ML20247G182
| ML20247G182 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/25/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8702 ASLBP, OL, NUDOCS 8905300316 | |
| Download: ML20247G182 (200) | |
Text
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UNITED STATES O NUCLEAR REGULATORY COMMISSION OR;G1A _
i ATOMIC SAFETY AND LICENSING BOARD e'
In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2') ) PLANNING EVIDENTIARY HEARING O .
Pages: 22784 through 23041 Place: Boston, Massachusetts .
- Date: May 25, ?.989 e
I =====u================== ================================
l T R . O I. b'
. I 1 ITAGE REPORTING CORPORATION l
'- O. eo <
1220 L Street, N.W., Suke 600 Wasidagton, D.C. 20005 (282) 626 4888 <
8905300316 690525 PDR ADOCK0500g3 T
,22784 UNITED STATES NUCLEAR REGULATORY COMMISSION x') ATOMIC SAFETY AND LICENSING BOARD 4
In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL-
. NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING Thursday, May, 25, 1989 Auditorium Thomas P. O'Neill, Jr.
. Federal Building 10 Causeway Street Boston, Massachusetts The above-entitled matter came on for hearing, pursuant to notice, st. 8:57 a.m.
BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and' Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER Atomic Safety and Licensing Board a
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 k Heritage Reporting Corporation
. (202) 628-4888 1
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APPEARANCES:
,f > s
-\ For the Acolicanti
. THOMAS G. DIGNAN, JR.,iESQ.
GEORGE H.-LEWALD, ESQ.
KATFT}T *; SELLECK, ESQ. )
JAY 'r. A '" t3D SMITH, ESQ.
JEFFRE*l 2. TROUT, ESQ.
GEOFFREY C. COOK,: ESQ.
Ropes & Gray
. One International' Place '
I
, Boston, Massachusetts 02110-2624 For the NRC. Staff:
SHERWIN E. TURK,. ESQ.
ELAINE-I. CHAN, ESQ.
EDWIN J. REIS, ESQ.
RICHARD BACHMANN, ESQ.
Office of General Counsel U.S. Nuclear Regulatory. Commission Washington, D.C. 20555 For the Federal Emeroency Manacement Acency:
L H." JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
Federal Emergency Management Agency 500 C Street, S.W '
Washington, D.C. 20472 For the Commonwealth of Massachusetts:
JAMES M..SHANNON, ATTY. GEN.
JOHN C. TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
PAMELA TALBOT( ASST. ATTY. GEN.
MATTHEW BROCK, ESQ.
LESLIE B. GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108
\ Heritage Reporting Corporation i (202) 628-4888 J
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- p. , 22786.' ,
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- APPEARANCES: (Continued)-
For the State of New Hamoshire; m
GEOFFREY M.'HUNTINGTON, ASST. ATTY. GEN.
State of New Hampshire 25 Capitol Street Concord, New Hampshire 03301
- For the' Seacoast Anti-Pollution Leaoue:
. ROBERT A. BACKUS, ESQ.
Backus, Meyer & Solomon 116 Lowell Street P.O. Box.516 Manchester, New Hampshire 03105 JANE ~ DOUGHTY, Director Seacoast Anti-Pollution League 5 Market Street Portsmouth, New Hampshire 03801
- For the Town of Amesburv:
BARBARA J. SAINT ANDRE, ESQ.
Kopelman and Paige,. P.C.
( 77 Franklin Street N Boston, Massachusetts WILLIAM LORD '
. Town. Hall ..
Amesbury, Massachusetts 10913 For the City of Haverhill and Town of Merrimac:
ASHOD N. AMIRIAN, ESQ.
P. O. Box 38 Bradford, Massachusetts 01835 For the City of Newburvoort:
BARBARA J. SAINT ANDRE, ESQ.
JANE O'MALLEY, ESQ.
Kopelman and Paige, P.C.
77 Franklin Street Boston, Massachusetts 02110
' Heritage Reporting Corporation (202) 628-4888
____________m_ . _ _ _ _ _._ ___.,__. _ _ _ _ . . _ _ _ . _ __ . _ _ . _ . _ . . . - - _ . . . _ . .
J 22787
._ APPEARANCES:
(Continued)
For the Town of Newburv:
.R. SCOTT HILL-WHILTON, ESQ.
Lagoulis, Clark, Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950
-i For the Town of Salisburv:
. CHARLES P. GRAHAM, ESQ.
Murphy' and Graham 33 Low Street Newburyport, Massachusetts 01950 l
! For the Town of West Newbury:
JUDITH H. MIZNER, ESQ.
Second Floor 79 State Street Newburyport, Massachusetts 01950 l
For the Atomic Safety and Licensino Board:
( ROBERT R. PIERCE, ESQUIRE Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 M
m Heritage Reporting Corporation (202) 628-4888
22788 LEDEX i
fw.
DIMCