR. TURK: That 's my impression. I won 't state it

(]}

13 100 percent, but that 's my impression.

14 MR. OLESKEY: We have not given the Board another 15 copy of 32.

16 JUDGE SMITH: No.

17 MR. OLESKEY: I apologize.

18 BY MR. OLESKEY:

19 Q Directing you to Page 4, Mr. Thomas, the paragraph 20 beginning, "The use of early precautionary protective actions 21 such as beach closing and evacuation is not the sole means for 22 protection of the beach population." ,

23 Do you see that paragraph?

24 A (Thomas) Yes, e

(_)s 25 Q Okay. Is that summary here in Mr. Rospenda 's draf t i l

l Heritage Reporting Corporation (202) 628-4888

f O THONMS - DIRECT 13524-1 of May 6th consistent with the discussion at the RAC on. April 2 15th of the significance of a portion of Dr. Bores 's _ paper?

3 A (Thomas) Yes.

4 Q Fine.

5 MR. OLESKEY: Now I 'm going to move on, Your Honor, 6 to a different topic.

7 BY MR. OLESKEY:

8 Q You said that Mr. Wingo called you, Mr. Thomas, some 9 time after the RAC meeting and said that the NRC might withdraw i

10 Mr. Bores 's paper.

11 A (Thomas) That is correct. j 12 Q Okay.' Did you then discuss with him or shortly

({}

- 13 thereafter what your agency would do if that happened?

14 A (Thomas) Yes. i 15 Q And when did you approximately have a discussion 4

16 about the contingency action that your agency would take if the 17 NRC withdrew Dr. Bores 's February memorandum?

18 A (Thomas) I 'm not prepared to swear to the exact -

19 date. I believe I had it with him that very day, on the 19th.

20 It may have been at a later time, a day or two later. I 'm j ust 21 not sure.

22 Q What was the contingency that the agency developed 23 for its own position in the eventuality that the position by 24 the NRC was changed?

() 25 A (Thomas) Let me be careful here. You 're saying Heritage Reporting Corporation (202) 628-4888

h THOMAS - DIRECT 13525 1 neither Craig Wingo nor I have the authority to develop a 2 position of the agency in this hearing. We both have certain 3 parameters of authority.

4 What Craig and I were saying was, was in essence that-5 we were going to tell the NRC f rom' our perspective that: if we 6 didn 't have Bores -- what became Bores 1 Dr. Borea 's memo, 7 that we didn 't see how we could possibly come to a finding of 8 reasonable assurance of an adequate level of public safety.

9 Q Arxi therefore the~ agency 's position were adopted 10 along the lines that Mr. Wingo was suggesting would be what, 11 sir?

12 A (Thomas) I 'm not sure that he was suggesting it. It

({}

13 was what I was telling him and I believe he was agreeing with 14 would be that if you pull that paper, then we come back - -we 15 don't see our way clear to a solution to the problem en the 16 Seabrook beaches; that using the standard parameters, in 17 essence, tracking along the logic of the Appendix 1 position on 18 contnntions. Pages 38 and 39, to use the standard parameters of 19 emergency planning in NUREG-0654, you don 't come -- FEMA 20 doesn't come to a reasonable assurance of an adequate level of 21 public safety.

22 Q During this same period, in the middle of'May or so 23 when you 're having these conversations with Mr. Wingo, did you 24 talk to Dr. Bores about his understanding of where-this

() 25 interagency discussion was, the standing of his paper as Heritage Reporting Corporation (202) 628-4888

O 13526 THOMAS - DIRECT i something that your agency could rely on?

2 A (Thomas) On or about February 21st, and 'the notes .

I 3 are what? Give me the -- i 4 Q February or May, sir. l 5 A (Thomas) Excuse me. On or about May 21st, my. notes '

6 give me the date, Dr. Bores called me. I remember the 7 conversation very, very distinctly. And he essentially said 8 there are horrible things going on down here. The lawyers are l 9 involved. That all the technical people have reviewed this 10 paper and are comfortable with it, but the lawyers aren 't. And 11 my notes stop at that point, and I 'm testifying from memory 12 here. It looks like his paper was going to be pulled by the

(])

13 NRC.

14 And I told him, well, fine. You understand what the 15 consequences are, and in terms of a negative finding of 16 reasonable assurance, and we just had a very mutually sad 17 conversation at that point.

18 Q Was there any discussion about whether the utility 19 would carry the issue of the containment, or push the issue of 20 the containment at that time?

21 A (Thomas) In that conversation, or in another 22 conversation Dr. Bores indicated that one of the problems, at 23 least, that was causing the NRC to have difficulties, or.the 24 NRC attorneys having difficulty with the Bores paper wat that

() 25 the NRC didn 't f eel, or the NRC staf f didn't feel that they Heritage Reporting Corporation (202) 628-4888

n THOMAS - DIRECT 13527 1 should have to carry the burden of, as it were, proving the 2 special nature of the Seabrook containment. But that, rather, 3 if anybody was going to do that, it would have to be the 4 Applicant.

5 MR. TURK: For clarification, what 's the date of this 6 first or second telephone conversation, the horrible things are 7 going on?

8 THE WITNESS: (Thomas) The date of that is about May 9 21st.

10 BY MR. OLESKEY:

11 Q Now I want to direct you to --

12 A (Thomas) I do have those notes. I mean. I --

(])

13 Q That 's all right. You don't have to volunteer to 14 produce your notes merely because Mr. Turk makes an inquiry.

15 If he wants them, he 'll ask for them.

16 A (Thomas) Thank you, counsel.

17 Q I want to direct you to about two weeks later, June 18 2nd of last year.

19 Were you at a series of meetings in Washington 20 involving your agency and in part the NRC?

21 A (Thomas) It 's not a series of meetings. It was one 22 meeting involving -- there was a series of meetings, but only 23 one of them iruolved the NRC.

24 Q Fine.

O)

(, 25 A (Thomas) Yes, I was.

Heritage Reporting Corporation (202) 628-4888

I O THOMAS - DIRECT 13528 1 Q All right. Were-you in Washington to meetLwith your '

t 2 agency about the development of the agency 's position on the  :

3 contentions in this case?

4 A (Thomas) Yes,.but only with respect to.the Seabrook j 5 beach population. i 6 Q Okay. Would you tell the Board the sequence of 7 meetings that day, and at the conclusion of-the day what '

8 position your agency took as a result of those meetings?

9 A (Thomas) The sequence of meetings was essentially we 10 had a premeeting. I have notes of that meeting which have been

• l 11 produced, and there is a list of attendees at that meeting.

l 12 And we batted around, okay; what are we going to do.

(]) We f

. '13 understand we 're not going to have the Bores paper anymore. -l 14 What does that do for us in terms of a finding of reasonable i i

15 assurance. What does that do for us in terms of compliance  !

I 16 with the A through P standards of NUREG-0654. ,

17 Extended discussion that basically, as I understand, -'

18 came to closure with Robert Wilkerson stating the agency {

19 position that, yes, he understood the argument that J-9 and-20 J-10-M were met, and that in fact he agreed with it, but that 21 that didn 't mean that there was reasonable assurance or that j i

22 the plans complied with NUREG-0654, and that he didn 't believe - 1 23 that they complied with our requirement to come to a-reasonable l l

24 assurance of an adequate level of public safety; to make a

() 25 finding of a reasonable assurance of an adequate level of Heritage Reporting Corporation (202) 628-4888

.i

- - , , , , . .....,_,,..,_-,,._,....,,,_.r,-.._,..,_-_ ..-,....-,.-.-,_,,,,,.,___,~,_-,.,,..e,m, . . . - , . . - - , . . - , . . , , _ . , , , ,

THOMAS - DIRECT 13529 1 .public safety.

2 Following-that meeting --

3 Q. Was'hhr. Wilkerson the highest FEMA official.at that 4 meeting?

5 A (Thomas) No, he was not. Mr. Krimm was there, and 6 he basically endorsed that position.

7 Q .Okay.

8 A (Thomas) I don 't have the exact words, but I ,

9 remember him nodding his head, and I believe he said, tha't 's 10 right, Bob.

11 Q All right.

12 A (Thomas) And then we went into a meeting with the

[]) '

13 officials from the Nuclear Regulatory Commission. And again I 14 believe I have a list of attendees at that meeting, which 15 included Attorney Turk, and several others.

16 Q Just before you go to that second meeting, let me ask i 17 you at the meeting you 've just described if there was any 18 discussion about how difficult a site Seabrook was to deal with 19 for the beach population f rom FEMA 's - perspective?

20 A (Thomas) Yes, there was extensive discussions of 21 that.

, 22 Q What was the substance of that discussion by the FEMA '

23 participants at this what you called premeeting on. June 2?

24 A (Thomas) The substance was we were discussing

() 25 whether or not there were other sites where there were even l

l Heritage Reporting Corporation i (202) 628-4888 j

- - . - .- .. . - . . . . . , . ~ . .

.'O THOMAS - DIRECT. 13530 1 worse emergency planning problems than Seabrook which FEMA had 2 already made findings of reasonable assurance on.

3 And I made the point that that wasn 't the issue in 4 front of us. That if we had problems at other sites, so be it.

5 We could only deal with things one at a time.  ;

6 And Mr. Wilkerson and Mr. Wingo were very active i 7 participants in this especially, and we -- they_really analyzed 8 a number of sites around the country sort of back and.forth in 9 the meeting with them being the primary speakers.

10 Specifically, they talked about, I recal1. San j 11 Onofre, Zion, and St. Lucie. j Q 12 And at that time Mr. Wilkerson said, no, that f

13 Seabrook was really different from those sites and really 14 unique in terms of the magnitude of the risk posed to the i 15 public because of the proximity of the plant to the beaches, l

16 and the time, the evacuation times, and also the nature of 17 those evacuation times; the large amount of Category F. traffic l

18 that would be taking place; essentially the stop and go j 19 traffic; the large number of people who wouldn 't be moving in 20 traf fic who would be in sight of the plant -- that 's l 21 S-I-G-H-T -- of the plant; and the very, very large number of 22 transients who had no access to shelter; and also the large i 4

23 number of people who had no access to what we called winterized 24 shelter. That is to say, shelter or buildings that were

'O 25 deeigned to resiet eir intrusion.

Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13531 1 And I remember we specifically talked about the 2 nature of the beach population at St. Lucie in a conversation 3 led by Mr. Wilkerson who is familiar with that area. I don 't 4 believe I 've ever been there.

5 Q That 's in Florida?

6 A (Thomas) In Florida. And there is a barrier beach 7 there and looks very similar to Seabrook in some ways on a map.

8 And he said, no, the nature of the population on those beaches 9 were difference. The accommodations were designed to resist 10 air intrusion because they 'r-e air-conditioned. And he felt you 11 could clear the beach much more quickly in a radial fashion; 1 1

{} 12 have a couple of alternatives of evacuation routes, as I 13 recall.

14 And that was pretty much the end of that discussion.

15 Q Was anything said to you --

16 MR. DIGNAN: Excuse me. Is that the end of the l 17 answer? I j ust want to be sure the answer -- are you through, i 18 Mr. Thomas?

19 JUDGE SMITH: That 's what he said. That was the end 20 of the discussion.

21 THE WITNESS: (Thomas) As I recall, I --

22 MR. DIGNAN: No, is he at the end of the answer, 23 because I 've got a motion. I just want to be sure the answer 24 is finished.

() 25 THE WITNESS: (Thomas) I think so, yes.

Heritage Reporting Corporation (202) 628-4888

O 13532 THOMAS - DIRECT

~

i MR. DIGNAN: All right. I move to strike the entire 2 dissertation of what Mr. Wilkerson said, or that it be 3 restricted' on admission to simply be a historical reference to 4 things Mr. Thomas heard.

5 I haven 't got Mr. Wilkerson here to cross-examine on 6 nis opinions as to uniqueness of the Seabrook site, and I move 7 to strike it as hearsay.

8 MR. OLESKEY: Well, it 's not hearsay. It 's a part of 9

what the agency deliberations constituted almost exactly a year 10 ago at a point when the agency 's position was dif ferent than it 11 is today. And it 's worth whatever -- all the testimony has 12 been worth from Bores, and Lazarus, and Peterson and

(] j 13 McLoughlin about the evolution of the position. r 14 MR. DIGNAN: No but the opinions of Peterson, Bores, 15 McLoughlin, Lazarus have been subj ect to cross-examination. 16 Wilkerson 's has not been. I move to strike it unless the  ! 17 admission is going to be restricted. 18 MR. OLESKEY: No. Neither is anything, for example, 19 that a RAC member who is not here has said that the witness has 20 said formed a part of his thinking and affected what his agency 21 thought. 22 This is of more probative value, in my judgment, than 23 something a RAC member says, because this constitutes 24 discussions not just of Wilkerson, but of Wingo and others, k) 25 high officials with technical expertise in dealing with a Heritage Reporting Corporation (202) 628-4888 t

O THOMAS - DIRECT 13533 1 variety-of. plans and plants around the country at an important-2 meeting. 3 MR. DIGNAN: Your Honor..it is fundamental that if 4 you 're going to get an expert opinion in, you put~the expert 5 who gave the opinion on the stand and subject him to cross-6 examination. This is a hearsay ~ rendition of a supposed 7 opinion, and apparently being offered for the truth and l 8 expertise of that opinion, and it is hearsay, and it should be l 9 stricken. 10 MR. OLESKEY: It doesn 't prove that St. Lucie is i 11 different or the same as Seabrook. It merely proves that 12 somebody in the agency at that time had a view that Seabrook. (]) 13 posed different problems than other sites which they had 14 examined and found plans which did satisfy ~the reasonable l 15 assurance standard. Very simple. 4 16 (Board confer.) Eli 17 (Continued on next page.) 18 19 20 21 22 23 24 () 25 4 Heritage Reporting Corporation (202) 628-4888 _______-_-________-_____-__-__-___--____-_---__-_________--_----______--_-_--__]

                     .        . . _ .                                          ~   _       _. _

l THOMAS - DIRECT 13534 , T12 i MR. TURK: Your Honor, may I ask for a bench 2 conference for a moment? 3 JUDGE-SMITH: Okay.. 4 (Bench conference.)  ! 5 JUDGE SMITH: The answer is allowed to remain. The j 6 obj ection however is understood. The answer cannot be used to l 7 any extent for the truth of Mr. Wilkerson's statements or his 8 expert opinion, or nonexpert opinion as the case may be. It is i* 9 accepted solely for the purpose of demonstrating what Th. 10 Thomas 's perceptions were as they entered the meeting to [ 11 follow, and will not be available for any findings with respect , f 12 to the subj ect matter, the content of the conversation alluded []) 13 to by Mr. Thomas. I mean, that is, Mr. Wilkerson 's opinion and 14 Mr. Wilkerson 's statements.  ; 15 Does that reflect our discussion? f i 16 MR. OLESKEY: I think so. That reflects your views i 17 very accurately. Obviously. I had a different view. l 18 JUDGE SMITH: No, but I just wanted to know if that l l l 19 was the thing that satisfied -- l 20 MR. OLESKEY: My friends. I 1 21 JUDGE SMITH: Yes. [ 22 MR. DIGNAN: That reflects the Applicants ' obj ection. 23 Your Honor. I 24 On that basis the obj ection is withdrawn.  ! () 25 MR. OLESKEY: May I proceed? Heritage Reporting Corporation (202) 628-4888

O THOMAS - DIRECT. 13535 1 JUDGE SMITH: Yes. 2 BY MR. OLESKEY: 3 Q You were about to~ discuss, Mr. Thomas, the second of 4 the meetings on June 2nd; namely, the one between-your agency 5 and the NRC. 6 Would you turn your testimony now to that, please? 7 A (Thomas) Yes. 8 Q Would you tell us who was there and what was said? 9 A (Thomas) I could tell you better who was there.if I 10 had my notes. If you want me to. I can try and recall who was 11 there independently. 12 Q Well, give me your best shot. ({} j 13 A (Thomas) Okay. l 14 Q And I'll decide whether I want you to go to your 15 notes. 16 A (Thomas) Attorney Turk, Dave Matthews, Frank Congel, 17 and those are the participants I remember from the NRC. 18 From FEMA: Myself, Bob Wilkerson. Craig Wingo, Bill 19 Cumming, I 'm not sure if Mr. Flynn was there or not without my 20 notes, and I 'm not sure if Margaret Lawless was there or not' l 21 without my notes. , 1 22 Q This is adequate for my purposes. 23 A (Thomas) Fine. 24 Q Junt so we 're clear of the hierarchy, at this time 4 () 25 Mr. Wilkerson reported to Mr. Wingo, youve said? Heritage Reporting Corporation (202) 628-4888

     . -.-. ~ -.       .- - - ,       - .- .-.-- . -.-- -. ..,-...-,..--.-                      . _ . - - . . . . . . - ~    , . . - - . .

i i f rs U. THOMAS - DIRECT 13536  ; 1 A (Thomas) No, sir. Mr. Wilkerson -- Mr. Wingo 2 reported to Mr. Wilkerson and -- 3 Q Mr..Wilkerson reported to~Mr. Krimm. 4 A (Thomas) -- who reported to Mr. Krimm. i 5 Q Mr. Krimm reported to Mr. McLoughlin, j 6 A (Thomas) That is correct. 7 Q Good. Okay, what was said at this -- l 8 MR. DIGNAN: Your Honor, I don 't like to always wind 9 up the fall of the press, but this large camera is slowly 10 driving me crazy. Click, click, click, click. Can tne , l 11 photographer move, or back up? , {) 12 He 's got a long lens, I notice. It is very 13 distracting to try to listen to this testimony and have that 14 going constantly. , 15 JUDGE SMITH: Would you mind standing over here?  ; 16 We 've found this is the least intrusive place. 17 Now you did it; you 've hurt his feelings. l 18 Claughter.) f 19 JUDGE SMITH: You are welcome to be here and take a  ; I 20 spot. l 21 THE PHOTOGRAPHER: I got what I need. I 22 JUDGE SMITH: Okay. I 23 MR. DIGNAN: Thank you very much. 24 BY MR. OLESKEY: l ()

• 25 Q Would you tell us who said what at the meeting about Heritage Reporting Corporation (202) 628-4888-6

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                --m-- ,.,%---.-,,-,rc.--     y.r--,   p,_,, yy  ---,--.-----w    -y.,w,,..,,-wm.          %   ,...ww.._y-,,m..w,,          ,,     ,,q,-.  .-,,,,-,,p.,       r ,      - s.

THOMAS - DIRECT 13537 1 the position of the two agencies on the beach population as 2 well as you can recall it? 3 A (Thomas) I 'm having a hard time without my notes, 4 but as well as I can recall -- 5 Q Well, I'm willing to have you look at your notes if 6 it would speed it up. 7 A CThomas) Well, let me tell you what I recall and 8 then we can go from there. 9 Q All right. 10 A (Thomas) Basically Bob Wilkerson did most of the 11 talking for the agency. Dick Krimm would chime in from time to 12 time. I didn't have much to say at all. {]) 13 Essentially they laid out the concerns that we had 14 with respect to the beach population at Seabrook. They meaning 15 Mr. Krimm and Mr. Wilkerson, with Mr. Wilkerson doing most of 16 the talking. And said that we didn't understand how we could 17 come to a finding of reasonable assurance of an adequate level 18 of public safety on this issue considering the factors where 19 which were later memorialized in Pages 38 and 39 of our 20 Appendix A. 21 The NRC response, as I recall it from Mr. Congel, 22 was, in essence, the consideration of the containment isn 't 23 needed for a finding of reasonable assurance. There was 24 discussion by Attorney Turk that I remember reading in my () 25 notes. I raally have no independent recollection of this. But Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13538 1 it is essentially that if you have compliance with NUREG-0654 2 that is the same thing as reasonable assurance of an adequate 3 level of public safety. 4 And I really don't recall anything much else at the 5 meeting. It was essentially left on the basis that the two 6 agencies were in disagreement with each other. 7 Q Okay. Did the FEMA people then reconvene and have 8 their own concluding meeting? 9 A (Thomas) Yes. There was another meeting, a smaller 10 meeting of the FEMA staff with Mr. Krimm, Mr. Wilkerson, myself ' 11 and Dave McLoughlin. There may have been other people present 12 there, I don 't recall who else. And we went through the (]} 13 premeeting and the results of that, and went through the NRC, , 14 the results of the NRC meeting and the arguments that had been 15 made by the NRC. And again with Mr. Wilkerson doing most of 16 the talking. 17 And I believe Attorney Flynn was also present at this 18 meeting, come to think of it. Just now it flashed in my head. 19 And explained to Dave McLoughlin what the argument was which 20 Mr. Wilkerson encapsulated, and I agreed with him, that as we 21 understood what NRC was saying is that if you look at the exact ' 22 words and letters of NUREG-0654, Part 2 A through P. J-9, 23 J-10-M especially, and the J standard as a whole, that if you 24 just looked at that in very narrow confines, that, yes, that () 25 language had been complied with by the New Hampshire plans, or Heritage Reporting Corporation (202) 628-4888

(:) THOMAS - DIRECT 13539 1 could be readily complied with. We still had the problem of 2 the transient-dependent transients. 3 And that we collectively did not find that persuasive 4 at all. And Mr. McLoughlin said, yes. we 're in the business of S reasonable assurance of adequate safety. If there:is still a 6 risk, and you people still think there is a risk to_the public, 7 so be it. 8 And then I was given some directions as to the 9 preparation of what became Pages 38 and 39 of our position on 10 contentions. 11 MR. DIGNAN: Obj ection and move to strike. So much 12 of the answer has said, we did not find this persuasive at all. (]) 13 The witness has not established that the other people told him 14 one way or the other that it was persuasive or nonpersuasive. 15 If that can be established. I will drop the obj ection. 16 BY MR. OLESKEY: i 17 l Q Would you back up and put words in the mouths of 18 specific people to meet the obj ection, please? l 19 A (Thomas) Yes. l 20 Q To the extent you recall it. 21 A (Thomas) The recollection is basically that Bob 22 Wilkerson was doing the talking, and Mr. Krimm and I were i 23 agreeing with him. Mr. Wilkerson has an amazing gift foi 24 encapsulating and summarizing meetings. () 25 And that 's about all I can say. That 's the we. It d i Heritage Reporting Corpora't ion (202) 628-4888

   . . _ . . _ , _ . ,     . . _ . . .   . _ . , , _ - . . ~ . _ - - _ _ _ . . _ . . .                    . _ . . - . . _ . . _ _ _ _ _ _ , . - _ _ _ _ . _

d O THOMAS - DIRECT 13540 1 was Bob Wilkerson saying it, and Dick Krimm and I agreeing with  ! 2 him, and I don't really recall anyone else .saying anything at 4 3 that point other than Mr. McLoughlin responding, fine,. so be 4 it.  ! 5 And .then I was given specific directions as' to how to. E proceed with the preparation of a. FEMA position on the beach 1 i 7 population.  ; 8 MR. OLESKEY: I 'm going to go forward because I think { 9 that meets the obj ection. l 10 BY 1R. OLESKEY: l 11 Q What were the instructions you were given about the {) 12 preparation of the position? t 13 A (Thomas) Number one, that it was -- it was to, and , 14 perhaps most important, that it was to be in Washington, 15 preferably the afternoon of the 3rd, the next day. And so it t l 16 was to be done very quickly. That it was to reflect the  : 1 17 discussions that we 'd had. And it was emphasized to n I was l 18 to totally stay away from J-9 and J-10-M; that we were not 19 going to get into that squabble abcut whether the exact words 20 and letters of J-9 and J-10-M were met, but rather, to go not 21 to the Part 2, A through P standards of 0654, but to the front 22 part of 0654 for the parameters of emergency planning, the 23 nature of the release, the time to release. 24 Couple that with the site-specific situation at (]) 25 Seabrook, and then come to a conclusion following our i Heritage Reporting Corporation (202) 628-4888 i l

I THOMAS - DIRECT 13541. 1 regulations. 2 JUDGE LINENBERGER: Who was giving you these 3 instructions and guidances? 4 -THE WITNESS: (Thomas) There were several people 5 sitting around doing it. .I-can tell you it was not Wr. 6 McLoughlin. I mean, Mr.- McLoughlin was sitting there and 7 specific guidance and instructions being given to me. My  ; 8 recollection is, and it is hazy at this point and I don't have 9 good notes on this, and I can even explain why I don't. if you 10 want to hear. But my recollection is Bob Wilkerson is doing 11 most of the talking. Joe Flynn is chiming in with specific 12 points, and I believe-it was Joe Flynn that said, you 're (]) 13 absolutely to stay away from J-9 and J-10-M. 14 I wanted to include that discussion in the text, and i 15 I was told, no, absolutely not. We 're not going to get into. a l 16 fight with people about J-9 and J-10-M. It 's not worth it. 17 And Mr. Krimm was occasionally adding something in in U 18 the way of concurrence. And I don 't remember what specific 19 words Mr. McLoughlin said, but we were in his office and he was e 20 nodding his head or otherwise giving approval to the thrust of 21 the conversation which was, of course, important to all of us 22 that he was signing off. Since this was going to be a FEMA 23 position, that it was under his' authority that we were taking 24 it. () 25 And then we ended the neeting, and McLoughlin said, Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13542 1 okay, let 's go, and we did. 2 BY MR. OLESKEY: 3 Q Did you go back to Boston that night and start 4 drafting? 5 A (Thomas) I started drafting at the airport, and then 6 on the flight, and continued then on that night, and had it 7 typed that morning. 8 JUDGE SMITH: Were you told the conclusion to arrive 9 at, or the process by which you had to arrive at your 10 conclusion? 11 THE WITNESS: (Thomas) Both. 12 Do you want me to explicate that again? (U~T 13 I was told basically what to take into account; that 14 we were going to go to Part 1 of 0654, the -- that sets the 15 parameters for emergency planning. And this is, you know, 16 basically what I -- I did what I was told to do, and that 's . 17 what became Pages 38 and 39. I just fleshed out what I was 18 told to do at that point. , 19 I was also told to develop a, as it were, a 20 chronology of how we got to that point, which was then June 2, 21 1987, of -- we had sent out the December '85 memo, and we had 22 gotten certain responses back, and we had gotten a response j 23 from the NRC, and that response was -- we were told we -- et 24 that point we had just been told we could no longer rely on it. () 25 but hadn 't yet -- you know, we hadn 't gotten the replacement i Heritage Report ing Corporation (202) 628-4888 , l

THOMAS - DIRECT 13543 , 1 document yet. 2 And that 's about all . That was an additional chunk 3 that I remember being told. 4 BY MR. OLESKEY: 5 Q Did you get the document down to Washington on the 6 wire the next afternoon, the 3rd? 7 A (Thones) I 'm not sure. If I recoll correctly, there 8 was some problem with the fax that day. If I recall correctly, 9 and I am refreshed somewhat in my recollection by looking at or 10 fax logs, that what I had to end up doing was getting it into a 11 Federal Express for delivery at nine o ' clock the following

'T  12   morning, the morning of the 4th.

(Q 13 Q Okay. 14 A (Thomas) But the answer is, yes, they had it in 15 Washington the morning of the 4th. 16 Q Let me show you a document that has at the time, the 17 handwritten reference. Edward Thomas draft to response to 18 Contention. 6-3-87, sent to HQ for review by Flynn, and 19 something else, and see if that can be identified by you as 20 your draf t of the testimony sent to Washington as you 've j ust 21 testified on the 4th, last year, for review by your agency. 22 A (Thomas) Yes, it is. 23 MR. OLESKEY: I 'm going to distribute this. Judge, 24 and mark it as I guess now Exhibit 49 for identification. ( ') 25 JUDGE SMITH: Well, it 's 50. Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13544 1 MR. OLESKEY: Fifty, all right. 2 JUDGE SMITH: Forty-nine was identified and not 3 offered. The mark keeps its place. Fifty should be the one to 4 keep the computer from getting confused when it looks for 5 exhibits. 6 (The document referred to was 7 marked for identification as 8 Massachusetts Attorney General 's 9 Exhibit No. 50.) 10 JUDGE SMITH: I assume you 're following the rule of (D N/ 11 giving three copies, providing three copies? 12 MR. OLESKEY: Yes, Ms. Keough has got that down cold 13 now. 14 JUDGE HARBOUR: But including the previous one which 15 never got a number? 16 JUDGE SMITH: No, he doesn 't have to of f er -- he ' 17 doesn 't have to give three copies if Mass. AG 49.- 18 MR. OLESKEY: Okay. 19 JUDGE SMITH: Forty-eight, however. 20 MR. OLESKEY: Okay. I think we 're all set. 21 MR. TURK: Are you going to give us copies of 48 as 22 well? Are you making copies of those? l l 23 MR. OLESKEY: Am I going to give you a copy of a l () 24 document I 'm not of fering? l l 25 Not particularly, but you can have it, I guess. l l l

(202) 628-4888 THOMAS - DIRECT 13545 1 JUDGE SMITH: Forty-nine, you didn 't of f er. Forty-2 eight, you did. 3 MR. TURK : Well, that 's the big document that the 4 Board indicated that you want a modi.fication of, FEMA-REP-3. 5 JUDGE SMITH: Forty-eight is the one that -- 6 MR. O L E T '. E Y : If you don 't have REP-3, you 're going 7 to get it right now, Mr. Turk. 8 There you are, REP-3. 9 MR. TURK: I appreciate that. It 's dif ferent f rom 10 what I had been given as a deposition exhibit. rx kl 11 MR. OLESKEY: That 's the copy that we put into 12 evidence today. 13 JUDGE SMITH: You can put it in your collection of 14 REP-3s. 15 Don 't forget, you have a little homework to do on 16 this one. 17 MR. OLESKEY: Yes. Ms. Keough tells me it is the 18 identical copy she believes that was marked at the deposition, 19 for whatever that 's worth. 20 BY MR. OLESKEY: 21 Q Mr. Thomas, af ter you sent down what we 've marked as 22 50 for identification, did you have any further' involvement in 7 23 drafting what became the final testimony? () 24 A (Thomas) Yes. 25 Q What became the final response to the contentions?

L I) THOMAS - DIRECT 13546 - 1 A (Thomas) Yes, yes, I did, f 2 Q What was your further involvement, sir?  ! 3 A (Thomas) I was on a phone call with Attorney Flynn 4 and someone else, who I believe was Margaret Lawless, but I 'm' ] 5 not absolutely sure. I j ust remember Attorney Flynn, and I 'm i i 6 fairly sure about Margaret Lawless. And this would.have.been  ! 7 probably the mid to late morning of the 4th, talking about , 8 changes that had to be made on this before it was served out of 9 our office in Boston. t 10 Q All right. And did Mr. Flynn tell you that he wanted  ! 11 to make some changes, or the agency wanted to make some changes I i 12 in what you had sent down? [} 13 A -(Thomas) Yes. Other.than typos and semantic i i 14 corrections, if any, were there any changes that affected the l l 15 substance of what you sent down to Washington?  ! l 1 16 A (Thomas) Whether it affected the substance or not,  ! i 17 I 'd rather not characterize it, j , 18 Q All right.  ! 19 A (Thomas) But there were changes. f i 20 Q What changes did Mr. Flynn tell you the agency wanted j 1 21 to make? That 's fine.  ! 22 A (Thomas) Two The primary portion is on the first . 23 page starting in the third paragraph, "In December 1985," I  ! 24 believe that sentence, "In December 1985," through the end of () 25 that sentence, "44 CFR 350", remained in. But most of the rest l l i Heritage Reporting Corporation , (202) 628-4888 i.

(') \_/ THOMAS - DIRECT 13547 1 of this was taken out with respect to the chronology of how we 2 had gotten to where we were on the beach population. 3 In other words, the bulk of the first page was  ; 4 deleted, a considerable portion of the first page. 5 Q Why don 't you j ust let me show you, to help the Court 6 and all of us, what was actually filed alongside. Let me just 7 mark this 50 for identification. I think that will refresh t 8 you. - 9 A (Thomas) Tha nks. 10 Q There is the response and here is Exhibit 50. 11 (Pause.) 12 (Continued on next page.) (]A2 13 14 15 16 17 , 18 19 20 21 22 1 23 24 () 25 l l i Heritage Reporting Corporation l (202) 628-4888 i _ J

Heritage Reporting Corporation (202) 628-4888:

O THOMAS'- DIRECT 13548- t t/13 1 THE WITNESS: (Thomas) Okay. Thank you. I stand 2 corrected. The change' starts in1the third paragraph, further 3 down than what I was suggesting, with the sentence that says:

4 "It was our intention." That through the end of the third 5' paragraph on the r,econd page was. Mr. Flynn directed I1 chop 6 that out. 7 BY MR. OLESKEY: 8 Q So that was about a page that went out there?  ! i 9 A (Thomas) That 's correct. 10 Q Okay. You said there was a second change that you  ; i 11 were told should be made? 12 A (Thomas) Again, and not necessarily substantive, but [) 13 on the third page in the last paragraph on the third line. 14 Q The paragraph beginning, "Therefore using the , l 15 standard guidance?" 16 A (Thomas) Yes, that is correct. 17 JUDGE SMITH: Would this be a good time to take a l 18 break? 19 MR. OLESKEY: Let me just finish this and offer the 20 document and it will be a great time. Thank you. 21 THE WITNESS: (Thomas) Mr. Flynn told me that the 22 word "trapped" would be inflammatory and I should replace it 23 with something, and we replace it with "could be unable to 24 leave." 25 (]) Heritage Reporting Corporation , (202) 628-4888 l

3 8 .i THOMAS - DIRECT 13549 [ 1 BY MR. OLESKEY: l 2 Q And with those changes was the document put'into { 3 final shape and filed with the. Board? l 4 A (Thomas) Those are.the changes that I recall. There 5 may have been, as you said.-typographical changes and other  ! 6 changes that I don't now recall which I believe were minor.  ! 7 But, yes, that 's -- ' 8 JUDGE SMITH: That 's why we take the break and he can f 9 make his -- I mean, if he 's j ust preparing right on the spot. 10 MR. OLESKEY: Okay ~. I'll let him come back after the 11 break and add anything he wanted to. { 12 JUDGE SMITH: Okay. (]) 13 MR. OLESKEY: I just wanted to finish that line. l i ) 14 JUDGE SMITH: All right. l 15 MR. OLESKEY: And I do want to offer the document to 16 show what the witness says the Chairman of the RAC thought, in  ! 17 essence, recommended to the agency: (b) the statement of l l 18 position for comparison with the position that was finally j 19 given. 20 MR. DIGNAN: Well,- let 's get very clear what the i i 21 purpose of this offer is. It is not being offered for the I 22 truth of the matters contained, but rather for historical  ! 23 purposes, Mr. Oleskey l 24 MR. OLESKEY: Yes. Then I also want to show, since  !

() 25 there 's been questions about various documents that FEMA  !

i L Heritage Reporting Corporation (202) 628-4888

  ,     . ..  ~~ -                    _.        - -                  -              . - -

e I l i () THOMAS - DIRECT _ 13550 j i authored and who made changes and why wasn't the whole story l 2- laid out, that this guy, Ed Thomas, at this time in June [ 3 proposed one explanation which does, in my mind, answer some j 4 questions I think the Board had, and for whatever reasons his i 5 headquarters said, delete that, go with a thinner version which  ! 6 is the version that we have.- [ 7 So those two reasons. Mr. Dignan. 4 8 MR. DIGNAN: All right. That 's fine. In other l J 9 words, forgetting my characterization, it is.not offered for [

10 the truth of the matters contained.  ;

i 11 MR. OLESKEY: Well, you 've got the witness. He { 12 thought it was a good -- ({} . 13 MR. DIGNAN: Mr. Oleskey, just tell me the purpose of  ; 14 the offer. 15 MR. OLESKEY: I 'm trying to answer your question. I 16 counsel, don 't be intemperate with me, please. This witness. I i i 17 take it, who 's here for examination thought that was a good  ! l 18 summary f rom his perspective of his agency 's position. His j 19 agency, through some people in Washington disagreed. Whatever' ' 20 that adds up to may be an additional or third point for which  ! i 21 the Board may find some comfort in the document.  ! i

,            22               JUDGE SMITH:    The answer is, yes, Mr. Dignan, it is.      !

i 23 MR. DIGNAN: Are you of fering -- I 'm not sure it is. l 24 Your Honor. Con I ask Mr. Oleskey to answer that question, is () 25 he offering for the truth of the matters contained or is he i l Heritage Reporting Corporation  ! (202) 628-4888

O THOMAS - DIRECT 13551 1 offering it for a restricted purpose -- 2 JUDGE SMITH: I t 's -- 3 MR. OLESKEY: It 's not -- 4 JUDGE SMITH: He does not have to -- Mr. Oleskey does 5 not have to of fer this docuraent for any particular purpose in 6 this context. He 's of f ering the witness, if the witness 7 believes it, he doesn 't have to sponsor it any further. 8 MR. DIGNAN: The witness hasn 't said he believes it 9 yet, that 's my point. 10 JUDGE SMITH: Well, the witness says that he believes 11 what he did responded to instructions --

 /~T 12            MR. DIGNAN:   Correct.         He was told he was instructed V

13 to draft a document. He sent it down to Washington. He says 14 he was told to make corrections in it, et cetera. If he wants 15 to give thin to Mr. Thomas and say, Mr. Thomas, do you adopt 16 this under oath, and Mr. Thomas says, yes, then he can offer it 17 for the truth of the matters contained. Until he does that he 18 shouldn 't be allowed to -- 19 JUDGE SMITH: Mr. Thomas, when you sent this down 20 there, did you believe it? 21 THE WITNESS: (Thomas) Yes. 22 MR. DIGNAN: Does he still believe it, that 's the 23 question. 24 JUDGE SMITH: Well, that 's another reatter. () 25 MR. DIGNAN: Well, Your Honor, 4 f you 're taking for f Heritage Reporting Corporation (202) 628-4888

~

o THOMAS - DIRECT 13552 1 the truth of the matters contained, the witness must. testify he 2 believes it. 3 JUDGE SMITH: -Well, that 's right. You cover that on 4 cross-examination. In the meantime it 's accepted for the .f act i 1 5 that on June the 3rd this was his judgment as to what the 6 testimony should have been.  ! 7 MR. FLYNN: I 've been -- , 8 MR. DIGNAN: I _ don't have any problem with it _ for  ; 9 that purpose. Your Honor _ that 's my point. 10 JUDGE SMITH: All right. So we 're fine. 11 MR. DIGNAN: I don't want to examine on it on that 12 basis. But as I understood Mr. Oleskey he 's forcing it -- ({} 13 JUDGE SMITH: He prevailed. l 14 MR. FLYNN: I have to make a brief comment, I 've been 15 drawn into this peripherally. Mr. Oleskey made a comment in 16 answering Mr. Dignan a moment ago that Mr. Thomas was j 17 instructed to delete certain things because the agency didn't 18 agree with them or didn't accept them as accurate. And that 19 has not been established. 20 MR. OLESKEY: Well, what I said was, you were told 21 for whatever reason by your agency in Washington to delete the 22 material referred there. 23 MR. FLYNN: Well, it was an adoitional comment. But 24 if we can leave it at that, fine, I 'll withdraw it. () 25 JUDGE SMITH: All right. On the top there 's a legend Heritage Reporting Corporation (202) 628-4888

l 1 THOMAS - DIRECT .13553 ' 1 Edward Thomas 's Draf t, did you put that on there, Mr. Thomas?  ! 2 THE WITNESS: (Thomas) In preparation.for this  ! l 3 hearing. { 4 JUDGE SMITH: For today 's hearing? ' 5 THE WITNESS: (Thomas) Yes.  ! 6 JUDGE SMITH: All right. Let 's creak until 3 ,.

7. o 'c lock. Attorney General Exhibit oO 1: re eived.  !

8 (The document referred.to having 9 been previously marked for  ! I i 10 identification as Massachusetts  ; 4 i ) 11 Attorney General Exhibit 50 was [ i 12 received in evidence.) (]) l 13 (Whereupon, a brief recess was taken.) l 14 BY MR. OLESKEY: 5 15 Q Mr. Thomas, I take it f rom your testimony j ust before t 16 the break that the document you sent down to Washington last 17 June 4th would be marked Mass. AG Exhibit 50, that was in your  ! 18 judgment an accurate summary of where you thought your agency j 19 was on the beach population issue at that time; is that right? 20 A (Thomas) Yes, with one small explanation. l 21 Q Okay. 22 A (Thomas) It was where I thought they were or where 23 they ought to be. And the explanation is with respect to the 24 use of the word "trapped" in the last paragraph. No one () 25 suggested to me that that be used. It was -- I put that in Heritage Reporting Corporation

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P l k THOMAS - DIRECT 13554 1 there of my volition and based on my analysis, and so I don 't 2 think it would be fair to say that -- 3 Q Did you put it in there because you -- I understood 4 it was some kind of term of art in nuclear planning or was it 5 just good old descriptive trap as we 'd ordinarily understand 6 it? 7 A (Thomas) I don 't know it as being a term of art in 8 nuclear planning, but it is a term which is used in evacuation 9 planning. And I felt it was a correct description of the 10 situation as it would result in a fast breaking accident at 11 Seabrook. () 12 Q And if you were asked today to do this again in the / 13 circumstances which existed last June would you send down the l 14 same text you sent down then?- 15 - JUDGE SMITH: Whoa, I have trouble with that one. 16 Necessarily he would, you know -- would he send down 17 today -- 18 MR. OLESKEY: This is tautology. F 19 JUDGE SMITH: Yes. 20 MR. OLESKEY: Well. I 'm j ust trying to doel with what 21 I understood that your last comments were that, as a ruling, 22 which is that this is some kind of historical document only and 23 doesn 't represent Thomas 's views. 24 JUDGE SMITH: Well, then ask the question, based upon () 25 what you know today would you still advocate this as -- l Heritage Reporting Corporation (202) 628-4888

        )

THOMAS - DIRECT 13555 1 MR, OLESKEY: Well, that gets into a level of-2 complexity that deals with everything that 's happened between

3. June'2. '87-and today. To'got this in the. record as his view 4 of where the agency was or should be last June. I think the i 5 only operative question was, was it your best judgment - was it 6 accurate, did you send it down to be relied on, which is all I 7 said.

8 JUDGE' SMITH

Yes.

9 MR. DIGNAN: And tut so testified ' and it 's in for that 10 purpose, as I understand it, to show his view. 11 MR. OLESKEY: All right. That 's what, I wasn 't clear (} 12 about. 13 JUDGE SMITH: Yes, it 's in for that purpose. My 14 concern with your last question is it necessarily then, if f 15 everything were the same then up till the time you sent it. 16 MR. OLESKEY: I was proceeding from a misapprehension 17 about what your concern was, Judge Smith, so I don 't need that 18 question. 19 BY MR. OLESKEY: 20 Q Right after the final testimony was produced and 21 filed did you get a letter from or a meno from Mr. Flynn 3 22 summarizing his views on the work that you and your staff had 23 done in producing the statement?. t j 24 A CThomas) Again, it was not testimony at that point, () 25 it was the FEMA response to contentions -- FEMA position on the Heritage Reporting Corporation (202) 628-4888 _ _-_- - _ __..._ _.._~ _.._ _._ , _. ,,- _ _ -.__ _ . _ . _ - ___,_--.. _ . _ .-._. -- _ _.

1 () THOMAS - DIRECT 13556 l i l' contentions.  ! t 2 Q Well, he_ refers to it as testimony, but in any event,  ! f 3 it was the filing of June 4th? i 4 A .CThomas) Yes. Yes, I did get a letter'following  ! I 5 .that. , 6 Q All right. Let me see -- let me show you a document f

,                                                                                              5 7   dated June 5th headed "Memoranda for Edward A. Thomas. " and             j i

8 then Ed struck out from Mr. Flynn. l I 9 MR. FLYNN: May I inquire into the purpose of this  ; i 10 line. l 11 MR. OLESKEY: Yes. The purpose of this line is to 12 show that on June 5th, '87 Mr. Flynn sent a memo to the witness {]) 13 saying, you did a terrific job and so did you staff in getting ( 14 ready for the filing and carrying it out, and it 's in the i 1 15 tradition of the agency. 16 I 'm going to ask that be markea momentarily as Mass.  ! 17 AG Exhibit 51 for identification. i 18 (The document referred to l t 19 was marked for  ; 20 identification as l 21 Massachusetts Attorney 4 4 22 General Exhibit 51.)  ! 23 MR. FLYNN: I'm quite willing to acknowledge Mr. l {' 24 Thomas 's ef fort, but I'm not sure I understand the relevance of l l () 25 this. I l

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O THOMAS - DIRECT 13557 1 MR. OLESKEY: Are you making an objection. Mr. Flynn? 2 JUDGE SMITH: No, I think that he 's entit led to 3 understand the -- without making obj ections, try to understand 4 where the question is going. 5 MR. OLESKEY: I just gave an explanation I thought 6 was very adequate that last year on June 5th following the 7 production of the work that 's j ust been testified to and the 8 work that preceded it, the lawyer in the agency who was working 9 with the witness commented him and his staff for their ' 10 thoroughgoing work. I 'm not going to -- I in only summarizing 11 it generally, you have it in front of you. 12 I 9n going to of f er it on that basis to show something []} l 13 about the esteem in which the witness and his work were held by 14 the agency as of that date. 15 MR. FLYNN: We endorse the document. 16 MR. DIGNAN: Has it been of fered? I didn't hear an , 17 offer. , l 18 JUDGE SMITH: Well, it 's going to be of fered in a , 19 moment. 20 MR. OLESKEY: I j ust said it 's going to be of fered. 21 JUDGE SMITH: See, there was an inquiry as to its ) 22 relevance. l 23 MR. DIGNAN: Could we get the offer and then if there j 24 are going to be obj ections, we can obj ect. I () 25 MR. OLESKEY: Considering I in of fering it, Mr. Heritage Reporting Corporation (202) 628-4888

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.I - t f ([) THOMAS - DIRECT 13558 1 Dignan, Mass. AG Exhibit 51. , 2 MR. DIGNAN: Obj ect , it 's irrelevant. And I I 3 certainly obj ect 'that the purpose as to show the agency was l i 4 thrilled. All that tells me that Flynn was thrilled. j i 5 MR. OLESKEY: I --  : 6 MR. DIGNAN: And whether Flynn was thrilled or not ! is j

                                                                                                                                                                             ?

7 irrelevant.  ! 8 MR. OLESKEY: Well, you know, I 'm 'doing two f 9 things -- l 10 JUDGE SMITH: Does he.have a low level of being -- l 11 low threshold -- { {) 12 (Laughter) ] 13 MR. DIGNAN: Your Honor, when you practice in the  !

!             14         private side the CEOs don't care what the lawyers- do, Your                                                                                         !

15 Honor. 16 MR. OLESKEY: It only has to do two things, put my 17 case -- our case in for the witness and deal of the issues of  ! 18 the witness 's professionalism, so Mr. Barshak wouldn 't have to.  ! i 19 This, at least, falls in the second category if not in the  !' i i 20 first. And I think frankly it falls in both. 1 i 21 MR. BARSHAK: And that 's why I 'm leaning closer to  ! l 22 the microphone. I don 't mind standing here, but I think when a j i i 23 piece of paper is a compliment to my client that 's being i i l 24 offered, I think I have standing to say, I hope it gets in. l I (]) 25 JUDGE SMITH: Well, the real question, we can't i Heritage Reporting Corporation (202) 628-4888 I

r i i ( -13559 THOMAS - DIRECT

1 receive documents solely for the purpose of establishing Mr.  ;

2 Thomas 's bona fides as an employee here. - [ 3 I thought it was relevant' as you're trying to  ! 4 establish here, as I understand it, that the position arrived 5 at by Fl:MA and offered in response. to-the Board's direction and  ; 6' the response of the contention and they are submitted as 1 7 proposed testimony was regularly arrived at.  ; ) i 8 MR. OLESKEY: Sure.  ! i 9 JUDGE SMITH: At institutional acceptance, and I i 10 therefore has some momentum.  ! I 11 MR. OLESKEY: Sure.  : 12 JUDGE SMITH: And for that purpose it 's just j [} 13 received. This has been thread of_their case all'along. i 14 MR. TURK: Your. Honor. I have a problem. If you.  ! i 15 start admitting evidence about a person's professionalism, then 3 16 aren't we really opening the door to see if there are other 17 documents or other facts that might be elicited that go the I 18 other way. i f 19 MR. OLESKEY: Well, that door was opened a long time I 20 ago, Mr. Turk. . 21 JUDGE SMITH: We 're not interested in the untold d ' 22 hours that he spent, we 're not reading it for that, we 're not l l l 23 reading it for anything else. l 24 MR. TURK: Your Honor, thc issues here in this  ; l () 25 proceeding relate -- ( i i Heritage Reporting Corporation  ; (202) 628-4888 ,

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                    . _ _ _ . . , _ . , . . . - _ _ _ _ _ _ _ _ , , _ . _ , , - _ . . _ , , , . . - . - .        . _ , _ _ _ _ _       ~ _ ,_. _

O THOMAS - DIRECT 13560 1 JUDGE SMITH: This is some evidence. And Mr. Thomas 2 who was assigned to the matter, FEMA 's Of fice of General 3 Counsel -- 4 MR. TURK: Your Honor may recall the FEMA position on 5 contentions was exceeding long, it was some 70 or so pages, I 6 forget the exact number, it was single spaced, it was a very 7 lengthy document. It seems to me that this letter relates to 8 the whole of that document that has nothing to do in particular 9 with the beach population issue. 10 JUDGE SMITH: Well, if it had -- relates to the whole 11 of the document, necessarily relates to a part of the document. {) 12 MR. OLESKEY: You 're getting the benefit of 90 13 percent of it. Mr. Turk, which you like. 14 MR. TURK: I assume you -- 15 JUDGE SMITH: The problem is not relevance. The 16 relevance is tenuous but it 's there. It 's how important it is. 17 how much weight we will assign it. We 're not receiving it -- l 18 with that we 'll accept it. 19 MR. OLESKEY: Thank you. 20 (The document referred to having , 21 been previously marked for 22 identification as Massachusetts 23 Attorney General Exhibit 51,  ; 24 was received in evidence.) i () 25 l l Heritage Reporting Corporation I (202) 628-4888 l

I' 4 O THOMAS - DIRECT 13561 f 1 BY MR. OLESKEY: j t 2 Q Mr. Thomas, moving on, as we must on the 5th of 6th 3 right after the filing of the response to contentions, did you 4 get -- was there a phone call to you from somebody at the ' 4 5 headquarters in Washington concerning the State of New  ! 6 Hampshire 's reaction to the FEMA filing date of June 4th? j 7 A (Thomas) No, sir, but there was a phone call to my  : 8 supervisor. Henry Vickers. 9 Q Okay. i

                                                                                             =t 10          A     (Thomas)         And I was brought in on a conference call. l 11          Q     Okay.      When you were brought in to the conference         l 4

12 cal 1. who was Vickers ' talking with and what was the subj ect of i 13 the conversation?  ! l l 4 14 A (Thomas) My best recollection is that he was-talking 15 with Dave McLoughlin and others, and I don 't remember i l 16 specifically whom, it would have been Mr. Krimm or Mr. K rimm 's l 1 I 17 staff. And basically it was that Governor Sununu had called. . 18 if I remember correctly, looking for General Becton, and then  ! i i 19 he talked with Dave McLoughlin and said he was concerned or 20 upset about the FEMA position that had been filed, and I ' i 21 concerned that he hadn't heard about it from us first, and that l 6 22 he had heard about it from newspaper reporters or something I 23 like that. And some type of media reporter. And that there i l 24 was clearly a misunderstanding on the Governor 's part as to j O 25 what we had said and what we hadn 't seie, and that t r-re was a { l

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THOMAS - DIRECT 13562 1 need to have a clarifying letter sent out as soon as humanly i 2 possible. 3 And at that call Robert Wilkerson agreed to take a 4 first draft of the letter, this is a Friday. 5 Q No, this is after the call? 6 A (Thomas) No, this is -- I believe this is right 7 during the call. Wilkerson -- now I 'm realizing Wilkerson had 8 to have been part of the conference call, says that. I 'l l t ake 9 a fresh crack at that over the weekend. And I pointed out that 10 I was going to be in Seattle at a conference and since it was 11 very important agency business that I be there and plus I 12 wanted to go. I didn't want to miss the conference to write a

)

13 letter so they were going to telefax it to me out in Seattle 14 and we would take it f rom there. 15 Q Okay. And so the following week or that weekend did 16 you get a, by telex, a copy of a draft letter to Director 17 Strome purporting to respond to the concerns Governor Sununu 18 had expressed and Mr. McLoughlin? 19 A (Thomas) The following week. yes, that Monday I 20 believe. 21 Q What happened to that draft of the letter that Mr. 22 Wilkerson faxed or telexed out to Seattle to you? l 23 A (Thomas) I still have a copy of it, t 24 Q In terms of the evolution of a draft toward a final  ! () 25 product which in fact is in evidence as Exhibit 35. Heritage Reporting Corporation l (202) 628-4888 '

t THOMAS - DIRECT 13563 i Massachusetts Attorney General, what happened next? 2 A (Thomas) I rewrote the copy he had to make changes 3 that I felt were necessary. Brought the letter to a 4 professional typing service and then had it telefaxed back to 5 Washington. We then had a call, sort of a nature of the 6 conference call with me on the phone with several people from 7 headquarters. I believe -- it was certainly Mr. Krimm, Bob 8 Wilkerson, and then Howard Schmidt came in for part of the 9 call, there may have been other people on the call as well, and 10 we talked about the nature -- the differences, the changes I 11 had made with -- in Mr. Wilkerson 's draf t. And there were some {) 12 things that we really couldn't come to a closure on in that 13 conference call and Mr. Krimm said that he would take another 14 crack at it himself, personally, and he redrafted it and then 15 telexed it back out to me. 16 And I made one or two more changes that I talked to 17 him about over the phone, very minor changes comparably. And I 18 guess I should say I had some reservations about signing the 19 letter, but I did sign it and did send it from Seattle to Mr. 20 Strome, either through my office or directly to Mr. Strome, I 21 don 't recall which, via fax; and then a cleaner copy with Mr. 22 Strome 's name spelled correct ly was sent f rom my of fice shortly 23 thereafter. 24 Q Let me show what you marked as Mass. AG Exhibit 35 () 25 and ask if it with its attachment which is the contentions Heritage Reporting Corporation (202) 628-4888

_ = . . -. . _ _ _ _ _ _ .. _ _ ._ I i i

          "O                                                                                                                                             -THOMAS - DIRECT                       -13564 1      response of June 4th represents the final product of the 2      process you just testified to?                                                                                                                                 ,

3 A (Thomas) Yes, it 's the final product. It 's the r 4 cleaned up copy of the letter -- cleaned up in the sense that. i 5 the letter had become distorted back and forth in the telefax  ; 6 because we were -- and we were running out of time to get this  ; 7 thing out, and there wasn 't time to get it retyped again clean.  ! 8 So this is the copy that spells Mr. Strome 's name correctly and ~ 9 was the extra -- the final thing that was sent to him._  ! 10 Q Now do I understand your testinony to be that the 11 final version of the letter that you signed was the one l i {) 12 produced in Washington? 13 A (Thomas) Yes, actually it was, because I signed --  ! 14 the letter that I signed was a fax that had been sent to me-  ;

+

15 from Washington. Yes, that's correct. l 16 Q Did you say you expressions reservations but were 3 17 told to go ahead and sign the letter and get it out anyway? l 1 i 18 A (Thomas) Yes, I did. l l 19 Q What were the nature of your reservations? l 20 A (Thomas) My reservation, that I recall. there may  ; . 1 21 have been others, but what I was particularly concerned about i 22 was on page two in the second paragraph, the last sentence j 23 which reads: "Although sheltering is an alternative, wt doubt 24 if the use of existing public or private facilities would be (]) 25 acceptable." ( Heritage Reporting Corporation

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THOMAS -' DIRECT , 13565 .i 1 We had never reviewed in a thoroughgoing ~ professional 2 i the tiature of the accommodations in'the sheltering in the'  ; i

                                             -    ook area.                 And I was very concerned about sort of                                                                           j j

s ;ging whatever review we would cone to. We had-looked at t 5 area. We were-concerned about the' nature of the buildings  ! 6 in that area, 'as I had set forth in the December 1985 memo, but  ! I 7 we never really looked at it in a thoro'ughgoing 'professionsF j i 8 way and I was concerned about that sentence would seem to j ur 9 prejudge matters if the State wanted to try and demonstrate a i f 10 solution to the problem of the risk to the'public.by sheltering l i 11 them in the event of an accident. i t 12 Q Did you point out that reservation?

   ' {~ )

13 A (Thomas) Yes, I did. And'that was --  ; i 14 Q To Mr. Krimm or to someone else? - l 15 A (Thomas) Oh, sure to Mr. Krimm and to Mr'. Wilkerson. l 16 And we went back and forth on it'for quite some time, and Mr. j 17 Krimm told me that basically -that he couldn't see why I l 18 couldn 't live with it, and I said, well, I just don't want to l t 19 seem like we would close our minds to that'if the State -- if f 20 th-c is in fact what the State decides to come up with. And he f i 21 caid, well, I want you to sign it please, and I.did, ' et/13 22 (Continued on next page.)  ! 23 l 24

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t I () THOMAS - DIRECT: 13566  ; t/14 1 MR. OLESKEY: Okay. I 'll . take that back.  ; 2 JUDGE SMITH: Let me interrupt here. , 3 MR. OLESKEY: Yes. l 4 JUDGE SMITH: The time that we~had hoped for is l t 5 becoming more and more unrealistic. As I recall the testimony j I; 6 from the FEMA people, there does not begin to be a divergence 7 in the views expressed by Mr. Thomas and the views later j 8 adopted by Mr. McLcughlin until much later in the events. i i 9 Can 't we move f aster to the point where we diverge without i l 10 doing damage to anybody's case here?  ; 11 MR. OLESKEY: Well, we 've got a -- f 12 JUDGE SMITH: I know you 're doi.T a very careful way, {') 13 a block at a time, I know. 14 MR. OLESKEY: In my j udgment vnt have to cover the 15 July 30th RAC meeting.  ; i 16 JUDGE SMITH: Well, yes. you got to do that. ( 17 MR. OLESKEY: So we 're almost there. - 18 JUDGE SMITH: All right. l 19 MR. OLESKEY: Okay. I 20 BY MR. OLESKEY:  ! 21 Q Mr. Thomas, trying to finish off briefly here the 22 period up until the RAC meeting of July 30. There 's an exhibit 23 which is 31 which is a memo-to the RAC conveying the filing 24 that FEMA made on June 4th, and making some comments on how-() 25 that filing happened to come about, which is -- bears your Heritage - Reporting Corporation (202) 628-4888

i THOMAS - DIRECT 13567 1 name, but also has on it Edward A. Thomas, for him, Jack Dolan, 2 dated June 17th. Will you describe briefly the circumstances

              .3      under which this memo went out to the RAC members telling them 4    how it happened that the agency had taken the position-itLdid 5    on June 4th?                                                              j 6         A     (Thomas)       Sure. It struck me on June 4th or the 7    morning of June 6th, I think it was June 4th late in the day,             i 8    that the RAC members were going to hear some fairly astonishing-          :

t 9 news in the newspapers on June 5th most likely, and they were' l 10 going to wonder what in the world was going on. because all of 1 11 them save Bob Bores thought that we.had settled this problem in l 12 April, and also they 're go' y; to be hearing about some FEMA [) . 13 position that they didn 't know anything about and I felt badly , 14 about that.

• 1 15 And asked Jack Dolan and his staff to do two things 16 while I was away in Seattle and then subsequently on vacation.

17 Number one, the Maine Yankee exercise was taking place while I l l 18 was in Seattle and I asked Jack to please go over that with the j 19 RAC members that were present at Maine Yankee ami explain to  ! 20 them what had happened and how things had come to pass. And  ! 21 then I said, please come up with a memorandum for the RAC that j 22 explains what happened and sends them the actual mtterials as 23 quickly as you possible can, 24 Q So you didn't consult on this document in terms of () 25 reviewing it? Heritage Reporting Corporation  ! (202) 628-4888 l l.

F I () THOMAS - DIF.ECT 13568  ! 1 A (Thomas) No, I didn 't. It . was j ust -- I.said, I 2 want a document that sets forth what happened to go out as soon , 3 as possible for the RAC members.  ; 4 Q And Mr. Dolan and the rest of the staff did that? 5 A (Thomas) Mr. Dolan, I believe, Mr. Swiren and the  ; i 6 staff actually did the work on that. On that -- the day that  : 7 that was sent out I was in a cruise boat off.the coast of l 8 Alaska with my wife, f i 9 Q I 'm sure that many people in .this room wish they were 10 there now. 11 In July, directing you to the next month and a , 12 different topic, was the agency in the middle of what 's called [} 13 a self-initiated review of the plan, emergency response plan I I 14 for another location, name of the Pilgrim Station?  ! 15 A (Thomas) Yes. I i 16 Q That 's the proj ect you referred to several times  ! I 17 today in your testimony?  ! 18 A (Thomasl Yes. 19 Q Briefly, so that the Board will have a context for

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20 the July 30 meeting which is coming up, that was going on in'  ; i 21 the agency about the Pilgrim plan? l i 22 A (Thomas) Very briefly. Really in -- around June of  ; 23 1986 facts were brought to our attention that led us to  ! 24 question whether or not' the emergency plans for Pilgrim were in 25 fact adequate to protect the public. And increasingly through -({) i t Heritage Reporting Corporation i (202) 628-4888-

i ( THOMAS - DIRECT 13569 r 1 1965 and 1987 we were carrying out a self-initiated review of , 2 our previous interim finding of reasonable assurance of f l 3 adequacy of the emergency plans.  ; 4 In this period when I came back from Alaska, in l 5 cooperation with my headquarters, we were reviewing documents  ; 6 that were prepared by my staff. A draft report was prepared -j i 7 for my headquarters, reviewed and rej ected by my headquarters, l 8 sent back up to.me to redo very quickly during July; and that 9 was where the bulk of my personal attention was focused during 10 the month late -- well, late June and through the end of July j 11 on getting the self-initiated review done properly to my  ; 12 headquarters ' satisf action and my satisf action. j

   )

13 And we do so, and we had sent it out for RAC comment . 14 and had receifed detailed comments f rom the NRC and some l l 15 comments from perhaps one or two other RAC_ members, I don 't 16 even recall if we had any comments from anybody else, and  ; 17 incorporated the changes. l 18 And finally, by the end of July we had -- the RAC had l t 19 concurred that they had no further comments on the report.  ! 20 They concurred in the report, and it was ready to be j

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21 distributed and it was in fact distributed August 4th. l i 22 Q Had that work by.the RAC on this other plant, at i 23 Pilgrim, been completed by the time of the July 30th meeting? 24 A (Thomas) Yes, it had. It was just a matter of -- 1 25 well, there were a few dots to be made and a few Ts to be I ([) Heritage Reporting Corporation (202) 628-4888

( )' . THOMAS - DIRECT 13570 , 1 crossed,.but it was done and-it was ready for distribution. 2 Q And is it accurate to say that a focus of that review 3 and report was the question of the safety of the beach 4 population in the event of an accident? 5 A (Thomas)- That is correct. 6 Q Okay. Now, I want to ask you about two different - 7 matters, one is the RAC meeting of July 30th-end the other is

8 the conversation which you testified to at your deposition with  ;

9 Mr. Peterson in Boulder, Colorado. 10 MR. TURK: Your Honor before we move on, there 's a - 11 line of questions that I thought was going to relate somehow to {) 12 13 Mr. Thcmas 's responsibilities with respect to the Seabrook review and how this. Pilgrim issue related to his time 14 availability for this case, for Seabrook. 15 We just had an extensive series of questions and  ; 16 answers that went way beyond that, and I think it 's irrelevant l l 17 and should be stricken. 18 MR. OLESKEY: I know Mr. Turk is a competent and i 19

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skilled counsel or he wouldn 't be here in this job, but- I 'm 20 very clear when I ask questions I believe, and I said as a 21 preface, I'm going to ask you some questions about Pilgrim to 22 give the Board a context for the question I'm going to ask you 23 about the July 30th meeting; and he gave-his answers. 24 And then I said a moment ago, I 'm going to - ask you (]) 25 questions about July 30th and about Boulder, Colorado, and I Heritage Reporting Corporation-(202) 628-4888

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1 Il THOMAS - DIRECT 13571 1 want to ask you which came first in time. 2 Then comes this utterly irrelevant obj ection out of 3 left field. I do not understand why Mr. Turk does these 4 things. 5 May I continue with my examination. 6 MR. TURK: I have an obj ection pending. 7 MR. OLESKEY: I don 't consider that an obj ection. . 8 JUDGE SMITH: Well, how did that lay any groundwork 9 for the July 30th meeting? 10 MR. OLESKEY: I 'm going to ask him about discussions 11 and reactions he had on July 30th that relate to the review 12 that had just been completed at Pilgrim. 13 JUDGE SMITH: You 're about to do that? 14 MR. OLESKEY: Either that or the Boulder meeting and 15 then that. I just want to get the historical chronology right. 16 MR. TURK: Your Honor -- 17 MR. OLESKEY: In order there be no confusion I'll go 18 to that and come back to Boulder, fine, 19 MR. TURK: Before he moves on, Your Honor, I do have 20 a motion to strike on grounds of relevance. 21 JUDGE SMITH: He hau yet to establish the relevance. 22 He has indicated that he will establish it. 23 MR. TURK: So it 's de bene. 24 MR. OLESKEY: Whatever. Let 's deal with the July 25 30th RAC meeting first, get that issue out of the way. ({} I 'd Heritage Reporting Corporation (202) 628-4888

_. _. . ~. - . . - - - - . _ - - - - - _ _ _ _ l O THOMAS - DIRECT- 13572 1 like to feel I accomplished something today. 2 BY MR. OLESKEY: i 3 Q The RAC meeting of July 30th was called at FEMA 's 4 request to consider a variety of issues; is that right? 5 A (Thomas) That 's correct. 6 Q Some of them related to -- some of them relatedsto 7 Seabrook and some did not? 8 A (Thomas) That is correct. 9 Q Okay. I 'd like you to tell us, first, roughly how 10 long the meeting took? 11 A (Thomas) In terms of an. approximation, four and one () 12 half hours. Now, how much of that time was consumed with 13 .Q i , 14 discussions relating to the Seabrook beach population? 15 A (Thomas) Perhaps.two hours, but I don 't have an 16 exact clear recollection of that. I believe it was , 17 approximately two hours. 1 18 Q Do you have a pretty good recollection of that i 19 portion of the discussion or would you like to look at your. I 20 notes now? l i 21 A (Thomas) With respect to the portion of the-22 discussion dealing with the Seabrook beach issue, I have a 23 clear recollection. 24 Q -Okay. Would you give us a summary overview of how . 25 that discussion went, the kinds of comments that'were made and (]) Heritage Reporting Corporation (202) 628-4888 .

O 13573 THOMAS - DIRECT 1 who made them; and then I'll ask you some specific focus 2 questions when you 've completed that answer? 3 A (Thomas) Okay. 4 MR. DIGNAN: Now at this point I obj ect. This 5 meeting is a key meeting, everybody knows it 's a key meeting 6 and I see no reason why we can 't go to exhausting the witness 's 7 recollection, and then if he must summarine fine. 8 We 've got a lot of testimony about what certain 9 individuals say or allegedly said at this meeting. 10 MR. OLESKEY: You know, I feel -- , 11 MR. DIGNAN: And to ask for a summary of what was 12 said, Your Honor, I think transgresses the usual rules of {}} , 13 precision on direct examination. 14 MR. OLESKEY: You know, there 's an old New England 15 expression, caught between the pillar and post. The Board 16 keeps telling me to go f aster and my brothers keep obj ecting 17 when I tried to encapsulate and summarize. Let 's all decide , 18 how we want to do this and I'll play by the rules. 19 JUDGE SMITH: Let 's have a summary in detail. 20 (Laughter) , 1 21 JUDGE SMITH: To satisfy the needs of the case. l 22 Go ahead. i l 23 THE WITNESS: (Thomas) It would enhance my I 24 summarying detail if I could have my notes. () 25 JUDGE SMITH: Then I think that you should use them. Heritage Reporting Corporation (202) 628-4888 i

() THOMAS - DIRECT' 13574 1 MR. OLESKEY: It 's agreeable to me. 'l 2 MR. DIGNAN: Now, j ust so that we don't have a fight' f' 3 later --  ; 4 MR. TURK: I 'm going to have a problem. ' 5 MR. DIGNAN: -- will the notes be available to j 6 counsel for cross-examination purposes, if the witness is going { 7 to use them testify. l 8 MR. OLESKEY: If he uses them. } 9 JUDGE SMITH: If he relies upon them in his testimony  ; 10 as he says he will and needs to for reliable testimony, you f 11 will. , 12 MR. OLESKEY: Mr. Barshak, can you -- ({} 13 MR. TURK: Your Honor, I 'd like to -- [ 14 JUDGE SMITH: Wait.a minute.  ! i 15 MR. OLESKEY: Excuse me,.Mr. Turk. Can you just cut  ; 16 through it. Mr. Barshak or Ms. Netski, and tell us if those i 17 were produced previously to everybody?.  ! i 18 MR. BARSHAK: I will answer that question. Quick , 19 cot.su l t at ion. To play safe I'll say. no. 20 MR. OLESKEY: Okay.  !' 21 MR. BARSHAK: But they 're here. 22 JUDGE SMITH: If he prepared notes to help him in his  ; l 23 testimony there 's no responsibility to produce them. You get l 24 to look at them if he uses them. () 25 MR. DIGNAN: Understand. I 'm not questioning -- r Heritage Reporting Corporation , (202) 628-4888

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() THOMAS . DIRECT 13575 .! i 1- JUDGE SMITH: Okay. f 2 h61. DIGNAN: - the failure to produce, j ust, I  ! 3 assume I will have them to cross-examine if he relies on them, j 4 and I understand he 's now relying .on them. . r

             .5                                        JUDGE SMITH:                 Yes.

6 MR. BARSHAK: Tom. I 'l l have them' in ' my. room. I'll 'l 7 give you a cold coke with them, i 8 MR. DIGNMI: Excuse me. 9 kR. BARSHAK: I'll give you a cold coke with the 10 notes. 11 MR. DIGNAN: Fair enough. . t 12 MR. TURK: Your. Honor, I have a problem. I 'd like (]) j 13 the witness 's recollection on the questions, and I<have a .l r 14 particular reason for that. There was a point in the. l 15 deposition of Mr. Thomas during a break in which he indicated ' 16 that he filled in his notes, taking.during meetings, he filled _ j 17 in later for whatever reason, it was not established.. 'And .I  ! 18 have a problem that if he 's going to testify f rom notes.  : 19 there 's a problem with the reliability of the notes f rom which. -l i 20 he 's working on them. l, 21 JUDGE SMITH: Ask him about it. What your relief? 22 MR. TURK: As Voir Dire. T 23 JUDGE SMITH: No. 24 MR. TURKi- Before the testimony comes in.- () 25 JUDGE SMITH: I don 't -- where did those notes come . Heritage. Reporting Corporation (202) 628-4888 _ ,,_,,u ., ., _ _ _ . _ . _ . . . , _ . _ , _ . _ . _ . _ ,_ , , _ - . . . ~ . . _ . . _ . _ . _ . .

(")i u THOMAS - DIRECT 13576 1 from, you prepared them to help you testify today? 2 THE WITNESS: (Thomas) No, sir. This is the actual l 3 sheet that I had in front of me -- 4 JUDGE SMITF: 4t the -- 5 THE WITNESS: (Thomas) -- at the meetings. 6 JUDGE SMITH: Okay. 7 THE WITNESS: (Thomas) And let me add so that 8 everybody knows, that it is my practice after -- sometimes if 9 I 'm coming back f rom Washington -- 10 JUDGE SMITH: Go ahead. 11 THE WITNESS: (Thomas) -- I 'l l fill in blanks or

 ~

12 I 'll straighten out words. In this case, I recall, after the (]) 13 meeting sitting and adding stuff to it and revolving this 14 around in my mind and adding, I see two things that I know I 15 added after the meeting. 16 MR. TURK: Your Honor, I think that establishes that 17 the notes are not contemporaneous, they don 't have any 18 reliability, and I 'd like the witness 's independent 19 recollection. 20 JUDGE SMITH: You 've got a bad way to go because I 'm 21 a rotten note taker and very often the very next day or next 22 week I 'll sit down and make the notes of something important. 23 It 's the best I can do. If it enhances his memory, that's 24 fine, you can cross-examine him on it. l () 25 MS. WEISS: The notes aren 't being of f ered in l Heritage Reporting Corporation (202) 628-4888

I i '( ) THOMAS - DIRECT 13577 [ 1 evidence, are they? -[ 2 JUDGE SMITH: Right. They 're j ust for his testimony. 3 MR. DIGNAN: Your Honor. I have a feeling they 've 4 been produced already. I 'm getting signals f rom Mr. Barshak-  : 5 that they in fact have been produced. I think if Mr. Barshak 6 would just write -- t 7 MR. BARSHAK: They 're in this package. l 8 MR. DIGNAN: -- where the package the notes are 9 everybody would be copacetic, happy,-and delighted. l 10 MR. TURK: That solves a big part of the problem. j 11 JUDGE SMITH: Mr. Turk is obj ecting on another basis, j 12 but that is something you can take up on cross-examination. ((} 13 MR. OLESKEY: They were produced last week to l i 14 everybody, Your Honor. Mr. Turk ought to read his. files more 15 carefully.

• 16 MR. TURK: Well --

17 MR. DIGNAN: Well, stop the shots. .Could I be told j 18 which notes we 're talking about in this package I received? , 19 It 's my understanding they 're in this package, .I cannot discern 20 which particular notes. And-if somebody would tell me that, I-  ; L 21 at least will subside.  ; 22 MR. BARSHAK: I 'm told they 'r.e attached to the 23 agenda. 24 MR. DIGNAN: Thank you, Mr. Barshak. () 25' MR. TURK: Mr. Oleskey has no reason to get into Heritage Reporting Corporation , (202) 628-4888 ) t

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n U THOMAS - DIRECT 13578 1 personal attacks. Mr. Barshak himself said, to be save he was 2 going to say the notes had not been produced. I indicated that 3 I had not gotten these notes until last night at the hotel. If 4 Mr. Oleskey wants to pursue personal attacks I'll give him some 5 retribution; I don 't want to. 6 MR. OLESKEY: I apologize for my frustration. 7 JUDGE SMITH: I didn 't hear it. Don 't restate it. 8 not for me. 9 (Laughter) 10 MR. TURK: And I also note, Your Honor, there are 11 several notes that could be the ones that the witness is f' 12 referring to; it 's not clear f rom the package that I have what V. i 13 he 's ref erring to. Put it on the record what he 's referring 14 to. 15 BY MR. OLESKEY: 16 Q Mr. Thomas. 17 A (Thomas) Yes. 18 Q Would you, making whatever use of whatever notes you 19 feel appropriate, tell us the substance with as much 20 particularity as you can of what was said by the RAC members 21 about the Seabrook beach population back July 30 last year? 22 A (Thomas) Okay. I 'm going to -- 23 MR. DIGNAN: Mr. Thomas, would you do me the courtesy 24 of holding up until I find out if I 've got the notes. () 25 THE WITNESS: (Thomas) No, no, no, absolutely not. Heritage Reporting Corporation (202) 628-4888

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() THOMAS - DIRECT 13579

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1 Yes, those. 2 MR. DIGNAN: Those is what I 'm talking ' about.'- 3 THE WITNESS: (Thomas) This attached to the -- i i 4 MR. DIGNAN: Agenda. f 5 THE WITNESS: (Thomas) -- the agonda and'the notice I 6 of hearing which was sent out the same time. - 7 MR. DIGNAN: . Attached to a different' agenda, that 's l 8 all, but these are the notes he 's working f rom. Thank you.  ; 9 Thank you, Mr. Barshak. { 10 THE WITNESS: (Thomas) I 'm just going to rattle of f,  ! F 11 the notes ~are made. It 's a one side of a sheet of page, it 's l 12 attached to my copy of the agenda and my copy of an attachment [])  ! 13 to the agenda which was the dates of the hearing, notice of the , l { 14 dates of the hearing, the Seabrook hearing. I i 15 JUDGE SMITH: Are you simply j ust going to read your j ; 16 notes -- , 17 THE WITNESS: (Thomas) No, sir, j 18 JUDGE SMITH: -- or are you going to testify from 19 your best memory from the notes? i 20 THE WITNESS: (Thomas) I 'm telling you, I 'm going to [ 21 testify in order of -- f 22 JUDGE SMITH: Well, okay. fi 23 THE WITNESS: (Thomas) -- what they say. 24 The first note I have - .the first recollection I l () 25 have is Byron Keene says something about, hey, NRC has removed  ! k i Heritage Reporting Corporation i (202) 628-4888 P

O ' V

• THOMAS:- DIRECT 13580 1 the references to the plant features. And Bob Bores went into -

2 a great discussion of graded response and what reasonable ' 3 assurance was, and'look at'the plan. Discussion of the i 4 efficacy of sheltering, that just shelter might'not make the i S situation any better, and more. I mean, it was an extended ' 6 discussion and I don't really recal1 the specifics at this - j 7 point. He made a very good presentation on why he felt that  ! 8 the plans, as they existed, without reference to the. 9 containment or any special features or special consideration  ! 10 for Seabrook were adequate. 11 Herb Fish said that we 've got to look at what the Q 12 plan, the P-L-A-N, the plan prescribes. And Paul Lutz went on, 13 and I don 't recall from here but I recall from reading Dr. 14 Bores 's testimony, he starts out by saying,'we have a problem,  ! 15 we in this room. And I think he also said, you, pointing at 16 me, have a problem. He ..sid that Oyster Creek, a. site that he l 17 was familiar with from his duties with FEMA, Region 2 and that 18 RAC was worse than Seabrook, i 19 And he said that we have to really_ consider looking  ; 20 at the reality of the situation, and he gave-an example that we . I 21 don 't need an expert to tell us how wide lanes on the road are. . 22 At one look at the Seabrook containment is pe-fectly quite l 23 enough to know that it 's special and unusual and should have 24 special consideration and that the RAC ought to say so. O 2e Biii Lezerue edded inet on e generic beeie inet 1ne Heritage Reporting Corporation (202) 628-4888 . _ _ _ _,_,____,_._-_...._._.1..,..___..___,_._,._,_,_.__, ....__.._,2,_._,

i [ () 13581. THOMAS - DIRECT 1 plans were adequate. And then we had the additional benefit of 2 sea breezes in the'erea and that-the breeze -- the-coastal 3 breezes would act as a great protector of.the public along the j i 4 beach. 5 We had extensive discussion -- I pointed out how i 6 FEMA, in general how FEMA had come to its conclusions. There , 7 was a comment that I recall from the notes that Herb Fish said  ! f' 8 that maybe one way we could deal with this is to have the RAC , r 9 meet without FEMA and have them develop a RAC posture absent 10 FEMA, and then that would be presented to FEMA to do with as it i 11 wanted.  ! 12 I had tried several times to bring the meeting to []} 13 closure because, I have to tell you, number one, on a personal l 14 level I was totally taken aback by the strongly held views of 15 the RAC members on this issue. I expected very, very little - 16 discussion of this matter. It seemed just like what FEMA had 17 done before at Maine Yankee. It seemed just like.what we had .; 18 just finished doing with respect to Pilgrim. We were not j 19 prepared for a prolonged discussion on this. I had requested , 20 permission to use the -- my reasonable assurance paper as a  ; 21 talking point with the RAC, so that they could understand that 22 at least I distinguish between just compliance with the letters , 23 and numbers in NUREG-0654; and the larger issue'of a reasonable 24 assurance of an adequate level of public protection. And my l () 25 headquarters hadn't been able to agree to that because they l Heritage Reporting Corporation

                                                                                     '(202) 628-4888                                                                     .j

fl J THOMAS - DIRECT 13582 1 hadn 't agreed that that was the correct position, the agency 2 position. et/14 3 (Continued on next page.) 4 , 5 6 7 8 9 10 l 11 i. r O 2 13 14 15 16 17 i 18 19 l 20 I l 21 22 23 24 0 25 Heritage Reporting Corporation (202) 628-4888

O- 13583 THOMAS - DIRECT i T15 1 And basically I felt that FEMA wasn't getting its 2 points across because all of us were tired, or both of us that 3 were at the meeting, Jack Dolan and I were just exhausted .from 4 the work that we had done on getti'g the Pilgrim report pull - 5 together. We weren 't being very conerent in terms of our 6 points. And I felt that what we needed was to have FEMA come 7 back with, in essence, a counterpoint, detailed paper talking 8 about the -- as a counterpoint to what Bob Bores had come up 9 with in Bores 2 that would discuss, number one, that a 10 principle of administrative law that you only look at what 's in  ! 11 front of you on the record. You don 't think about containment i 12 if it hasn't been established that there is a specialized (]) 13 containment that results in some changes in the normal-l 14 parametere of emergency planning. l 15 And, number two. I wanted to established that- , 16 some' t hing in conj unction, as I 'm thinking now, there was l 17 discussion in this meeting that a fast-breaking accident would i 18 not be all that serious; that tne nature of the release would l 19 be comparatively slight, almost benign, and that was a 20 discussion by Byrone Keene. 21 And I wanted to come up with a counterpoint to that 22 because I didn 't think that that was what I was hearing from 23 the NRC. I had heard that informally from staff once, and then 24 I had heard that that really wasn 't quite correct, and the NRC () 25 wasn't willing to rely on it. And I think I've discussed that Heritage Reporting- Corporation (202) 628-4888 l

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3 () 13584 THOMAS - DIRECT 1 before. As I understood it, it was the_PWR-8 and -9 argument. 2 'the fast-breaking accidents, or of the nature of PWR-8 or.-9.- 'I 3 mostly noble gases, and would not result in serfous 4 consequences. l I 5 And I said to Byron during the discussion -- I 'm-6 sorry to be a little out of sequence here. I said to Byron { 7 during the discussion, look, we almost obsess about prompt f: 8 protective active decisionmaking. The NRC has been hammering i 9 on us to have this fail-safe system in place so that in the 10 event that there is an accident at a plant, and the l 11 decisionmakers at the state level can 't be reached, there was [ r 12 an NRC paper that indicated they wanted to have an automatic (]) 13 evacuation if a decisionmaker couldn't be reached at 15 l l 14 minutes, and there was great resistance to that in the New  : 15 England states, and we insisted on going to shelter within 15 f 16 minutes, f r i 17 And we have emphasized the need for prompt protective  ! 18 action decisionmaking and communication of prompt protective  ! i 19 action decisions to the public, and I j ust didn 't understand  ! 20 why we were so concerned about that if in fact a fast-breaking 21 accident was essentially benign. l l 22 And Byron said, look, you 're, and he pointed to the 23 NRC group and myself, you 're worried about that. I 'm not f l 24 worried about that. () 25 And so I was including'in what I saw as a work f i Heritage Reporting Corporation (202) 628-4888

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.O THOMAS - DIRECT 13585 1 product that was needed as an explication for Byron and others i 2 on what he nature of a fast-breaking accident was, and had in 3 mind the use of.something called the, I believe, the-mesored 4 dose consequence model which was something that had been put up 5 on the FEMA IEMIS computer in conjunction with our analysis of 6 evacuation plans.  ; r 7 So this is basically where we were at that point. As  ; 8 I 've previously testified, the NRC absolutely disagreed with f 9 the testimony and absolutely said, look, J-9 and J-10-M are met j; 10 on these plans. l 11 BY MR. OLESKEY: I 12 Q By the NRC, you mean Dr. Bores? []) 13 A (Thomas) Dr. Bores and Mr. Lazarus were I would say i i 14 equally emphatic. Dr. Bores did most of the talking. Mr. 15 Lazarus did do some. 16 And there perhaps were other points covered. And as 17 I understood the meeting, I brought it to congruence that. 18 look, we 're just not going to get this done today. - FEMA is not 19 ready to talk about it. We need to go back and do work.  ! 20 I said that we would come up with additional  ; 21 documents from FEMA and alternative language for the RAC spread 22 sheets, and we would revisit the issue another day. And that 23 was my understanding of how we lef t the meeting. l 24 Q On your notes which you furnished us which say  ; () 25 Seabrook beaches, 7-3-87, 9 a.m., that sheet of your notes at f i Heritage Reporting Corporation I (202) 628-4888

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THOMAS - DIRECT 13586

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2 A (Thones) Yes. 3 Q There 's a listing down the lef t-hand side. USDA, / 4 question mark; Commerce, not pres.;' DOT.. question mark; FEMA, , 5 NG,-I guess; NRC 'okay; and so on. .

            -6         r   A'     (Thomas)    Yes.                                                !

7 Q What 's that indicate? l t 8 A (Thomas) When I got back up to my office after the j 9 meeting and sat there thinking about this and talking with my 10 staff about it and Bob Rospenda, these were the notes that I l 11 made about essentially which way the wind was blowing, and . 12 where I thought the agencies were going, and who were (]) 13 essentially pretty well determined that the' plans as they 14 existed were okay, who was still open to persuasion in-terms of , r 15 where we would be going next. l 16 And it was for the purpose of advising my  ; 17 headquarters as to what was going to be the next logical step l 18 which I saw as being a FEMA, a cetailed FEMA position paper. 19 alternate language for the spread sheet and the RAC, a majority 20 view, a minority view.  : I 21 I researched at that point what one other RAC had i 22 done with respect to developing a majority and minority view  ! 23 just, you know, have an idea of what we do. We never had a 24 situation like this. And-then this is what I used to talk to i () 25 my headquarters about in terms of where I thought *e should l Heritage Reporting Corporation (202) 628-4888

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r i O THOMAS - DIRECT 13587 1' how I thought we should be proceeding. l 2 Q Now, was there any poll-or vote that day.' Mr. Thomas? > 3 A (Thomas) No. 4 Q Do your notes reflect any poll or. vote that day? 5 A (Thomas) No.  ! 6 Q Have you' reviewed other notes taken by eEMA personnel  ; 7 who were there to see whether they show a poll or vote? l 8 A (Thomas) Yes, I have, and there's more to that. 9 I 've talked to a number of people. 10 Q I 'll get to that in a minute. l 11 What do those other notes of FEMA personnel-at the i Q 12 meeting reflect by way of any reference to a poll or vote?

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13 A (Thomas) There 's no reference to a poll or vote in j 14 any of the notes. >

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15 Q Have you talked to those people who were at the .l l 16 meeting, the FEMA people as well as review their notes?  ! i 17 A (Thomas) I talked to everyone who was at-that ) l 18 meeting save Bill Lazarus and John Schumacher. 19 Okay. ' Q Do you want to tick off who those people were 20 to whom you 've talked about this issue subsequent to July 30th, 21 after July 30th? 22 A (Thomas) I talked with Dorothy Nevitt from the U.S. 23 Department of Agriculture. I talked with Paul Lutz from the 24 Department of Transportation. I talked with Jack Dolon and O 25 aeck Quinlen from eEMA, end 80s Roepende from ine Arsonne i Heritage Reporting-- Corporation (202) 628_4888 l

i i () THOMAS - DIRECT 13588  : 1 National Lab who was FEMA staff-support. I talked with Dr. l 2 Bores from the NRC. .I talked with Herb Fish from Energy. I i 3 talked to Warren Church from Health and Human Services, and I li 4 talked with Byrone Keene from the Environmental Protection . 5 Agency.

                                                                                                                                                       .l 6                         Q                 Okay.                   With the exception of Dr. Bores,' did anyone                        !

7 else recall anything about a poll or voteget or near the > 8 conclusion of this meeting on July 30th?  ! 9 A (Thomas) Yes. 10 Q Okay, who else recalled anything along those lines?  : 11 A (Thomas) Okay. With your indulgence, let me just l 12 say that I talked to these people really in two groups of j [])-  ; 13 times. j 14 Q Okay, let 's clarify that.  ! I 15 A (Thomas) One'is shortly after the voir dire of l 16 November 4th, and I have also-talked to all of those people in ' i 17 preparation for this -- my appearance here today.  ! 1 18 I have notes of the conversations that took place l 19 after the 4th of November, and at that time.no one remembered a-20 poll or a vote or a show of hands or anything like that. { 5 21 MR. TURK: No one including NRC. l 22 THE WITNESS: (Thomas) I beg your pardon. Thank i i 23 you, Mr. Turk. l 24 No one save only Dr. Bores.- Dr. Bores certainly - () 25 remembered something which he described as being not a vote, i Heritage Reportir,g Corporation j (202) 628-4888 -

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i C:) THOMAS - DIRECT 13589-1 but a sense of the meeting or a poll. And then I think he said 2 a show of hands. I have my notes of that. That would refresh , 3 my recollection as to exactly what he said if that 's important. 4 But it certainly was the sense that there was a clear 1 5 expression of people 's viewpoints. 6 When I talked just recently with Paul Lutz from the 7 U. S . Department of Transportation, he indicated to me that his 8 reco11 -- yes, he had talked to me about this in November, and 9 he remembered telling me that there was no vote, no show of 10 hands, no nothing like that, but that he had his recollection 11 refreshed by Bill Lazarus, and that he now recalls that there 12 was some kind of show of hands. And let me try to describe it []) 13 to you exactly.  ! 14 What he said to me was that at the end of the meeting l 15 he remembers that as people were putting their coats on. that i 16 there was some type of'show of hands that took place within the 17 blink of an eye. And that he saw Mr. Lazarus raise his hand, 18 and he himself raised his hand. And as he recalls it, that was 19 with respect to the question of whether or not people were 20 essentially in agreement with.either Mr. Lazarus or Dr. Bores; I 21 something along those lines, a poll of that nature. 22 I have talked with other people who strongly 23 disagree. They just don 't recall' any show of hands, even 24 people that I have said, well, Dr. Bores says this, and Paul () 25 Lucz now says this about a flash of a show of hands right at i i Heritage Reporting Corporation (202) 628-4888 _ - _ _ . , ~ _ ..- _ _ _ . -____ _ _ . _ , .. . _ __ . _ _ , _ _ , _ _ ._ . _ _ .___ _ _ ,

t C:t THOMAS - DIRECT 13590 [ 1 the end of the meeting as people were putting their coats on. -! 2 BY MR. OLESKEY: 3 Q That was in connection with the recent conversations.- l 4 A (Thomas) Yes. 5 Q You went back to the same people essentially. j 6 A (Thomas) I didn 't go back to everybody. I just l l 7 didn 't have time.  ; 8 Q Okay. 9 A (Thomas) But:I went back to three or four people-and  ! 10 said, well, now, Paul Lutz says this. Does this help you out. l 11 Q Was there any kind of struggle for control or dispute . 12 between you or Mr. -Lazarus at the meeting over anything? i []) . 13 A (Thomas) Not at the'end of-the meeting. l 14 It may be of significance that during the course of  ; 15 the meeting I at least obj ected, and obj ected very strenuously. l t 16 I kept -- I was quiet. I didn 't voice this. I thought Mr.

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17 Lazarus was making rude remarks just under his breath and I i i 18 couldn 't quite catch them. And I was becoming increasingly I 19 irritated by the comments, like I couldn't quite make out what j i 20 they were, but it was really irritating me tremendously. .; 21 And it was a tense meeting anyway because we were at  ! 22 the fourteenth item on an agenda. I didn't expect to spend any l time ta'lking about the subj ect, and we were I would say an

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23 24 acrimonious discussion about the protection of the beach  ! () 25 population. And I was getting increasingly angry at Mr. l Heritage Reporting Corporation j (202) 628-4888 , Gr- wr ermw rv-w -yw---yee-,--w---w**v%'y7T W Swete T-'ce* W***e-*'-'- W ww 7-'--FTTTD'T*-M1 fOye r W'et'ege?"-'-e'N-?*9Y"MT-M^ 9' t 'T e v  % ''N^ - -

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(~h Li THOMAS - DIRECT 13591 1 Lazarus 's conduct in the meeting. 2 Q Did you ever say anything to him about it? 3 A (Thomas) I never did, but I did say something to his 4 boss about it, and I did say something to Dr. Bores when I next 5 saw Dr. Bores, that I really was offended by that conduct and 6 that I wouldn 't stand for a repetition of it. And the only i 7 reason I didn 't say anything to Mr. Lazarus is I haven 't bumped 8 into him again since then. 9 Q Now could there have been a show of hands that you 10 missed being out of the room or with your back turned, 11 something like that? 12 A (Thomas) If there was some kind of show of hands in (~)T 13 the blink of an eye as people are leaving the room, called for 14 by Mr. Lazarus as everybody is getting up, I certainly can't 15 swear that it didn 't take place. 16 Q Were you there as everybody got up and left the room? 17 Were you physically there? 18 A (Thomas) I wasn 't the last person to leave the room, 19 but I was one of thr. last to leave. 20 As I recall, at the end of the meeting I was talking 21 with Mr. Rospenda about what I was looking for him to do with 22 respect to the contribution towards the next RAC meeting to 23 have on this subj ect. 24 Q Was there a commitment or promise made by FEMA at the rm i_) s 25 meeting to the RAC to file a revised RAC position to supplant Heritage Reporting Corporation (202) 628-4888

O 13592 THOMAS - DIRECT 1 that of June 4th? 2 A (Thomas) No, no , no, not at all. 3 First of all, the position that was filed June 4th 4 was not a RAC position. It was FEMA testimony adopted at the 5 level of Dave McLoughlin. I didn 't have the authority to 6 change it. 7 What I was committing to, and I 'm not saying I was 8 necessarily a model of clarity on this, my brain was developing 9 this as I was going along, that we were going to develop 10 alternate language for J-9 and J-10 elements on the spread 11 sheets. 12 And certainly what I had in mind, I 'm not sure if I (]) 13 necessarily clearly expressed it, was a counterpoint, a maj or 14 paper from FEMA as a counterpoint to Dr. Bores 's Bores 1 that 15 would incorporate my concern that there was consideration of 16 the containment and the special features for Seabrook that were 17 not really before us as an administrative agency, and that 18 would incorporate factual analysis of whether or not a fast-19 breaking accident can be a serious accident, those major items 20 as well as going through Dr. Bores 's paper a chunk at a time 21 and carefully and thoroughly and technically analyzing it. 22 Q Just one other question about this meeting. 23 After the issue arose of the so-called vote here I 24 think in November, you 've indicated what you did. Did Mr.  ; () 25 Flynn tell you that he had done any inquiries as counsel for Heritage Reporting Corporation (202) 628-4888

i I r () THOMAS - DIRECT 13593 i l 1 the agency to determine whether or not there was a vote which. 3 i 2 had missed in some fashion? - I 3 (Thomas) Yes. A

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4 Q Did he go and talk to folks, as you understand.it, { S who'had been at the meeting who were not FEMA personnel? ~ f 6 A -(Thomas) Yes, i 7 MR. TURK: May I ask for a clarification? f 8 Have you established that Mr. Thomas was at tb's i 9 meeting or interview? And if not, let 's make clear that you l t

                   '10              are really going after' hearsay.

11 MR. OLESKEY: Well, I thought it was clear that I was l 12 asking for what Flynn had done. []} 13 MR. TURK: Well, you haven 't established whether - Mr. l l 14 Thomas was present. i . t 15 THE WITNESS: (Thomas) I was not present. j b 16 BY MR. OLESKEY:  ! i 17 Q When -- and did Mr. Flynn discuss with you anything  ! 18 of what he had learned when he talked to RAC members who had  : 19 been there? l 20 A (Thomas) You bet. Yes.  ! l 21 Q Was there anything that he told you that was  ! I 22 inconsistent with your mencry of what happened -- .! 23 A (Thomas) No. 24 Q -- with respect to the vote?'  ! () s 25 A (Thomas) No. l [ t i Heritage Reporting Corporation j (202) 628-4888

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(I) THOMAS - DIRECT 13594 1 Q When was that._ Mr. Flynn's own separate look at the 2 situation and his then discussion with you? , 3 A '(Thomas) He went up-during the-Vermont Yankee t 4 exercise. 5- Q Was that November. December, January? [ 6 A (Thomas) Drawing a blank. I 'm sorry. [ 7 I believe.it was November. It was either November or 8 -December. If it 's important, we can establish that. 9 Q Were you and he then comfortable with the position  ; 1 10 you had taken in the hearing about your recollection of the  ! 11 vote issue? l 12 A (Thomas) Yes, let 's be clear. 'Not my position, but  ! (]) 13 we were both very comfortable with the truth of my testimony, , 14 yes. , 15 Q Yes, that 's exactly what I meant to say. Thank you  ; i 16 for that clarification. 17 A (Thomas) And let me be clear. That is what he told i 18 me; that he was very comfortable with the fact that I had told 19 the truth based upon his -- based on his interviews with the 20 people at the Vermont Yankee exercise. 21 Q Which was separate and apart from the conversations 22 you had yourself? 23 A (Thomas) That 's right. 24 Q All right. And as you 've told Mr. Turk, you weren 't () 25 present when Mr. Flynn had his conversations. , Heritage Reporting Corporation i (202) 628-4888 l I

O THOMAS -' DIRECT 13595 : 1- A (Thomas) That is correct. 2 JUDGE SMITH: I want to'ssk Mr. Thomas one or two' 3 questions here. > 4 MR. OLESKEY: Sure. 5 JUDGE SMITH: And I 'll ask thst counsel withhold , 6 their concern becauseLif the answer does not come out to havs l 7 an adequate basis, we 'll j ust disregardfit. But I'm certain 8 that the events of July 30,~ 87 ha're lingered in your mind a-9 lot. It 's been very important to you; is that true? 10 THE WITNESS: (Thomas) :They 've ben important to me f 11 since at the earliest October of this year. I 12 I'll tell you very candidly, at the end of that []) 13 meeting they had some importance to me that was fairly , t 14 transitory. And when I first testified in October, I .couldn 't ' 15 even remember what month we had 'that RAC meeting. f 16 JUDGE SMITH: This has caused you a lot of concern. ' s 4 17 THE WITNESS: (Thomas) Since November it sure has, 18 yes. [ 19 JUDGE SMITH: And you have reflected back upon the + 20 day quite a bit. l l 4 21 THE WITNESS: (Thomas) Yes  ; i a 22 JUDGE SMITH: Do you have an explanation -- what 's l 23 your best explanation cf how this dichotomy, how this  ! 24 digression of memories, and digression of views, how it has  ! () 25 arisen? i Heritage Reporting Corporation l (202) 628-4888 } t

L THOMAS - DIRECT 13596 i 1 I mean did you explain it by -- did you have an 2 explanation for it at all? l 3 THE WITNESS: (Thomas) .The best. explanation that I. l 4- can come up with that fits all.the facts'. I mean accepting what  ! I 5 Dr. Bores says is true and accepting what Mr.-Lazarus says is 6 true. 7 JUDGE SMITH: You can do that, j 8 THE WITNESS: (Thomas) I 'm willing to do that. l r 9 I'm willing to believe that at -the end of the meeting I 10 there was some kind of flurry, a flutter of hands in the blink 11 of an eye on some issue that I don 't even know what -it was. l 12 That probably was something.like, hey, are'you wish NRC on (]) 13 this, guys, or are you with FEMA. l l 14 And if there had been such -- I 'll tell you this. If l i 15 there had been such a vote, I have little or no doubt that we  ; i 16 would have lost hands down. And I -- no doubt about that at i 17 all. l 18 My point was that we weren't ready to vote that day, 4 19 and as chairman I would not have permitted a vote if one had

                                                                                                                                                                        'l 20      been requested.                         We were just simply not ready to reach that 21      point.              I think it 's always part of my job to protect the
;               22      minority there and let them -- FEMA was not ready to cone 23      forward.                  FEMA wasn't ready to discuss that issue in en-24      intelligent and intelligible way that day.                                                                    Theycfelt they

() 25 needed to develop more information. I felt we needed to l

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V(3 THOMAS - DIRECT 13597 1 develop more information, and I would not have permitted a 2 vote. 3 We never had a vote, and I still then and at that 4 point hoping we could come to a congruence on this and as we 5 always had within the RAC. 6 It is possible there was something that I didn't 7 observe and didn 't know about. It is also I think worthy of  : 8 note and that 's why I mentioned it, that I was -- I was very 9 angry with Bill Lazarus. I thought his conduct during the 10 meeting was tctally out of order and totally unacceptable, and 11 which is what I told his supervisor and what I told Dr. Bores, 12 and I also told them that there was one point during the (]) 13 meeting where I have to say that I thought he was -- I couldn't 14 quite catch it. I thought he was using foul language to me 15 just under his breath, and I was getting more and more angry. 16 Towards the end of the meeting I was trying not to listen to  ! 17 his what I considered mutterings and grumblings. I 18 If he said something at the end of the meeting, it 's l 50 quite possible I wasn 't hearing it, and I don 't know, and there 20 may have been some kind of flutter of hands. Paul Lutz is a 21 very, very reliable and steady man. And if he says he 1 22 remembers a flutter of hands, then, well, so be it. He also 23 says he can 't remember what it was about exactly, and he can 't 24 remember if anybody else raised their hands. () 25 I j ust don 't know. There is some doubt in my mind. Heritage Reporting Corporation I (202) 628-4888

P (J ' THOMAS - DIRECT 13598 1 Certainly at points in this I have been at a loss to explain 2 it. Based on my conversation with Paul Lutz, there sounds like 3 there might be some rational explanation. l s E15 4 (Continued on next page.) 5 6 [ 7 - 8 l 10 11 12 []} t 13 14 t 15 , 16 r 17  : 18 19 20 t 21 22 j 23 24 l () 25 j Heritage Reporting Corporation (202) 628-4888 l

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(~/ (- THOMAS - DIRECT 13599 r T16- 1 BY MR. OLESKEY: 2 Q If there was a flutter of hands according to the 3 conversations you have had with other FEMA people present and i 4 other RAC members present, Mr. Lutz, outside of the NRC 5 representatives, was the only person upon whom it made an i 6 impression. 7 MR. TURK: Obj ec t ion. Totally speculative. He 's 8 talking about recollections. 9 JUDGE SMITH: I think you 're going -- now you 're 10 going from what Mr. Flynn told Mr. Thomas from Vermont Yankee. 11 MR. OLESKEY: Well, I 'm asking about his own two 12 discussions, Your Honor, with these -- (~T x) 13 MR. TURK: Your Honor, totally speculative. These 14 are discussions held four months after the meeting, and he 's 15 asking about what made en impression. And what may have made 16 an impression back in July is not necessarily what people recalled in November or December. 17 18 MR. OLESKEY: No, that 's -- 19 MR. TURK: Particularly if someone didn 't ask the 20 right questions that trigger recollection. 21 JUDGE SMITH: He 's going to restate it. 22 MR. OLESKEY: Let me restate it. 23 BY MR. OLESKEY: 24 Q Did anybody else report to you in either of the 25 several conversations you had with your own staff or other Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13600 1 agency members that they recalled anything that could 2 approximate a flutter of hands on an issue at the end of the 3 meeting? 4 A (Thomas) No, and I 'd like to add to that. 5 Q Go ahead. 6 A (Thomas) There are those that have reported to me, 7 and very emphatically, more emphatically than I remember it. I , 8 don 't remember a vote. I don 't believe a vote took place. I 9 don't remember a show of hands. I don't believe it took place. 10 There are people that have come to me and said that 11 they know, that they are sure that a vote and a show of hands 12 aid not take place, and have articulated reasons for that. I 13 mean they are must stronger on this than I am, 14 And I have laid out for those people flutter of 15 hands, shows of hands, vote, polling, whatever it is. And they 16 said, no, there was no such thing. 17 MR. TURK: Can we get an identification on that ? 18 THE WITNESS: (Thomas) John Quinlan. 19 BY MR. OLESKEY: 20 Q Who is he? s 21 A (Thomas) John Quinlan -- 22 JUDGE SMITH: Excuse me. Go ahead. Answer. 23 THE WITNESS: (Thomas) John Quinlan works in my 24 office as a technological hazards specialist, and has indicated 25 to me that because of his background in life he is extremely Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13601 1 sensitive to what he calls divisions of the house, or voting. 2 And that he is convinced that there was no vote and there was 3 no show of hands. 4 BY MR. OLESKEY: 5 Q He was there? 6 A (Thomas) Oh, sure, sure. 7 Q What 's his background that makes him sensitive to 8 nuances like this? 9 A (Thomas) He is a former Massachusetts state senator. 10 MR. BARSHAK: Mr. Dignan will buy that one. 11 (Laughter.) 12 Mh. DIGNAN: I was going to say he was a town 13 moderator. But I know the difference between a vote, too. 14 (Board confer.) 15 JUDGE SMITH: Gentlemen, the Board has listened to 16 this testimony and I recommerded to my colleagues that we have 17 just heard enough about the vote matter. My recommendation has 18 been based upon, golly, more than three decades of trial 19 experience in which totally honest people have unbelievably 20 diametric versions of the same events, and we don't think that 21 it 's worthwhile inquiring any further into it. It is not going 22 to play a large role in our decision. It 's taking too much 23 time. It is causing anguish of people that is not deserved 24 because of the facts, and we don 't want to hear anymore. 25 That 's our ruling. The record is closed on it. l Heritage Reporting Corporation (202) 628-4888

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([ _ THOMAS - DIRECT 13602_ 1 MR. TURK: May I ask a clarification? 2 JUDGE SMITH: I would really prefer you didn't unless  ! , t 3 you really have to. I think the. message is pretty. direct i 4 there. f 5 If you think you have to. Mr. Turk, I want'you to. I 6 MR. TURK: I 'm not interested in making an issue - of  ; 7 this at all. The only reason we 're here is Mass. AG wanted to-8 be here with this issue. l 9 JUDGE SMITH: That may be. Whatever the -- that is in not important. The point is the Board has listened to all of } I 11 this. We have read all we want to about it. We are familiar i f 12 and particularly I am familiar with many areas of practice { ^ () 13 where people just have dif ferent perceptions, and they 're 14 honest people, and they Just -- it cannot be explained how they l 15 have these different perceptions. [ 16 And inquiry, no' matter how much inquiry you have you l l l- 17 never really do get to the answer. And it isn 't worth it. l 18 MR. TURK : My only clarification -- i 19 JUDGE SMITH: Huh?- 20 MR. TURK: The only clarification I ask is, are you f 21 closing the record on only the vote issue, or on the  ! 22 exprensions of views in the meeting? 23 JUDGE SMITH: We were talking right now about the  ; i 24 vote issue. We have not had that much testimony on the l 4 l 25 expressions of views. l () f Heritage Reporting Corporation (202) 628-4888

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     -()                                                                                THOMAS - DIRECT-                                                               13603~
                        .1                                 As.a matter of' fact, we don 't encourage a heck of a                                                               *

2 lot going there. Mr. Thomas nas quite. candidly conceded. He ',

3 says, well, if there had been a vote, he has no doubt it would  ; 4 have gone against-him.  ! 5 The parties are not so far apart that we have to beat' l 6 this to death, and we'have more important things. It 's been a  : 7 distraction, an expensive one, a personally unsettling one to 8 the people involved . and we 're ruling -it the ball is dead, f i 9 whatever metaphor. The ship is dead in the-water. 10 Claughter.) l l 11 JUDGE SMITH: Although we 're getting sick of that  ! 1  : 12 metaphor, but it 's over, it 's over now. Okay? 13 MR. OLESKEY: Thank you. Your Honor. . t 14 BY MR. OLESKEY: f 15 Q Mr. Thomas, immediately after the meeting did you l 16 report to your headquarters on what you thought should happen l 17 next? 18 A (Thomas) Yes, j 19 Q What did you recommend? l

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20 A (Thomas) Basically I recommended that we go forward,  ! 21 come up with a -- I don 't want to use -- I 'll use the word -- l 22 elaborate. What I was thinking is a very elaborate, 10 - 20 l 23 page paper that talked about the meteorology. I forgot to l l 24 mention that before. That was one of the other concerns I had l l 25 was the meteorology, some of the stuff that Mr. Lazarus had ' O. i l l Heritage Reporting Corporation  : (202) 628-4888 m m. , - . . ..%-.., _--- e % ,- _ -,,_,,,,,,-.cw.. ,m- - ,, , , - , , - . . - - ,-,_.,,__,y.,.,3 -,y.--n.,,,--,,~.c,,. 7p -.,,,-,,.....-,,,,m_,,-7,

A (./ THOMAS - DIRECT 13604 1 said seemed at variance with my understanding of the 2 meteorology in the area that talked about the issue of 3 administrative law not considering things not in the record; 4 talked about dose consequences; talked about fast-breaking 5 accidents, et cetera. 6 And that we should develop such a thing; come up with 7 the alternative language on J-9 and J-10-M, and vote it in the 8 RAC, and then go forward. 9 The agency, FEMA, had already determined that even if 10 J-10 and J-10-M were adequate, that FEMA came to the 11 conclusions that it came to. And I just wanted to finish my 3 12 RAC review to have it done and then we would g on. (~)/ (- 13 Q What happened to that proj ect that you recommended to 14 do this big paper that stated the divisicns, if you will? 15 A (Thomas) Well, I was asked if I was conv.\nced that 16 if we did such a paper that -- well. I was asked would we win 17 in the RAC, and I said that it was the flip of a coiq. That if 18 it was a really good paper, we might. But that my sense was 19 that we were -- the RAC was very much against us on this with 20 respect to J-9 and J-10-M, and was certainly not supporting the 21 testimony with respect to their advice on reasonable assurance. 22 And based on that the people that make the 23 allocations of money and staf f time in Washington said, well, 24 we 're not going to go forward on this. Forget it. We 're j ust 25 not going to do it. O V L Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13605 1 And I would raise that from time to time because I 2 just -- I wanted to get the RAC review completed and finished 3 and over with and run it on a separate track from the 4 testimony. S Q What happened to the RAC review process in the late 6 summer and fall of 1987. af ter this July 30 meeting? 7 A (Thomas) Well, the only -- at that time the only  ; 8 thing that we had left to resolve in the RAC review were the 9 open items on J-9 and J-10-M, and nothing happened. We had no 10 other items received in the RAC until the New Hampshire i 11 submissions of August and September. 12 So the answer to your question. I guess, is nothing. 13 Q Why wasn't there a meeting until January following i 14 the July 30 meeting? 15 A (Thomss) Because I was told that I wasn't going to 16 be given the resources to do -- to develop the material that 17 was necessary in my mind to come to closure on J-9 and , 18 J-10-M, and I was strongly advised by the headquarte s staff 19 / not to have a RAC meeting absent that material, and in fact not 20 to have one at all. 21 Q Who was that who told you that? 22 A (Thomas) Certainly Craig Wingo told te that, and 23 perhaps others. And I disagreed with it, but at the same time l 24 we were getting in towards the testimony preparation, and I was 25 personally pretty much out of time to move forward on it Heritage Reporting Corporation (202) 628-4888 l

l THOMAS - DIRECT 13606 , 1 anyway. 2 Q Did you request some assistance through headquarters , 3 to have consultants do a technical analysis or ovaluation of 4 the position put out by Dr. Bores and the NRC in that second 5 memorandum of June 4th? 6 A (Thomas) Well, sort of obliquely perhaps. What I -- 7 I requested really two different things. 8 One was with respect to closing out J-9 and J-10-M in 9 the RAC. I said I want to finish this off, and we need -- I 'd 10 like to do the best we can with this, and explain this to the i 11 RAC in a clear and intelligible fashion so that we do come to 12 the best result in the RAC, the most correct result. And that () 13 would have implied a technical analysis of the Bores paper; as 14 I said a sort of line-by-line analysis. 15 Secondly, I suggested several times over the summer 16 that it was my sense that the agency might want to very - 17 seriously consider reviewing the beach population testimony 18 because it was going to be extremely controversial, and that a 19 technical and peer review of a panel would be very, very much 20 in order, and suggested some consultants be involved and 21 brought into analyze the testimony and make sure it was what 22 the agency really wanted to file in September, because I didn 't 23 want to have us put in the position where for any reason we had 24 to change the testimony in the middle of the hearing. 25 Q What happened to that suggestion? Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13607 1 A (Thomas) It was rej ected because the people that I 2 at least wanted to get involved and that we felt were the 3 people that were needed were simply not available because of 4 the Shoreham hearing. 5 Q Did you role in preparing -- let me rephrase that. 6 What was your role in helping to prepare the 7 testimony that was filed here by FEMA under date of September 8 11, '87? 9 A (Thomas) I -- well, just to give you background. 10 Sequentially, essentially I was, number one, told that I would 11 be the witness on the beach population testimony, and I would 12 be a witness on all of the other panels with some assistance so p/ s 13 that, you know, I didn 't agree -- I didn 't want to be the only 14 witness en the beach population. I thought that that was a 15 serious tactical error on the agency 's part because it would 16 make me into a personalized target. 17 After the witness decision was made and I lost my 18 fight on that. I was detailed to the Office of General Counsel 19 and then worked with the other witnesses and with Bob Rospenda l 20 from Argonne and occasionally with other assistants in 21 reviewing the testimony and creating the errata sheet and the 22 other minor changes that were made to the testimony. 23 We also were reviewing at that time, or considering 24 at that time the development of an expanded version, 25 supplemental version of the beach population testimony that l l Heritage Reporting Corporation (202) 628-4888

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() THOMAS - DIRECT. 13608 1 more clearly explained how we had gotten to it and what it was , 2 all about, and addressed the concerns that, hey, this -- the 3 RAC is not with us on this one. This is -- there 's -a direct 4 disagreement with the NRC, but this is how FEMA reached the S conclusions it reached. 6 And I was involved with Mr. Flynn in creating.that 7 document, and we j ust, in terms of getting the testimony 8 prefiled, we weren't able to get it done by the time of the , I 9 prefiled date, and so we were holding that for use on direct 10 testimony when the beach panel was put on. 11 And then as we slid into the hearings I would come to 12 the hearings and be here, and go to Washington and get prepared 13 for the following weeks as we went along. 1 14 Q Did you have any particular obj ectives that you l l 15 wanted the agency to make clear in the portion of the testimony l 16 that was filed relating to the beach population? 17 A (Thomas) I thought it was very- very important for 18 the agency to explain how it had gotten to where it was, and 19 how much we were relying on the RAC, how much we weren 't 'i i 20 relying on the RAC, and that there was a disagreement with the ~ 21 NRC, and to really just lay it all out on one sheet of paper. j 22 And it was decided that, yes, it was a great idea. 1 23 We just didn't have time to do it at that point, and we 'd 4 24 handle it on the direct examination portion. 25 Q You 're talking about someone other than yourself. I () i l Heritage Reporting Corporation (202) 628-4888

p). \_ THOMAS - DIRECT 13609 1 take it. 2 A (Thomas) I'm not saying it was a deliberate 3 decision. I would say that it was decided by the amount of 4 time available. We just plain flat ran out of time. There are 5 a couple of drafts around of what Mr. Flynn had worked up with 6 my assistance on this subj ect. 7 Q One more incident in the summer of '87 before we dive 8 into the fall together, 9 There has been testimony here, and you also gave 10 deposition testimony as I think the Board is generally away, 11 about what you recall of a discussion with Grant Peterson in 12 Colorado in July of 1987 at a time when he was still a 13 consultant with the agency before he became the associate 14 director. I want to ask you some questions about that because 15 it 's not part of the record f rom you. It 's merely because you 16 testified to it in a deposition. 17 How did you happen to be in Colorado in July of 1987? 18 A (Thomas) There is an annual natural hazards 19 conference that 's put on by a nonprofit center in Boulder, 20 Colorado, in conjunction with any number of federal agencies. 21 and with the Natural Hazards Research Center in Boulder. AndI 22 try to attend that as often as I can to pick up information on 23 especially hurricane end other evacuation planning, hazardous 24 materials, latest information on dam break analyses, things 25 like thc+ D J Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13610 1 Q Okay. You were there? 2 A (Thomas) I was. 3 Q Had you ever met Grant Peterson before? 4 A (Thomas) I hed never met Mr. Peterson before, no. , 5 Q Did you meet him at this conference? 6 A (Thomas) Yes, I did. 7 Q What were the circumstances under which you met him? 8 A (Thomas) I arrived a day late for the conference for 9 some reason that I don 't recall right now, and went over, sat 10 down with Mr. Krimm at his table, and at coffee break, as I 11 recall, it was Tuesday morning. I can 't remember the date now. 12 I think the 12th of July, whatever it was it was that Tuesday 13 morning of the conference. We were on break. Mr. Krimm walked 14 over with me and said, Ed. have you met Grant Peterson. 15 I said, no, and he just said, Mr. Peterson, this is 16 Ed Thomas, works in our New England office on Seabrook and the 17 others. 18 Q Was that the entire conversation with Mr. Peterson at - i 19 that time? 20 A (Thomas) No. Well, close. Mr. Peterson said 21 something along the lines of Seabrook is a real mess, isn 't it. 22 A $5 billion plant sitting there idle because of FEMA problems 23 or emergency plan problems. 24 And then he looked at me, and he pointed and said,  !

                                                                         \

25 you 're Ed Thomas. And he waved his hand down in a gesture of i Heritage Reporting Corporation l (202) 628-4888 l l

() THOMAS - DIRECT 13611 1 dismissal, and he walked away.  : 2 So I remember the conversation very well. f 3 Q Was Mr. Krimm there for that portion of the  ; 4 conversation? . 5 A (Thomas) No. he was not. 6 Q He was not there? (Thomas) No, he was not. ' 7 A 8 He had just introduced me to Mr. Peterson and rushed 9 off. Mr. Krimm is a very active participant in these meetings. 10 and was somewhat harried all throughout the conference. l r 11 Q And that was the sum total of your conversation with  ; 12 Mr. Peterson that day? (' . 13 A (Thomas) I have read the testimony from Mr. Krimm 14 and Mr. Peterson that I was also introduced to Mr. Peterson 15 that night at the barbecue. I don 't recall that, but -- I j ust , 16 don 't recall it. I 'm not saying it didn 't happen. I don 't  ! L 17 remember. [ t 18 Q But the clear memory you have is of this morning 19 meeting which you have j ust described? 20 A (Thomas) Yes, yes. Very clear.  ! 21 Q Okay. I want to ask you about some events during the ' 22 course of last fall in connection with these hearings. 23 Was there a time in September af ter FEMA 's testimony , 24 had been filed when you had a conversation with Mr. Flynn about 25 the reaction that the utility was having to the substance of O , Heritage Reporting Corporation (202) 628-4888

(_)4 THOMAS - DIRECT 13612 l 1 FEMA 's testimony? i L 2 A (Thomas) Yes. . 3 MR. FLYNN: Your Honor, at this point. in 4 anticipation of the questions which are coout t(> come, I will  ; 5 raise a hearsay obj ection for the reasons that 1 suggested in 6 the colloquy this morning. And that is. -- well I think there . 7 is an additional issue here that I didn 't identity this 8 morning, and that is the relevancy. And I think oe know what 9 the subj ect matter is. It 's the so-called blood-on-the-floor  ; 10 discussion. 11 The hearsay problem is that Mr. Thomas will be asked 12 to report what I said about what Mr. Dignan said. Now you 've 13 got two levels of hearsay. It nay be Mr. Dignan 's comments 14 aren't being of fered for the truth of the comments, but the 15 fact that I reported Mr. Dignan 's comments is being of fered for , 16 the truth of that. So that 's the hearsay problem. l 17 And as I indicated earlier, if I have any quarrel 18 with the details at all, there is no way to get at that because , 19 I can 't be a witness. I 20 MR. TURK: Your Honor. 1 l 21 MR. FLYNN: And I would also like to suggert that 22 attorney / client privilege may also apply as well as the ] 23 relevancy obj ection which I have just suggested. 24 MR. TURK: Your Honor, !f thic is it. deed the so-25 called blood-on-the-floor commen* 'Sj ect o.'. grounds of l Heritage Report , 7 l (202) ( ,

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() THOMAS - DIRECT 13613 1 relevance. I don 't see that it relates to 0654, 2 JUDGE SMITH: What was the blood-on-the-floor again? 3 MR. TURK: Is this what you 're getting at. Mr. 4 Oleskey, because I'm not sure? If this is it. I j ust obj ect to 5 the line. 6 JUDGE SMITH: This is back at the hearing. 7 MR. OLESKEY: Back in September. 8 MR. TURK: No, sir 9 MR. OLESKEY: It was actually before the hearings 10 began as I understand it. There are other -- you 're thinking 11 of a later instance during the course of hearing, and this is 12 before the hearing. 13 And I am indeed going to ask a series of questions to 14 demonstrate some things that I think that constituted unusual 15 pressure put on this witness and in effect on his agency 16 through him, because I think it 's probative on the eventual 17 decision that took place in March, but which his testimony and i 18 that of other witnesses and also Keller and Cumming will show 19 is moving through the fall of '87 to the radical -- to the  ; i 20 dramatic shift in position that we 're all f amiliar with dated 21 March 14th. 22 JUDGE SMITH: So you want to take him -- you want to 23 take him step by step through the various, what you perceive as 24 inappropriate pressures -- 25 MR. OLESKEY: Yes. () l i Heritage Reporting Corporation (202) 628-4888  ;

i (). THOMAS - DIRECT 13614 1 JUDGE SMITH: -- which may have resulted in what? i 2 MR. OLESKEY: At least the difficulties he had.in 3 being perceived by the Board here in. testimony as someone who 4 was being -- I think the Board has said in. substance -- less > 5 than totally forthcoming and candid. l 1 6 My view is -- Intervenors ' view is that these 7 pressures have to be taken into account when you ~ evaluate how a

8 man appears on the stand under unexpected voir dire when he 's i

9 already been told that he and his agency are in trouble unless i 10 they reverse their position and withdraw their testimony. I 11 JUDGE SMITH: Well, okay. Let 's see if we can 't cut  ; 12 it short because it 's a very elusive thing. You know, how that f ( 13 would translate into candor and perception is such a tenuous 14 relationship.  ; ~

i 15 MR. TURK: Your Honor, the fundamental problem with  !

l . 3 16 Mr. Oleskey 's premise is he 's not going to be able to link up. l f 17 JUDGE SMITH: Well. I know. -i 1 18 MR. TURK: Whatever-may have been said, there 's been I i i 19 no one, either Mr. Thomas through is deposition or any other f i 20 person who said this was somehow a f actor in FEMA 's j 21 consideration of their testimony, or that made an impression on  ; q 22 anybody other than Mr. Thomas. , 23 -JUDGE SMITH: That 's fine. _That 's why I want to i 1 I 24 throw out this. I don 't think that it 's going to be too i 25 helpful because it is tenuous. But the point is you used the I () l [ i Heritage Reporting Corporation f

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() THOMAS - DIRECT 13615 1 term this morning, Mr. Oleskey, don 't be quite so circumspect. 2 MR. OLESKEY: Yes. 3 JUDGE SMITH: And, Mr. Thomas, you 'll recall I had a 4 conversation with you at the end of one day 's testimony in 5 which I -- with some exasperation -- suggested that you were 6 being too -- and I wish I had thought of the word 7 "circumspect", but I didn 't. I thought of the word 8 "conservative"; that it 's hard to get the information from you, 9 and that was a perception we had, And it just seemed to be a 10 very laborious process as I 've told you of f the record and on . 11 the record. 12 Now, do you want to say anything about that? I mean, O

\/   13 was there any merit whatever to our perceptions you believe, or     ,

14 was it just what? E16 15 (Continued on next page.) 16 17 18 19 20 . 21 22 1 23 24 ()  ; 1 l Heritage Reportdng Corporation j (202) 6'co-4888

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r T/17 1 THE WITNEL. ,ihomas) I don't recall the context  ; 2 of Mr. Oleskey 's "circumspect. " 3 JUDGE SMITH: But, no -- but the reason I thought of 4 it. I said, well, that 's it, you know, that 's the thing. 5 THE WITNESS: (Thomas) I thought of it, too. 6 JUDGE SMITH: Okay. That 's the thing that was -- 7 drove me to comment to you after the hearing. 8 MR. FLYNN: I can supply the date for you. Your 9 Honor, I remember that precisely. 10 MR. BARSHAK: I thought he was being asked if he  ! 11 wanted to respond to the Court. 12 JUDGE SMITH: Well, his testimony of October 7th and t s- ) 13 November 4th, you know. i 14 MR. FLYNN: And you 've also referred to the colloquy 15 after his testimony on January 13th. 16 JUDGE SMITH: I don't recall that. But nevertheless. ' 17 I think we 've given him the benefit of the perceptions that we ' 18 had and the opportunity to, if there is something to explain, i 19 to explain. ' 20 THE WITNESS: (Thomas) The only explanation I have t 21 is, I think with respect to the problem that you expressed to ,. 22 me on January 12th or 13th. I 'm not sure which it was, the i 23 conservative -- I 24 JUDGE SMITH: I think it was. 25 THE WITNESS: (Thomas) -- the remark about being ll Heritage Reporting Corporation (202) 628-4888 L.__---____

() THOMAS - DIRECT 13617 1 conservative. I think that there was a misapprehension on my 2 part about what your question was on a particular circumstance. 3 And this was brought to my attention by counsel. I kept 4 reading what I had said in response to your questions, in 5 response to other questions, and couldn 't understand what your 6 concern was, in all honesty.  ; 7 On reviewing that with counsel I was shown that there , 8 were two ways of reading something I had testified to that 9 sounded like I was saying two different things about the  ! 10 reasons for having the RAC meeting in early January. And I 11 wasn 't . I wasn 't clear enough when I was explaining to you -- 12 the particular statement is. I was saying the reason that we () 13 had the RAC meeting was to take care of an issue that I believe 14 I said had become a cause celebre in this hearing. { 15 The issue I was talking about was the J-9 and J-10-M  ! r 16 RAC review, not the vote. I think it was ambiguous. I i 17 understand what your problem was now. l 18 Very clearly, Mr. Flynn and I had taken care of, to 19 our satisfaction, all issues relative to the question of vote < 20 in November. And f rankly, sir, I never wanted in my life to 21 hear about the July 30th RAC meeting again after November. I 22 mean, it was -- after November it was an extremely unpleasant 23 topic for me.  ; 24 And that was certainly no part of our reason for  ! 7, 25 calling the January RAC meeting. I think when I explained why , V i Heritage Reporting Corporation j (202) 628-4888 i l __-_-______-_____l

() THOMAS - DIRECT 13618 i we had done that and used the language, there was a problem 2 that was a cause celebre that had to get resolved in this 3 hearing. It was not the vote, but finishing off J-9 and 4 J-10-M, finishing the RAC review and being done with it. And 5 then being able to explain how we had come to our conclusions G on the beach population. 7 JUDGE SMITH: After you testified on October 4th and 8 October 7th and November 4th the question came up about Mr. 9 Dignan 's comment to Mr. Flynn and the possibility that the I 10 matter should go to federal authorities in Boston, we decided  ! 11 to go back and read the transcript and see if there was  ; 12 something for us to do. I 'm sure that you reread that, and it 13 has to be very important to you. 14 And I haven 't read that -- my comments for weeks. 15 months actually, and I 'm only going by memory and please don't 16 be too analytical in the characterization of it, that we said  ; 17 that we found no reason to question your integrity, but we  ; 18 noticed that there 's a lot -- a great deal of frustration on , t 19 the part of Mr. Dignan eliciting the testimony that we felt 20 that he was entitled to that we wouldn't go into that aspect of 21 total believability or credibility of the testimony. , 22 So we had problems with your testimony on October 7th f I 23 and November 4th, which I characterized rather spontaneously as 24 forthrightness.

                        -                    25                                                        I won't ask you to agree with my characterization v

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() THOMAS - DIRECT 13619 i 1 because you certainly must feel that you were forthright. But 2 have you reread that testimony of October 7th and November 4th? 3 THE WITNESS: (Thomas) Have it? Yes. 4 JUDGE SMITH: Yes. Do you believe today that you 5 were as forthcoming with the details of testimony as you should , 6 have been as a federal official representing your agency? 7 THE WITNESS: (Thomas) Yes. 8 JUDGE SMITH: You do? 9 THE WITNESS: (Thomas) I do. 10 JUDGE SMITH: Okay.  ! i 11 THE WITNESS: (Thomas) Can I explain more? 12 JUDGE SMITH: Certainly do. l (} 13 THE WITNESS: (Thomas) I 'm told that one of the 14 Cardinal rules of practice is that you never disagree with the 15 Judge, but I guess since I 'm a witness I can take a shot at 16 that. Sir, I don 't believe you 'll find that your comments 17 following November were as you now recall them, if you read l 18 them again. 19 My recollection of your comments, and I haven 't read 20 it in a while, was basically that you saw no basis to question  ! 21 my candor. That Mr. Thomas had told you that this was a 22 dif ficult subj ect area. And -- l I 23 JUDGE SMITH: Integrity. , 24 THE WITNESS: (Thones) I won't dispute it with you. 25 It says -- the transcript says whatever it says. But my point ' Heritage Reporting Corporation (202) 628-4888

r  : (_m) THOMAS - DIRECT 13620 1 is, you said that you won 't -- your comment was -- your caveut , 2 was, we will not now discuss what weight we will give the 3 testimony because that 's inappropriate at this point. 4 I didn't see any reference in there to candor or , 5 credibility. , 6 My point is simply this, I was asked a series of [ 7 questions; to t'.ae best of my ability I gave an absolutely full 8 response. That at times, as I unde stood your comment in , 9 January, was too full a response that, well, it might be this. 10 it might be that. And I kept saying, let me expand on this and } I 11 whatever. [

   ^

12 And I also used a very unfortunate phrase that I  ! ['d 13 dan 't know why I did which was, I don 't went to mislead you. l 14 And by that I was trying to say, if I give you a short answer 15 to this, it 's not going to be correct. I want to give you a , t 16 longer answer that 's going to be more fuller and more , I 17 explanatory. 18 And I think that you 'll find when you look at the 19 November 4th testimony that I was trying to answer it. I had l 20 given answers on a couple of occasions -- at one point you had ' 21 said to me, answer his question, just say yes or noi and I 22 really had already said,' no , twice in the transcript. And you ; 23 said at that point, well, if you 've already said, no, you i 24 deserve an apology. l 25 My point is that I did my best with those questions.  ! () I Heritage Report i ng Corporation (202) 628-4888 ' 1

l I h THOMAS'- DIRECT 1362'1  : 1 1 And I think if we went back over each and every' one of them,  ! 2 there 's not a whole lot that I 'd change about them today in l 1 3 terms of giving you the. fullest possible explanation:in the l 1 4 world. , 5 Certainly the RAC meeting of July 30th is clear to om  ; i

           -6         now; I can remember more about it now than I could in~ October.                                                                           j 7         or November. .                           In October 'I couldn 't even remember the date of                                              .!

l 8 the darn thing and what month it was, j 9 It was something that was considered to be totally  ! 10 irrelevant in tt "ms of what the RAC said about J-9 and j 11 J-10-M to FEMAs position on the beaches. We had already  : 12 decided -- the agency had decided at headquarters ' level that O' 13 regardless of what J-9 or J-10-M said, the agency was  ; 1 14 developing the testimony it was. i 15 So I hadn't given that the kind of consideration that 'i 16 I might otherwise have given it, if it was pertinent to the l 17 t es t imor.y . ' i 18 All I can tell you is, I have been 'to my mind, as l 19 forthcoming as I possibly could be and answered the questions 20 to the best of my ability and truthfulness ~every single time. 21 And I think -- 22 JUDGE SMITH: How about your direct testimony, are  ; i 23 you satisfied with the completeness of that? See, that plays a 24 very large role in my concern about, when I said i

                                                                                                                                                              '1 25         fortheightness.

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    ..                                                                                                                          t I)                                                      THOMAS - DIRECT                                     13622.

1 THE WITNESS: (Thomas) Okay, let 's talk' about it.  ; 2 JUDGE SMITH: That was very important. 3 THE WITNESS: :CThomas) Okay, let 's talk about that. 4 JUDGE SMITH: Your-direct. testimony, you came to this. i

              -5 Board asking us .to accept FEMA 's position and put your: direct 6 testimony in context with the examination.                             And I 'm not saying l

7 that it is easy then to look down and see where the problems  ; 8 are, I 'm j ust saying looking back now. 9 THE WITNESS: (Thomas) Looking back now, I wish we 10 had finished off the special beach population-testimony that , t 11 Attorney Flynn and I were working on in September, because I  : 12 think it would have solved all your problems. , 13 Looking back now, I wish that FEMA had more clearly 14 brought out in October and November what it was we were saying, 15 what it was we weren't saying. I 16 It was clear to us that we were saying -the beach j 17 population. testimony is something special, it 's a matter of I 18 policy. And it certainly would have been much clearer when.we- i l 19 later said in the next page or two pages later in the prefiled  ; 20 testimony that the testimony was largely. based upon input from  ! 21 the RAC, et cetera, et cetera, collegial process of review, if 22 we had put an asterisk there and said, beach population 23 testimony is really not exactly quite on this same wave length 24 as everything else, because the beach population -- 25 JUDGE SMITH: So with respect to the beach population Heritage Reporting Corporation (202) 628-4888

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() THOMAS - DIRECT 13623 1 issue, is it your belief now that you'should have been more -- 2 you-should have had a greater explanation of the RAC process? 3 THE WITNESS: (Thomas) Judging from your comments, , 4 yes. Yes. I wish we had. -I had wanted to put that-- i n. When 5 I first developed what became the testimony. when I developed 6 the -- what became the answers to contentions. I want to go. i 7 through the whole thing right up through where we were June 8 3rd. I had -- I don 't know -- i 9 JUDGE SMITH: Well, put yourself in our position, you  ! 10 know, I think you can do that easily you 've been here- enough, l 11 and if you had-been the decider on the fact and the officials 12 charged with applying the law on the beach issue, do you think , ( 13- you would have wanted to know more about'the RAC' process? 14 THE WITNESS: CThomas) I think that looking back in i 15 hindsight, yes. Remember, though, please,' f rom FEMA 's j l 16 perspective we had decided that that was irrelevant to the 1 l 17 beach population. We were saying that the beach testimony was 18 essentially FEMA 's interpretation of NUREG-0654 and our 19 regulations, and a matter of policy. And we said that very 20 early on in the testimony. And we said-that in the testimony 21 at my request. We thought that was clear-enough. 03viously, 22 it wasn 't clear enough; I wish we had done it better. I 23 wish we -- 24 JUDGE SMITH: Well, you said one thing here that I 25 can focus on a little bit better. Your testimony is that Heritage Reporting Corporation j (202) 628-4888 i

(m) THOMAS - DIRECT 13624 1 this direct testimony referenced to the RAC and the RAC 2 collegial process was a generalized testimony. And that here 3 you have looking in there this little time bomb of the beach 4 population, and if you had to do it over again you might have 5 what, footnoted that or -- 6 THE WITNESS: (Thomas) Something. I mean, we 7 thought that flagging it early on in the testimony, stating 8 that the beach population testimony was a matter of policy was 9 sufficient. 10 Later we go on -- two pages later or thereabouts we 11 say -- we describe the testimony in general as being the result 12 of a collegial process, getting input from all these people. (3

 '# 13 That is strictly true. I mean, it --

14 JUDGE SMITH: Yes. 15 THE WITNESS: (Thomas) -- I mean, we got input from 16 people. And we had determined that we didn 't care what they 17 said, that -- and I think that we should have made that very, 18 very clear. I think that would have helped the Board. I think 19 it also would have helped if we had been more clear and more 20 insistent at FEMA 's level on what we were saying and what we 21 weren 't saying. 22 Several times in the transcript Your Honor did 23 misstate what we claimed to be doing. We never claimed to come 24 in with a RAC position. We never claimed to come in with

  , 25 testimony that was approved by the RAC.      We claimed to come in v

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i () THOMAS - DIRECT 13625 i 1 with something that had gone through a collegial process of 2 review that included input from the RAC. , 3 JUDGE SMITH: Exactly, you got it right there. 4 THE WITNESS: (Thomas) Okay. And I -- you know. S there was no intent, certainly, to deceive.the Board. There i 6 was.no intent to get into this awful mess that we had gotten 7 into. .; 8 JUDGE SMITH: Can you see now how it would -- how the  ; I 9 Board would infer that when you get RAC input'and RAC review. .; 10 and as a consequence -- as a part of.a consequence,~here you. . 11 are, that we wou4d assume that you had RAC support? 12 THE WITNESS: (Thomas) I can understand that-except l 13 that I note, that we did say that the' beach population i 14 testimony -- early on we said, it was a matter of policy. And 15 we were trying to distinguish -- the answer to your question - 16 is, yes, I can understand it. Yes. I wish we would have done 17 it better, l [ 18 Let me also point out, though, that that ---while I e 19 adopted that testimony as the introduction, that was written by 20 Attorney Flynn in cooperation with me, in terms of this.being a 21 personalized thing that Ed Thomas is not forthcoming -- 22 JUDGE SMITH: The policy aspects of it. The emphasis . 23 that it 's FEMA policy. 24 THE WITNESS: (Thomas) ifell, what I 'm saying- -- my j 25 point is that, if we 're talking about' is Ed Thomas the witness Heritage Reporting Corporation (202) 628-4888

t f I) THOMAS - DIRECT- 13626 1 forthcoming, honest and candid; Ed Thomas the witness didn't i 2 write all that testimony all by himself. Ed had input to:it. 3 'and it was developed as an agency posture. 4 JUDGE SMITH: Well, okay,EMr. Thomas, that 's a good j 5 explanation. But I 'm sure that one thing you have learned now 6 that it 's Ed Thomas who took the heat, when the testinony that  ; 7 you defended came under attack. 8 THE WITNESS: (Thomas) Well, my point.is, not: that  ; 9 I 'm trying to back away from that.' I mean, we did the best we i 10 ecould with it. There was nothing in it that I disagreed with. 11 If there had been something in there that I disagreed with,- I 12 wouldn 't have agreed to have my name on it. .; 13 JUDGE SMITH: Anything -- go ahead, I 'm sorry. 14 THE WITNESS: (Thomas) But my po' int was j ust that 15 there were other people involved, it isn 't Ed Thomas f ailing to 16 be candid, that the whole agency is responsible for that ' 17 document as well with me. - 18 And I hope that you 're not thinking that FEMA is. not i 19 candid with the Board. That 's my point is, not that I 'm trying. 20 to say, hey -- 21 JUDGE SMITH: Mr. Thomas, I had difficulty from.the 22 very beginning, and I have difficulty today receiving testimony 23 that says, that FEMA arrives at its position, and it uses -- 24 and here I 'm going to f all. You 're going to find something 25 wrong with it. But the essence is, the direct testimony says Heritage Reporting Corporation (202) 628-4888

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1 l ( THOMAS - DIRECT 13627' 1 that it uses RAC, it 's a collegial process. And FEMA arrived' 2 at its position and it uses RAC to do it. And you didn 't tell 3 us that RAC disagreed with you. Now, I still have trouble with 4 that and nobody has ever' explained it. 5 Your agency has it. Mr. Flynn has it. The closest-6 we 've come to it is that Mr. Peterson and Mr. McLoughlin came 7 here. But I still to this very moment, as I sit here..cannot' I 8 accept that testimony as being forthcoming. 9 THE WITNESS: (Thomas) Well, can I -- 10 JUDGE SMITH: Yes, and that is exactly why I 'm' saying 11 it, and I want you to get every opportunity to explain it. But 12 I still cannot accept it. () 13 THE WITNESS: (Thomas) Okay. 14 JUDGE SMITH: Let me give you, when I_was a. boy in 15 school I came home and told my mother that everybody in our. 16 class got a star for spelling good except one, isn 't that 17 great. You know who that one was? That was me, see. And if 18 you -- for you agency to come in and say, well, here:we.had 19 this RAC process, this RAC review and here is our result, and 20 not tell us that RAC doesn't support you, the Board 21 unanimously, this last time I consulted, felt that that was 1 22 less than forthcoming from your agency and f rom you, i 23 And that 's it, it 's j ust disagreement ~. And that 's, 24 but I think that 's about the best we can do unless you want to 25 do something more, j Heritage Reporting. Corporation-(202) 628-4888

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O THOMAS - maeCT 1ae28  ; 1 THE WITNESS: (Thomas) I guess there 's really not a i 2 whole lot more that we can-do other than to point out-from our. 3 logic -- I 'm not saying we were right. I'm just saying that we 4 did the best we could to flag this very early on in the [ 5 testimony. Page two we talk about FEMA considers the statement  ! 6 about the transient beach population to largely' involve matters 7 of policy. l 8 I absolutely agree with you. And if I had-it to_do l 9 over again, surely we would flag that again, later on when we 10 talk about this going through the process that-included input i 11 from the RAC. Yes, I had input; they disagreed. It blew right 12 past us. We didn 't mean to -- as an agency we certainly didn 't , 13 mean to mislead the Board. I certainly never picked-up on 14 that. I didn't really pick up on that until most recently . 15 reviewing the transcript and understanding what had gone on. 16 Certainly as a whole -- you look at the whole 17 testimony as Mr. Turk pointed out it 's 70 pages _ or whatever it t 18 was -- oh, it was over 100 pages long. Iithink. It 's quite a 19 package. That as a whole, there was extensive input from the 20 RAC. 21 There were two pages in there.that we flag as 3 , 22 statement of policy that I wish we had said, the RAC is not 23 with us on this and we don 't care; that 's irrelevant and we 're l 24 not going to pursue this, whether it 's lack of agreement or 25 disagreement. When I walked out of there July 30th that was Heritage Reporting Corporation (202) 628-4888  ! _ . . . _ _ - - _ _ . _ _ _ . _ _ . , . . _ . _ . - - _ - . . _ . . _ _ . - _ . _ ~

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 <                                                                        THOMAS - DIRECT                                             13629        i 1         important to me, they didn't quite disagree yet, we still had a-                                                              !

2 chance to turn this around. But they'certainly were not . i 3 supportive of it, and I wish we.had flagged that for you so we-  ! 4 had full closure. 5 I 'm sorry and I apologize' for my part in that. We , -  ! 6 as an agency, did our best. I did my best in developing this 7' to flag these issues. And it was at my' insistence that we had 8 sentences in there that flagged this as a special item. 9 JUDGE SMITH: Well, that 's a good lesson for . 10 everybody. And we have 50, 55 days of hearings, mountains of-11 papers. We need, particularly from government agencies, we l 12 should not have to look and search where the problem is; it ' O 13 should be laid out for us easy so we understand easily as  ! 14 we -- it 's impossible to misunderstand. 15 There 's too much -- too much information passing by,  ! 16 and we depend very heavily upon you to tell us or advise us 17 where the right. road is. l 18 THE WITNESS: (Thomas) I 'm certainly not disagreeing  ; i 19 with you. Let me just add that. -it might be worth -the Board 1 20 knowing and maybe even looking at, the draft testimony we were i l 21 developing on the transient beach population which we weren't l 22 able to get done in time for the prefile, but which was our 23 intention to use, when we actually put the testimony of the 24 beach population on. When it became. as we understood it, 25 important for the Board to understand where we were. And that Heritage- Reporting Corporation (202) 628-4888

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n (,) THOMAS - DIRECT 13630 + 1 goes through the whole process of RAC review and everything 2 else. 3 JUDGE SMITH: Well, you made a good point because I 4 recognize that that testimony never was actually offered, it 5 was prefiled and that 's it. 6 MR. FLYNN: Your Honor -- 7 JUDGE SMITH: Mr. Flynn, et/17 8 (Continued on next page.) 9 10 11 12 (")

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(j THOMAS - DIRECT 13631 T18 1 MR. FLYNN: Your Honor, I am concerned -- well, it 2 may be that my obj ection at this point is moot because I don 't 3 know what Mr. Oleskey 's intentions are, and we will let him 4 announce that. But you 've raised another matter, and I have to 5 say I 'm concerned about your comment that even now FEMA has not 6 explained to the Board 's satisf action -- 7 JUDGE SMITH: No, that 's not what I intended to say. 8 What I intended to say is I go back over -- as I go back over 9 the testimony, the direct testimon; explaining how -- I have it 10 right here. 11 Maybe something we 're missing, and maybe it 's worth 12 this time. Huh? You don 't think so. Well. (3 (/ 13 JUDGE HARBOUR: I think we 're beating a dead horse. 14 MR. FLYNN: Perhaps we don 't need to belabor the 15 record with this. Let me just say that if on further 16 reflection the Board has unsatisfied concerns, if you will 17 identify them for me either privately or on the record at a 18 later time, I will be more than happy to address them. 19 JUDGE SMITH: Read it from Page 4 of the direct 20 testimony. 21 MR. FLYNN: Of what date? 22 JUDGE SMITH: Of the offered direct testimony that 23 you submitted on September something. Number 11. 24 MR. FLYNN: Yes. 25 JUDGE SMITH: Page 4 Positions which FEMA has taken 7-U Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13632 1 on the NHRERP, the exercise of NHRERP and the contentions which 2 the Atomic Safety and Licensing Board has admitted were arrived 3 at through a collegial process of review by FEMA 's regional 4 office in Boston, consultation with FEMA 's regional assistance 5 committee. RAC, and Argonne National Laboratory, and review by 6 FEMA state and local programs and support directorate in 7 Washington, D.C. 8 The RAC is an interagency committee constituted in 9 each of the 10 standard federal regions pursuant to 44 CFR 351. 10 The committee is composed of representatives of FEMA, the NRC, 11 et cetera. FEMA and the RAC have provided comments, and it 12 goes on, and it tells all about the RAC. It tells, you know, eg k/ 13 that they are part of the collegial process, and yet we don 't 14 find out on the most important issue in this whole are that RAC 15 reviewed it, yes, and they disagreed. We don 't find out. 16 And I 'm still not happy with it. But as Judge 17 Harbour says, I 'm beating it to death, and I think I am, and I 18 think we 'd better go on with it. But that fall, short of my 19 expectations. 20 THE WITNESS: (Thomas) Your Honor. l 21 MR. FLYNN: I understand that, Your Honor. 22 THE WITNESS: (Thomas) Before you lose -- Page 2, I 23 think, has to be read in context with that, in all fairness. 24 JUDGE SMITH: Policy, it 's RAC -- I read that, yes.

, 25            THE WITNESS:   (Thomas)   We meant to split it off.

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,~ t THOMAS - DIRECT 13633 1 Remember, we never put the beach testimony on. Please remember 2 that. 3 JUDGE SMITH: I got it. I 'm t.a t - - I 'm long since 4 trying to beat up on you, Mr. Thomas. 5 What I'm trying to state right now is the 6 responsibility that has been given to us by the Atomic Energy 7 Act and by the Notice of Hearing cannot be met -- cannot be met 8 in this ca.ae and in any case in the future unless we have more, 9 better help. You 've got to lay it right out clean for us. We 10 can 't read it and understand all these nuances. 11 Of course, that 's why we have an adversarial process 12 here, because others can. But that never 11 a hundred years r] (/ 13 would we ever have divined from there, or even questioned c 14 whether or not the RAC had supported the position. It wouldn't 15 even have occurred to me to even question that it happened. 16 Now that 's in retrospect. Now you know it now. I 'm - 17 just saying that we need careful help, careful help when a 18 government agency comes to us, which we give a great deal of 19 respect to, that they 've got to be very careful that we 20 understand exactly what the problem is. 21 MR. FLYNN: That explanation is helpful. Your Honor. 22 Thank you. ) 1 23 JUDGE SMITH: Mr. Oleskey. l l 24 MR. OLESKEY: Yes, I had a pending question, Your j i Honor, and then there was an obj ection or two, and we went off Heritage Reporting Corporation (202) 628-4888

-) THOMAS - DIRECT 13634 1 in this other direction which is associated with it, but 2 doesn 't fundamentally get me to the line of questions and 3 answers I want to have. 4 So I guess we 're at a point we have to deal with the 5 obj ections, because I'm going to press the questions. And then 6 if you want to know more about my purpose. I 'll be happy to 7 tell you. Fundamentally -- 8 JUDGE SMITH: Well, the -- no, what happened was, as 9 I recall, you were going to elicit information of influences 10 upon Mr. Thomas. 11 MR. OLESKEY: Attempted influences on Mr. Thomas. ' 12 JUDGE SMITH: Attempted influences on Mr. Thomas. (-} 13 MR. OLESKEY: And through him, in my judgment at 14 least, the egency as part of the explanation that the 1 15 Intervenors wish the Board to understand, which is that we 16 think there were a number of influences out of the ordinary 17 force on FEMA. 18 JUDGE SMITH: But you characterized it, and I didn 't 19 understand your purpose, you characterized it as this may have 20 diven rise why the Board had some misperceptions of Mr. 21 Thomas 's testimony. 22 MR. OLESKEY: Yes. The aspect of it that relates to 23 Mr. Thomas as distinguished from the agency, in my judgment, 24 could have affected, and maybe you have closed that off. I 25 don 't know. I guess you have to make that conclusion. Heritage Reporting Corporation (202) 628-4888

i () THOMAS' - DIRECT 13635 1 JUDGE SMITH: Well. I think it should be put to bed 2 now. t 3 MR. OLESKEY: Well, I have -- 1 4 JUDGE SMITH: Since we have'the last word.' j 5 MR. OLESKEY: Except I haven 't had a . chance to ask -5 6 him what effect on'the conduct of his duties as perceptions of i 7- how he had to appear as a witness these.various-instances that i 8 were reported to him meant. - That 's separate and apart from the # 9 issue of the inference that I want you to draw eventually, and l 10 you can draw 'it or not draw it. - It 's open 'on ' the record, I 11 suggest, that the agency 's conduct: was af fected ultimately in a 12 decisive manner by a series of influences of which this [ () 13 particular line is only one.  ; 14 Also included, obviously, as you know now from our 15 position, the meeting -of January -19th with the clash ~ between 16 FEMA and the NRC and Mr. Stello 's very vigorous and forthright j 17 comments, we 're going to make ~ war 'on your agency unless you 18 recede. We think it 's part of . a package. 1 19 MR. TURK: Characterization improper. l 20 JUDGE SMITH: You have a categorical obj ection. I l

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21 don 't think we can handle it categorical 1y.~ I think you had 22 better ask your questions one at a time. ] 23 But go ahead with your -- 24 MR. TURK: I was going to say I was -obj ecting to the - i 25 characterization of Mr. Stello 's comment, but I won 't I i Heritage Reporting Corporation (202).628-4888 l e--.-~~,en ,----,w mev,-,,,- ,,vr - ,,,, --s--+--<--,-,--wn,-- , rg , N -e ~ s- we ,+, - , , - ,,Nmv

(m THOMAS - DIRECT 13636 () 1 interrupt. Unfortunately, I 've done that. 2 MR. FLYNN: If Mr. Oleskey is going to press the line 3 of questioning, then I will press the obj ection. And that has 4 to do with r earsay, and relevance, and attorney / client 5 privilege. 6 MR. BARSHAK: I think Mr. Flynn is replacing me 7 improperly. It 's not your privilege. It 's the client 's t 8 privilege. It always has been in the law. 9 MR. FLYNN: The client I 'm ref erring to is FEMA. 10 MR. BARSHAK: At this point he 's being questioned as 11 a conversation with you, and you are apparently asserting an 12 attorney / client privilege with the witness. The law has always n (/ 13 been it 's the witness 's privilege, not yours. And as his 14 lawyer, I have advised him he can waive it here. 15 So far as hearsay is concerned, anything Mr. Dignan 16 says on behalf of the Applicant, if he 's going to repeat it as 17 you have told him, it isn 't hearsay. It 's the opposite. 18 That 's the clearest example of an admission. 19 MR. TURK : Your Honor. I 'd like to note two things. 20 One, in response to Mr. Barshak, I think he 's wrong. 21 Unless he can establish that Mr. Thomas was not within the 22 scope of the privilege -- the scope of FEMA for which Mr. 23 Thomas -- which Mr. Flynn was representing when the <

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24 conversation took place, then it is Mr. Flynn's prerogative to 25 assert the privilege on behalf of the client which is the j o3 l l Heritage Reporting Corporation (202) 628-4888 l l

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i O- THOMis - 01 Rect 13e37 11 agency with which Mr. Thomas was aligned.  !

2 Now I 'll . let Mr. Barshak respond, but I want to note ] 3 one other thing. l 4 My obj ection to the. line of . question is relevance. f 5 Whatever may have been the :importance .that Mr. Thomas-. attached l 6 to the blood-on-the-floor comments, it doesn 't relat'e, . unless  ; 7 Mr. Oleskey can show us that he 's going to connect it, it .; doesn 't relate in any way to pressures on FEMA that' may have I 8 9 affected a change in testimony.  ! 10 MR. BARSHAK: Well, I guess my -- the only thing I l t 11 would add, Your-Honor, is if I can add my 30 years to your 30 I 12 years. If anyone wi'll say that the attorney / client-privilege j () 13 belongs to the lawyer instead lof the client, ,that 's news to me.- 14 JUDGE SMITH: We 've recognized in 'the past that FEMA  ! 15 itself through Mr. Flynn, its gen'eral counsel, has a right to j 16 assert a privilege, and we 've recognized both the - i 17 attorney / client privilege and the word product privilege with l 18 respect to Mr. Flynn 's conversation with Mr. Thomas.

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19 Now it may very well be that there was'another 20 privilege that Mr. Thomas could have that you could waive. 21 They 're maybe overlapping privileges. I up you six years on I l 22 that 30, 23 (Laughter.) 24 MR. BARSHAK: I'll up you three years on your 36. i 25 (Laughter.) () Heritage Reporting Corporation (202) 628-4888 l

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13638 -i ( THOMMS - DIRECT 1 MR. OLESKEY: I understood:that one of the. reasons 2 that FEMA told Mr. Thomas to get his own counsel was because of 3 the eventuality. of a series of. questions just like this. 4 MR. TURK: Well, the question is when th'e: privilege , 5 is -- when the conversation for which privilege is asserted 6 took place was the communicant part of the agency which~had the 7 privilege, unless you can establish that if that was not true 8 at the point of the conversation, there 's been waiver of . the 9 privilege pertains. 10 MR. FLYNN: I agree with Judge . Smith 's analysis of 11 the point that I was trying to make. 12 JUDGE SMITH: Well, we will recognize 1the. FEMA ( 13 privilege. Now whether we will decide that the. privilege does  : 14 not withstand the need of the hearing or not is another matter. 15 So give me the privilege in context. What is the , 16 question? 17 MR. FLYNN: I think we 've established. and Mr. 18 Oleskey can correct me if I misstate something. He 's about to 1 19 ask the witness about statements -which I 'm alleged to have made- l 20 to him reporting statements which Mr. Dignan made to me about 21 "the blood on.the floor". 22 And the conversation took place -- the conversation 23 between me and Mr. Thomas took place as we were preparing 24 testimony. 25 JUDGE SMITH: As a consequence, Mr. Thomas,- of a Heritage Reporting Corporation. C202) 628-4888 -

() THOMAS - DIRECT 13639 1 conversation you had with Mr. Flynn which may or may not have, 2 use the express "blood-on-the-floor", did you do anything or 3 did it affect your duties in any way? 4 THE WITNESS: (Thomas) Not consciously. 5 JUDGE SMITH: Okay. 6 MR. TURK : No connection. 7 JUDGE SMITH: All right. 8 BY MR . OLESKEY: 9 Q Following -- I 've been asking you about an instance 10 in late September, Mr. Thomas, prior to the onset of the 11 hearing, correct? 12 A (Thomas) Yes. r's (> 13 Q All right. After that, in October and November, were 14 there later conversations with Mr. Flynn and/or Mr. Cumming in 15 which other comments made by counsel for the utility about you 16 and tr.s agency 's testimony were reported to you? 17 MR. FLYNN: Same obj ection. 18 BY MR. OLESKEY: 19 Q l's or no. 20 MR. TURK: Well, there 's an obj ection. 21 MR. OLESKEY: Well, I'm entitled to a yes or not. 22 MR. TURK: Not unless you get -- 23 JUDGE SMITH: Now what a minute. 24 MR. TURK : -- of the obj ection. 25 JUDGE SMITH: There is an unprivileged allusion to ?7,s V i Heritage Reporting Corporation l (202) 628-4888

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13640 ([) -THOMAS - DIRECT 1 the events you 're talking about : the letter sent to us.' the 2 discussion, .everything else. There 's an unprivileged ' allusion i 3 to it. Go straight to'those circumstances, those events affect. 4 his j udgment or' his agency 's policy or whatever you 're try'ing [ 5 to get.at. 6 You don't have to into the privileged. There 's ] 7 sufficient unprivileged disclosure of that information. 8 MR. OLESKEY: Okay. 9 BY MR. OLESKEY: 10 Q Understand what the Judge >is saying? 11 I take it the Judge.is saying in connection with the  : 12 matters that were discussed between counsel and the Board, q O 13 namely, the report that we made in a letter.'to the Board that ,j i 14 you had been told by your counsel that because of your November { 15 4th testimony. Mr. Dignan had said he was considering or how  ! l 16 would the agency or how would you react if the testimony were l 17 referred to the U.S.- Attorney'or an attorney in. Massachusetts. l t 18 MR. DIGNAN: I obj ect. There is not one ounce.of 19 evidence that that was allegedly said, Mr. Oleskey, and this 20 thing has been gone into by a letter, reviewed by the Board and 21 your attempt to have me censured was thrown.out. 22 MR. OLESKEY: I thought you were directing me to 23 put that -- to summarize that question to him. Your Honor. I 24 don 't understand Mr. Dignan 's ire. I really don 't. 25 MR. DIGNAN: That is not a fair summary of what was Heritage Reporting Corporation (202) 628-4888 _ . . . _ _ - . _ _ _ _ . . . _ _ _ . . _ . . _ . - . - - . _ . , , _ .. ,. _ _ _ - .. _ .~,,. .

() THOMAS - DIRECT 13641' 1 in the letter, what was alleged or anything else. 2 JUDGE SMITH: All right. Without trying to 3 characterize what happened, go to a common characterization of 4 what happened, and -- I mean, skip over that and go to what 5 effect it may have had upon -- go to his perception of what 6 happened, leaving out -- that 's not going to work either. 7 MR. FLYNN: Your Honor, I think it 's perfectly 8 obvious to the witness what letter we 're referring to, and I 9 think the qcestion can be put to him without anymore 10 elaboration than that. 11 JUDGE SMITH: Well, you know the letter I 'm talking 12 about. Counsel wrote us a letter -- () 13 THE WITNESS: (Thomas) Yes. Your Honor. 14 JUDGE SMITH: -- saying that Mr. Dignan should be 15 disciplined. 16 THE WITNESS: (Thomas) Yes, Your Honor. 17 JUDGE SNITH: Sanctioned. 18 Now did the events as you perceived them to be 19 underlying that letter affect your performance, and did it  ! 20 af fect your agency 's performance? 21 THE WITNESS: (Thomas) All of the events underlying 22 the letter, not just the incidents referred to in the letter, 23 did have an affect on me and my performance, and therefore the 24 agency 's performance, at least with respect to efficiency. 25 Let me be clear on that. We wasted a lot of time Heritage Reporting Corporation (202; 628-4888

(,) THOMAS - DIRECT 13642 1 worrying about it, and calling RAC members, and doing this. 2 that and the other thing, to calling other people to find out 3 what conversations I may have had with some person named Tom 4 Hubbard, doing this that and the other things took a lot of my 5 time in November and December, and took a lot of agency time as 6 well. 7 JUDGE SMITH: Did it change any determinations other 8 than induce inefficiencies, did it change any determinations 9 made by your agency? 1 10 THE WITNESS: (Thomas) It did not by me. I have to 11 answer I don 't know with respect to the agency. 12 JUDGE SMITH: All right. I ('/ s-T 13 BY MR. OLESKEY: I 14 Q Did it affect how you approached your testimony here 15 as a live witness? 16 A (Thomas) It caused me very, very considerable 17 concerns as to, in essence, what I was goir.g to be put through 18 in order to do my job. Yes. 19 JUDGE SMITH: Did you have a concern that unless you 20 oriented your testimony in a certain way you would be perceived 21 as not being candid? Did you feel free to come here and 22 testify to the truth as you know it? 23 I 'm suggesting for your consideration that the events 24 preceding your appearance here may have put you in a situation f, 25 where you 're concerned that if you tell the truth, you may not U Heritage Reporting Corporation (202) 628-4888

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Y r em 13643 Q- THOMAS H DIRECT i be believed, and that therefore.you should perhaps bend a.  ! 1 2 little . bit toward your adversary 's . point lof view so that you . 3 will be more believable. . . 4 Do you unders'tand' that ?  ! I 5 THE WITNESS: (Thomas) I'm. not sure I really do in 6 all honesty. 7 JUDGE-SMITH: All right. l t 8 THE WITNESS: (Thomas) Maybe I can tell you what was  ! 9 going through my mind and see if we-can go from there. I 'm for l 10 some reason having trouble with your questions.  ! i 11 What it caused me to do was to be very, very~ f 12 concerned that in essence, slanderous accusations, false l () 13 accusations would be made against me. To be'very concerned i 14 that my name would be' dragged through the mud... [ E  : 10 How much influence that may have had, I don 't know. 4 16 In terms of my appearance in January,'I think it very clearly , i 17 caused me.to be incredibly cautious in answering the questions,  !

                                                                                                                                                                                                     .t 18           because I didn't want to make any misstatements at all. and I 19           think that was perhaps partially what Your Honor was                                                                                                         !

20 complaining about. You may.say this, you may'mean.that, and  ; 21 I'm going to try and be very expansive in the answers. ' 22 Is that responsive to your question? E18 23 (Continued on next page.) i i 24 i fs 25 ] (-) { Heritage Reporting Corporation  ; (202)-628-4888

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i () THOMAS - DIRECT 13644 t/19 1 JUDGE SMITH: I guess. I don 't know. You don 't 2 feel, you didn't feel any pressure to tailor your testimony, to 3 accommodate the view of your adversary to avoid being charged 4 with -- to avoid being slandered. 5 THE WITNESS: (Thomas) Yes, I felt that very much. 6 JUDGE SMITH: Oh, did you? 7 THE WITNESS: (Thomas) Yes. 8 JUDGE SMITH: Did you alter your testimony to avoid 9 being slandered? 10 THE WiTNE5S: (Thomas) No, sir. 11 BY MR. OLESKEY: 12 Q Mr. Thomas, if I understood you what you 're saying 13 is, you altered your manner of testimony for fear that l 14 something you said would be used against you on account of 15 these instances; is that an accurate way to sum it up? , 16 A (Thomas) Pethaps. What I 'm saying is that I may 17 have altered my way of testifying to be hypercautious about 18 everything I said out of the belief that my testimony would be 19 distorted and attempts would be made to slander me. 20 JUDGE SMITH: Okay. Let 's move on because this 21 simply cannot be of any use to the Board or to the record as to

• 22 whether the emergency planning regulations are being complied 23 with unless you have something else you want to add --

24 THE WITNESS: (Thomas) No, sir. 25 JUDGE SMITH: -- for yourself. Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13645 1 MR. OLESKEY: Okay. 2 JUDGE SMITH: That 's a very ethereal approach. 3 MR. OLESKEY: I think -- I happen to believe that the 4 last series of questions and answers which you put and I put 5 made the point that I think is appropriate that went to the 6 Board 's prior perception on par + # the witness. And it was, 7 as I said, in part for that reason I offered it. And so I 8 don 't think of it as ethereal. I think of it as productive. 9 JUDGE SMITH: Okay. 10 MR. OLESKEY: But that 's why I 'm here and you 're 11 there. 12 THE WITNESS: (Thomas) Can I just add one thing in (~s

 \   13  response to your question. I would like to add one more thing 14  and that is, the one comment that was related to me that you 15  got in a somewhat distorted version in the letter alone would 16  not ! tve caused me the apprehension I felt.

17 JUDGE SMITH: Standing alone. 18 THE WITNESS: (Thomas) That 's right, I would have 19 shrugged it of'f. 20 MR. OLESKEY: Can I have a moment with my notes? 21 JUDGE SMITH: Sure. 22 (Pause) 23 BY MR. OLESKEY: 24 Q Was there a time in the fall of 1987 when there was a 25 question whether or not you ought to attend a meeting between Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13646 l 1 your agency and the NRC or to be part of some discussion with 2 the NRC, and Mr. Krimm advised you that he didn't want you r 3 there for a particular reason? , 4 A (Thomas) Yes. 5 Q Would you describe in time and context that 6 particular incident, please? 7 A (Thomas) Yes, sure. This was in the period when we 8 were doing Seabrook witness preparation, as I testified to 9 generally, pretty much the whole of f week when we weren't in 10 Concord I 'd be in Washington, D.C. as part of the witness 11 preparation. And there was to be a meeting with the NRC on, I 12 believe, it was October 15th and there -- I was giving talking i A (-) 13 points to review and I was part of the analysis of what FEMA 14 wanted to talk about, and it pretty well all concerned sites in 15 FEMA, Region 1. And I suggested that I'd like to go along and 1 16 hear what was said and contribute possibly. , 17 And my very, very strong recollection is that it was 18 Mr. Krimn. He and I, since I testified in deposition, have had 19 couple of conversations about this, but my strong recollection 20 is that it was Mr. Krimm and not one of his staff who said to l 21 me, Ed. you can 't go, you 're a red flag to the NRC and it would 22 just upset them or words to that effect. 23 Q Was it explained why you would be a red flag to the 24 NRC? 25 A (Thomas) I 'm not prepared to swear it was. There i Heritage Reporting Corporation I (202) 628-4888

                                                                          ]

i () THOMAS - DIRECT 13647 1 were other conversations .along that line during-that period,  ! 2 mostly focusing in on -- sometimes they 'd' focus; in on the beach l l 3 population testimony and sometimes on'the Pilgriiv snif- i 4 initiated review. But the-sense was that'the -- at least the f i 5 NRC headquarters personnel were very, very upset s.11h Ed Thomas , 6 in Region 1.  ! 7 Q' Now, this deposition -- there was testinc y at your , 8 deposition and Mr. Krimm was asked about it here'when he was i 9 here, of a conversation that you had with him several years 10 earlier in connection with the discussion of policy disputes 111 between FEMA and the NRC and whether he had said to you .at some f 12 time on that earlier occasion in substance, "You know, wh.never  ! () 13 there 's a clash between the agencies the NRC goes to the White 14 House and FEMA loses." So let me ask you, was there any such j 15 conversation between the two of you at any time? { l 16 A (Thomas) Yes.  : i 17 Q When was it and what was the context?  ! 18 A (Thomas) My best recollection is that it was  ; 1 19 somewhere between 1982 and 1984. My sense.is, it was probably 20 in the middle of that period. It was during intensive 21 controversy over the Shoreham Nuclear.Powerplant site. Mr.  ; 22 Krimm was not satisfied with the position that the Ldency was  ! 23 taking on certain aspects of the Shoreham planning and had 24 recused himself, he wouldn 't be part of the issues, he had  ! 25 recused himself from that. And he and I went out to dinner and i () Heritage Reporting Corporation $ (202) 628-4888 l

     / ~\

(_) THOMAS - DIRECT 13648 1 we were talking about events. Is that responsive to your 2 question? 3 Q Is the substance of what I 've indicated what no aaid 4 to you on that occasion? 5 A (Thomas) Yes. 6 Q Did you talk to him about that since then? 7 A (Thomas) Sure. 8 Q Have you asked him if he can recall it? 9 A (Thomas) Yes. 10 Q What 's he say? 11 A (Thomas) Well, he initiated a call to me to say that 12 he had reviewed my deposition and he really didn 't remember the () 13 conversation about the calls from the White House or we go to 14 the White House or whatever the form was, the way the battle 15 got taken to the White House and FEMA lost. 16 And I started to refresh his recollection by 17 reminding him of the year and what restaurant we were in, et 18 cetera. And he told me that he j ust didn 't went to hear about 19 that, he j ust didn 't remember it and that was the end of it. 20 After he testified and I read his testimony I did i 21 mention it to him during the course of a phone call that he had 22 placed to me on other business and we talked about this at a i l 23 little bit more length and I emphasized to him that I was 24 talking about something that had come up during the course 25 of -- a time when he was very, very dissatisfied with the I

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Heritage Reporting Corporation l (202) 628-4888  !

3Y:. s () . THOMAS - DIRECT 13649-1 agency 's position that we were taking with -reapect to Shoreham 2 and whether there would be an exercise of-the Shoreham Nuclear-3 Powerplant and the'like.- And perhaps, other issues ~related to , 4 Shoreham. 5 And he told me'that, well, he really had never meant

6 - to testify that conversations hadn 't taken place' , _ either the 7 red flag conversation.or-the White House conversation, .thate 8 he 'd meant to say that he j ust didn't remember them. A nd ' went 7 9 on to sayrthat as far as he was concerned he understood how 10 sometimes when one party was particularly struck'with a '

11 conversation, especially' if it was f rom several years old it 's 12 hardly surprising and the other party didn 't remember it. And () 13 went on to volunteer that he and I have known'each other almost-14 15 years. He 's hired me. He has a very special relationship 15 with me, he 's essentially my. mentor, almost a father figure for 16 me. 17 And that he said that he 's never known me to tell a ~ 18 ' lie. That he believes I was telling the truth, even if I was 19 wrong in my recollection, that it was truthful. And that he is , l 20 shocked that anyone could think that:what he testified to or

21 could in any way indicate untruthfulness on my part. And said 22 that he would be very willing to come forward and explain that 23 to the Board that he didn 't understand that that was the nature 24 of the questions he-was being asked.

, 25 Q Now, I 'm going to ask you some questions about a 1 () Heritage Reporting Corporation

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() THOMAS - DIRECT 13650 1 different topic. There 's an exhibit in evidence which is, I 2 believe, Mass. Attorney General 37 which is a document styled 3 essentially "NRC proposed rebuttal testimony to FEMA." Are you 4 familiar with that document? 5 A (Thomas) I don 't know it by that number. I know of  ! 6 a document of proposed rebuttal testimony or draft rebuttal 7 testimony, something like that. 8 Q Let me show you a copy. It 's dated October 5, 1987, 9 there 's e cover letter f rom Mr. Turk with it? 10 A (Thomas) Yes, I 'm f amiliar with this document. 11 Q Did you see a copy of that some time shortly after it 12 was sent out on October 5th? , () 13 A (Thomas) By shortly we mean within a week; yes, 7 14 did. 15 Q Other people in the agency saw it? 16 A (Thomas) Before I did, yes. As I recall -- gee, I 17 don 't remember who was the first one to get it, and shortly  ! 18 after that I got it. 19 Q Were you a party to discussions in the agency about 20 the significance of this filing by the NRC staff for FEMA 's 21 testimony on the beach population in the hearings? l 22 A (Thomas) Yes. Yes. l 23 Q What was FEMA 's reaction when various of ficials 24 4.ncluding yourself reviewed this staf f filing v' t: 1 is now l l 25 Exhibit Mass. AG 37? l l Heritage Reporting Corporation (202) 628-4888

- 1; 1 ([) THOMAS - DIRECT 13651 j 1 MR. FLYNN: Excuse me,- can we have the preliminary i 2 question of who these conversations were with.  ! i 3 MR. OLESKEY: Sure. ' I 'm hoping he 's . going to = go to l 1 4 that.  ! 5 THE WITNESS: CThomas) Yes. W hat I was going to:

                                                                                                                                             -_                                                           .I 6    point out is. FEMA .as an agency doesn't have reactions to                                                                                                        j l

7 things.  ; 8 BY MR. OLESKEY: 9 Q I understand.  ! 10 A (Thomas) I mean, people have reaction. 11 Q When I say that it 's a shorthand way of asking you to l k 12 tell us what' people said to you and what you said to them l () 13 within the agency about how to respond to this? [ 14 A (Thomas) Let me start out by saying that the first 15 reaction was by Attorney Cumming who -- I'm- sorry..' witness l 16 Cumming who went on at some length about what I at least j 17 consider to be -- I don 't want to characterize it'. He said i 18 some things about Attorney Turk, which I 'd rather not repeat, -g 19 and indicated that this was inappropriate conduct on the part f i 20 of the Nuclear Regulatory Commission, that we were their j l 21 experts on offsite emergency preparedness planning.  ; [ 22 Sequentially after that I certainly had conversations j t l 23 with Attorney Flynn many times, and I -- maybe we can save an I i i 24 obj ection here -- I don 't ~ even remember the detaiIs of the 25 conversations other than that they caused me to start working  ! l ()  ! Heritage Reporting Corporation  : (202) 628-4888 r e

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() THOMAS - DIRECT 13652 1 on an analysis of surrebuttal testimony, information that would 2 be used for a surrebuttal plan. And a lot of my people in my 3 office spent a lot r.f time working on different aspects of 4 surrebuttal with respect to this during the period October into 5 early November. 6 Q Had anybody who talked to you at FEMA ever nad any 7 experience where the NRC staf f in a licensing hearing had filed 8 testimony or proposed testimony, the obj ect of which was to 9 rebut FEMA, their own expert, in such hearings? 10 MR. TURK: Obj ection to the characterization. 11 JUDGE SMITH: The expert? 12 MR. TURK: Yes. You 're calling them an expert. () 13 MR. OLESKEY: I think that 's what the memorandum of 14 understanding says, Your Honor, that 's why I used it. 15 MR. TURK: Read it again. 16 JUDGE SMITH: Well, whatever it says, we know about 17 the rebuttal presumption and the regulation. 18 MR. OLESKEY: Why they appeal and it 's all in this. 19 JUDGE SMITH: Without requiring Mr. Thomas to accept 20 the expert characterization, can you answer the question? 21 THE WITNESS: (Thomes) Could I have it again. 22 please, I 'm sorry. Could I have the question again. 23 BY MR. OLESKEY: 24 Q The question was, did you lt from anybody at FEMA 25 or did you know yourself whether the NRC staff had ever filed (') ts Heritage Reporting Corporation (202) 628-4888

13653 r~)s (, THOMAS - DIRECT i in any licensing proceeding testimony or proposed testimony, 2 the stated obj ect of which was to rebut a position already 3 advanced by FEMA in that same proceeding? 4 A (Thomas) This was discussed in a couple of meetings , 5 and nobody could remember such an incident. I don't know of 6 one of my own knowledge. 7 Do you want -- I mean, it was discussed in a meeting 8 with Craig Wingo. Margaret Lawless, Joe Flynn, Bill Cumming, i 9 and perhaps Dick Krimm, but I don't recall if Dick was there. 10 Q I don 't react reflexively to Mr. Turk 's incisive 11 demands that use name people, so unless I do it or he insists 12 on it, don 't feel you have to, okay. L (3 m/ 13 A (Thomas) Yes.  ; 14 Q Now, at the same time in October of '87 did you -- 15 were you told that Mr. Keller and Mr. Baldwin were doing some 16 work for the agency that bore on these proceedings?  : (Thomas) Yes. 17 A 18 Q Who told you that they were involved and what were i 19 you told about their involvement? 20 A (Thomas) I was told by both Attorney Flynn and by  ; 21 Craig Wingo that Joe Keller and Tom Baldwin woulti be working on 22 assisting us in the witness preparation phase of the sheltering 23 -- Seabrook beach sheltering testimony. P 24 Q And did you have conversations with either one of

                          ,_                                                                                                                                            25                                    them about what they were doing at any time in the fall of V

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() THOMAS - DIRECT 13654 1 9187? 2 A (Thomas) Well, I went through a couple of meetings 3 with them, the result of which was that I called Joe Keller and 4 essentially said to him, what in the world is going on here, 5 what is this all about. And he told me the purpose of the 6 meeting was to get me to, quote, "Fairly, you know, semiquote, 7 you know, as best I recall it, get you. Ed Thomas, to change a your position on the beach population." 9 Q The purpose of what meeting, Mr. Thomas? 10 A (Thomas) These were what I thought were witness 11 preparation meetings. 12 Q Were these in September, October or some other time? ( 13 A (Thomas) I have notes of meetings in October 28th 14 at.el October 29th, there were others as well. 15 Q Okay. Where were the meetings of the 28th and 29th 16 of October? 17 A (Thones) In Washington. 18 Q Who else was there besides you and Keller.and 19 Baldwin? 20 A (Thomas) People would come in at various times, but l 21 pretty much throughout you 'd have Craig Wingo and Margarr t 22 Lawless, sometimes Marshall Sanders, sometimes Vern Wingert, 23 but Craig and Margaret were there pretty much for the whole 24 thing. Joe Flynn was there pretty much for the whole thing. 25 And Bill Cumming might have been there for some of it, I don 't Heritage Reporting Corporation (202) 628-4888

THOMAS - DIRECT 13655 (]) f 1 remember.  ! s

                          '2                      Q         Did either Keller,or Baldwin'tell you what it-was
                                                                                                                                                 ~

3 they were doing for FEMA that would bear on the agency's  ; j

                                                                                                                                                                    't 4                testimony here in connection with the beach population?

5 A (Thomas) - Not uon the ,28th and 29th, no. 6 Q Were there any discussions about, on the 28th and  : 7 29th, about the time at which accidents might be expected to -j 8 occur at Seabrook or anything along those lines?  ; 9 Yes. I do have notes of the meeting and I A (Thomas) ,

                                                                                                                                               ~

10 can give you a brief run down. Essentially the thrust;of what . 11 Joe Keller was saying at that point was, in essence, that l 12 fast-breaking accidents, and I 'm sorry I just don 't know the. l () 13 technical mathematical terms, but he had plotted out the number 14 of fast-breaking accidents there were.in the WASH-1400 series l 15 of accidents, and he used a technical mathematic term for the 16 way that they appeared on the graph and said that it really was  ! 17 not so much a sequence of accidents, but really one accident ' i 18 when you looked at it in terms of mathematical theory; I don 't l 19 understand that stuff. l 4 20 And said, you could argue that the fast-breaking  ! l 21 accidents really were a worse-case accident, and therefore  ! l 22 could be excluded from emergency planning. j 23 And I said, no, no. Here we have the Christenbury l 24 memo that says, fast-breaking accident in fact is not the 25 worse-case accident, so let 's put thet One cride. ) Heritage Reporting Corporation ' (202) 628-4888 ] l I p,g,,,m v w s gwy , a ., <-e- , ,n-,,----,+g,.,,-o-,-p-

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(,w) THOMAS - DIRECT 13656 1 And then Joe went on to say that the fast-breakers 2 were comparatively mild, and he was talking about the 3 PWR-8 and 9 type of accident, the noble gas accidents that, he 4 didn 't describe as being benign but said that they generally 5 would not exceed the PAGs for the beach population. And said 6 that really our testimony was focused on the extreme edge of 7 the spectrum of accidents that we 're supposed to be preparing 8 for in terms of emergency preparedness planning. ' 9 Tom Baldwin had developed some numbers that attempted 10 to show that by using the evacuation time estimate that by the 11 time any plume could reach the beach _,opulation, many of them i 12 would have already left.

  ) 13      Q        Left the beach?

14 A ( Thoma s ', Left the beach. Left -- he thought left 15 the area, but he had misinterpreted the ETE and he and I spent 16 a lot of time going through what the ETE really said. But his 17 point had some validity and that is, we often say, well, gee, 18 what 's the clear time evacuation for an area, forgetting that 19 that 's when the last car is out, and perhaps the bulk of the 20 population has left hours before that and he attempted to 21 develop a rationale saying that many, many people would be 22 protected even though a lot of people would be struck in 23 traffic for a long time or even the duration of the accident. 24 Q Was this the kind of technical backup that you would 25 ask the agency to undertake in the summer of '87 as you I i Heritage Reporting Corporation (202) 628-4888 , 1

THOMAS - DIRECT 13657 /~)T (_ 1 previously testified? 2 A (Thomas) Well, no, not really. It was perhaps the 3 kind of rigorous -- I beg your pardon, the kind of rigorous 4 analysis that was needed before we filed our beach population 5 testimony, and I didn 't mind going through rigorous analysis. 6 But it -- the thrust of what they were doing seemed to be 7 designed with a particular obj ective in mind rather than to try 8 and do an obj ective analysis of whether we had to abandon the 9 beach population testimony. 10 In any case, I had understood that they were there to 11 support the testimony. I didn 't mind that they were pushing 12 against it to poke holes in it and see what kind of holes O (> 13 others could poke in it. But it did strike me as strange and 14 that was why I called Joe Keller later to say, what in the 15 world was going on here. et/19 16 (Continued on next page.) 17 18 19 20 21 22 23 24 25 g ,)

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THOMAS - DIRECT 13658 ([) T20 1 Q That 's when you had the conversation with you that 2 you detailed, that it was a meeting, at least in part, to get 3 you to change your mind? 4 A (Thomas) That was -- well, he said was the meeting 5 was to get you to change your mind, Ed. He didn't say about in 6 part. 7 Q Thank you. 8 What was your understanding after these meeting at 9 the end of October about where the agency was going to go with 10 the testimony on the beach population having had these meetings 11 with these outside consultants, and having the testimony still 12 sitting here ready to be offered to the Board? () 13 A (Thomas) Well, there were a couple of discussions 14 going on there at about the same time Mr. Dignan had filed his 15 motion in limine on the beach population testimony, and FEMA 16 was faced with a decision as to whether or not it would respond 17 to the motion. And that was a subj ect of very, very lively 18 debate within the agency. Perhaps I should say even 19 acrimonious debate within the agency. 20 And this discussion of what Joe Keller and Tom 21 Baldwin had come up with was folded into the debate about 22 whether we should file any type of response to the motion in 23 limine, or as one person in the agency had suggested, just 24 simply accept the motion in limine and hope to God it was _ 25 granted so that we would get out of the bind that we were in. > G Heritage Reporting Corporation (202) 628-4888

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(') THONMS - DIRECT 13659 1 Q What was that bind? 2 A (Thomas) Well, that was how it was described, words 3- -to that effect; the bind that we were in, and I had an 4 understanding of what that was. And the understanding was that 5 this individual was having conversations with the NRC 6 headquarters staff and there was anger. And certainly the 7 utility had already expressed some anger about our beach 8 population testimony. And, you know, prior to November 4th, 9 there had been conversations, not just the blood on the floor, 10 and you know, we knew we were in for a tough fight. 11 MR. TURK: Your Honor, I move to strike the question 12 and answer. The answer was again in the form of the rankest of < r%  ; (I 13 hearsay. Unnamed persons, relating conversations with unnamed 14- persons. Those generalized discussions of anger, God knows 15 where and by whom. I would move to strike it. 16 If Mr. Oleskey wants to try again, let him get some 17 specifics. 18 MR. OLESKEY: Well, if there 's going to be obj ection 19 because you don 't put names on conversations, you 'll have to to 20 back and put names on conversations. . 21 THE WITNESS: (Thomas) Sure. 22 BY MR. OLESKEY: 23 Q Go ahead. 24 A (Thomas) The person involved is Craig Wingo at 25 FEMA 's end, and I do not know who he was talking to at the NRC. Heritage Reporting Corporation (202) 628-4888

() THOMAS - DIRECT 13660 1 That is beyond my knowledge. 2 Q Now you indicated Mr. Wingo was part of these 3 conversations in Washington on the 28th and 29th of October; is 4 that right? 5 A (Thomas) Yes. 6 Q Did you have a conversation with him during that time 7 about FEMA backing off its existing beach population position? 8 A (Thomas) Yes. What he said in essence was, look. 9 we 've got to back of f this position. The only question is how 10 far. We talked about -- he made a suggestion that instead of 11 saying that the plans, the New Hampshire were inadequate with 12 respect to this, that it was a question, that we weren 't sure. () 13 And we went through a discussion about this, which I don 't know 14 if you want to get into. It relates to Pilgrim. 15 Q Only if it bears on the agency 's then deliberations 16 respecting Seabrook. 17 A (Thomas) Perhaps it does. Let me just finish it t 18 off. 19 What we had said with respect to Pilgrim and the 20 beach population was that we didn't have enough information. l 21 We didn 't know whether or not the problems with respect to the 22 transient oeach population at Pilgrim would be an impact on 23 public safety, whether it would impact on our finding of  ! 24 reasonable assurance of an adequate level of public safety, and _ 25 we asked for more information. 1 i Heritage Reporting Corporation I (202) 628-4888 ) i l

/ 13661 (') THOMAS - DIRECT 1 Mr. Wingo suggested we go forward with a similar 2 position saying we didn 't know. And I asked h:.7 well, what 3 information did we need. And he said, I don 't know, but we 've 4 got to do something. We 've got to figure out a way to back of f 5 this thing. 6 And I basically said that I disagreed with what 7 Keller was saying in terms of he was the wrong person to say 8 it. If the NRC wanted to come in and say we didn't have to 9 plan for fast-breaking accidents, that I didn 't know how you 10 could compare that with NUREG-0654, and all the things that we 11 do as a normal course of action in terms of very much focusing 12 on prompt protective action decisionmaking and all the other () 13 decisions that had been reached over the years, but certainly 14 we had to listen very closely because t. hey're the ones that 15 really set the parameters on emergency planning, but that 16 Keller wasn 't the one who did, and that the stuff that Baldwin 17 had come up with was just simply not persuasive, and I showed a 18 number of places where it was just simply wrong and in error, 19 and that I didn't see any basis to chcnge the testimony based 20 on that. 21 And we had a discussion with FEMA counsel, including 22 the actual General Counsel of the agency at that time, Spence 23 Perry, and the decision was made that we would continue to 24 support the testimony and file a motion in limine -- file a 25 response to the motion in limine. Heritage Reporting Corporation (202) 628-4888 >

() THOMAS - DIRECT 13662 1 JUDGE SMITH: Is this a good time to break, Mr. 2 Oleskey. 3 MR. OLESKEY: Yes, I actually think it is. 4 JUDGE SMITH: All right. 5 MR. OLESKEY: You haven 't asked, but I'll volunteer 6 that we seem to have actually made meaningful in roads and 7 accomplished the great bulk of my examination today. 8 FIDGE SMITH: I inferred that you had. 9 All right, we 'l l -- Mr. Turk. 10 MR. TURK: Your Honor, 1 just wanted to ask if the 11 Board is considering whether to release those documents I had 12 provided. () 13 JUDGE SMITH: Okay, let 's take those up. I think they 14 should be identified. 15 MR. TURK : I have a copy. 16 JUDGE SMITH: No, we 're getting our copy. 17 We 're done for the day. We 're taking up some

• 18 paperwork now, so as f ar as you 're concerned, you are free to 19 step down and relax, whatever.

20 THE WITNESS: (Thones) Thank you. 21 JUDGE SMITH: We 're just taking up motions now. < 22 MR. BARSHAK: Nine a.m. tomorrow. Your Honor? 23 JUDGE SMITH: Yes, please. 24 We 're on the record, yes. 25 Mr. Turk gave me three groups of papers. One was a Heritage Reporting Corporation (202) 628-4888

13663 (') 1 memorandum dated November 4, 1987, from Dr. Bores to Edwin Reis 2 who is deputy assistant to the General Counsel, who is in the 3 Hearing Division, and it is Mr. Bores 's report to Mr. Reis at

   .4 his request, reviewing Mr. Thomas 's testimony of October 7th.

5 And it makes many comments on the testinony. 6 It is being asserted here as attorney work product 7 privilege, and it is indeed that. We had no trouble saying 8 that that is attorney work product. The question is, is there 9 any statements made by Mr. Bores in it which would require us 10 for the needs of the hearing to set aside the work product il privilege and require its production. 12 In any event, we find no need. There is nothing in () 13 there that would indicate that there is anything being withheld 14 from either the Intervenors or the Applicant which would be of 15 any significant use to them. 16 We make the same ruling for a -- on a memorandum by , 17 Dr. Bores dated November 19th to Mr. Reis in which he analyzes 18 the November 4th testimony of Mr. Thomas. And it 's the same 19 thing. It is generally consistent with Dr. Eores 's testimony , 20 and we see no particular use. 21 And then Mr. Turk provided me and the Board an l 22 opportunity to review some of his handwritten notes dated July i 23 31st which purports to be a conver -- is, I 'm sure, a l l 24 conversation with Dr. Bores about the July 30th meeting; a i 25 conversation meeting with Mr. Flynn dated August 5th; a (~) As l Heritage Reporting Corporation , (202) 628-4888 l l

13664 (- O) 1 conversation with Dr. Bores again on November 9th; and a 2 conversation dated November 23 with Dr. Bores -- I mean a 3 conversation on November 23; a conversntion with Mr. Flynn on 4 November 25th; Mr. Conklin on December 12th. And going on. Mr. 5 Thomas f rom January 8th, and that 's about it. 6 And then we have some -- well, these have been -- we 7 have been asked to review these to determine whether, although 8 they are, many of them, factual accounts of interviews, 9 determine if they reflect the mental impressions of counsel. 10 And I 'm not quite sure, Mr. Turk, you have some of , 11 them outlined as being particularly, you believe, contain 12 mental impressions, but then you make the general argument that (~N s/ 13 your selection of what you write down there tends to reflect 14 mental impre9sions. 15 Is that your argu -- are you asking for protection 16 for all of the documents, all of them? 17 MR. TURK: No. I have two levels of request. Your 18 Honor. 19 Incidentally, let me not that there is one other set , 20 of notes that you didn't mention in your accounting, and that 21 was a conversation with Dr. Bores on January 8th. 22 JUDGE SMITH: I thought I mentioned that one. 23 MR. TURK: There are two levels of my argument, Your 24 Honor, l 25 The first is that the areas that I have indicated l O l Heritage Reporting Corporation i (202) 628-4888 I 1

    /'T                                                                  13665
    %)

1 with the blue line on the margin are clearly mental 2 impressions. 3 JUDGE SMITH: Yes, I agree. 4 MR. TURK: And should not be released. 5 JUDGE SMITH: Just the blue line? 6 MR. TURK: In terms of clear mental impression of the 7 attorney setting out discussion of potential litigation 8 strategy. 9 Now as to the rest of the_ documents, I 'd like to 10 retain them all. I recognize that if it 's a pure f actual 11 accounting, it won't qualify for attorney work product. I felt > 12 more strongly about the July 31st memo because -- or set of () 13 notes because that reflected answers to questions I had asked. 14 So I felt that the mere fact that it was a question and answer 15 type of discussion that it doesn't reflect the type of notes 16 that the rest of the notes consist of. 17 JUDGE SMITH: Well, I just don't see that they l t 18 contain anything that would have been of any value during Dr. 19 Borea 's testimony. 20 MR. TURK: I would indicate also. Your Honor, that 21 all of the discussions with Dr. Bores are consistent, in my ' I 22 view, entirely. l

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23 JUDGE SMITH: Yes, we couldn 't see anything useful. 24 There is one area in which we thought, at least I thought might  ; 25 be useful, and that is when Dr. Bores reports conversations  ! I) ss I I i Heritage Reporting Corporation i (202) 628-4888 l

13666 (]) 1 with Mr. Thomas about Mr. Thomas 's testimony. 2 However, given our ruling that we want to bring this 3 issue to a close and have in fact brought it to a close, it 4 would not change our ruling. It would not really change the 5 nature of the dichotomy between you or the difference of 6 opinion. It just is not useful, and we 're going to -- we 're 7 not going to require you to release any of it. 8 And then we have what might be called the attorney 9 work doodles -- 10 (Laughter) 11 JUDGE SMITH: -- which reflect mental impressions 12 that only a psychologist could fathom. But I 'm sure that we 'll r\ \J 13 protect those, too. 14 Claugher.) i 15 MR. TURK: My son -- 16 JUDGE SMITH: So we 're including the whole thing. 1 17 MR. TURK: Thank you. 18 Your Honor, I note my son is in kindergarten and he i 19 draws better than I do. l l 20 I want to, just for the sake of complete openness, I  : 21 want to disclose that I have one other document that I don 't 22 think is fairly embraced by the request of Mr. Oleskey. 23 Mr. Oleskey 's request to us of October 27th commenced 24 a time frame of September 1, 1986. And I do have a document I 25 that goes back to early 1986, which I have not produced Heritage Reporting Corpo ation (202) 628-4888

(- 0 13667 1 previously because it was outside of that scope. 2 The recent request by Mr. Oleskey on May 19th asked 3 to go back to January of 1986, and it would fall within that 4 except I believe that the intent of the second request was to 5 use the same time period as the prior request of October 27th. 6 And on that basis I have not produced it yet. 7 MR. OLESKEY: I don 't understand what Mr. Turk is 8 saying. If it 's something that he apparently thiriks should be 9 produced except for a privilege that is no privilege, why 10 doesn 't he produce it? 11 MR. TURK : No, that 's not the point. 12 I'm talking about scope of time. Mr. Oleskey 's () 13 request of last October asked for documents which originated l 14 started September 1986. And I do have a document which 15 predates that, and therefore was not produced earlier. 16 On May 19th Mr. Oleskey asked for documents going 17 back to January of 1986, or December of '85, because it was his 18 and my joint recollection that that 's what his original request 19 had asked for. And because I believe that the intent of this 20 request, the current request has been to use the same time 21 frame as the prior request of last October, I have not made 22 production. 23 MR. OLESKEY: Let me just say. Your Honor, that if 24 the question about the timing, given the amount of evidence 25 that we 've had and what I now know about the sequence of events O)

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i 13668 (]) 1 from 1981 forward, I would be requesting a document that Mr. 2 Turk otherwise thinks is responsive that predates whatever time 3 I arbitrarily picked in October, and I won 't press it beyond 4 that. 5 I would like to have to have it if it 's responsive. I 6 don't have any idea whether it would be useful at this point. 7 Obviously I haven 't done very well so f ar today. If I 'm going 8 to get one document. I 'll go home happy. If I 'm not, that 's 9 life. 10 JUDGE SMITH: Well, wait a minute. Are you demanding 11 these documents? 12 MR. OLESKEY: I 'm asking for the document he 's () 13 telling me he hasn't produced that he apparently feels is 14 responsive but for the fact in October I arbitrarily picked one 15 date, and that we 've gone well before that date, and if it 's 16 relevant to the issue, which it must be or Mr. Turk wouldn't be 17 mentioning it, I 'd like to have it. 18 JUDGE SMITH: All right. 19 MR. TURK: I 'm going to have to ask the Bcard to 20 review it for privilege. It was withheld -- 21 JUDGE SMITH: Okay. 22 MR. TURK: -- from a FOIA request on the grounds of 23 privilege, and I'd ask you to review it yourself. 24 JUDGE SMITH: All right. Do you want to give it to 25 me and take possession of the three papers you have given me? Heritage Reporting Corporation (202) 628-4888

l i i i O G 13669 i' 1 All right, and we 'll rule tomorrow. , 2 Adj ourned until 9:00 a.m. 3 (Whereupon, at 5: 41 o ' clock p. m. , the hearing was-

l 1

4 recessed, to resume at 9:00 a.m.. Tuesday, June 15, 1988.) i i 5  ; 6 l i i 7 l 8 , 9 i l l 4 10 l j 11 12 l. O 13 14 1 1

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1 16 i l 17 i I 18 l i l 19 l 1 l l l 20 1 i l 21  ! i 22 23 j 24  : i 25

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I i Heritage Reporting Corporation j (202) 628-4888 i

f UNITED STATES DISTRICT COURT NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

                                        )   Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF           )                50-444 OL NEW HAMPSHIRE, ET AL                 )   Offisite Emergency Planning
                                        )

(Seabrook Station, Units 1 and 2) )

                                        )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorneyc, merr/dus $ /Se herewith enter an appearance on behalf of Edward Thomas in the Bar agygjurch captioned matter. ., h f) ', / M ,4M Q s' Edward J. Barshak O '  ; Auaw49$4DWu - '\

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Christine M. Netski 33 Union Street Boston, Massachusetts 02108-2406 (617) 227-3030 DATED' UDe.l>lY0

   #370 0

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t i i CERTIFICATE f 2 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in-the matter of: , 5 Name: PUBLIC SERVICE COMPANY OF l 6 NEW HAMPSHIRE, et al. 7 Docket Number: 50-443-OL, 50-444-OL 8 Place: CONCORD, NEW HAMPSHIRE t 9 Date: June 14, 1988 i 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken electronically by me and,  ; {) 13 thereaf ter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the recording is a 15 true and accurate r e rd o he f r going p o eedings. 16 /S/J , 17 (Signature typed): KENT ANDREWS , 18 Official Reporter  ! 19 Heritage Reporting Corporation 20 t J 21 , 22  ; 23 l 24 25 l O s_/ , Herit age Reporting Corporation (202) 628-4888  :

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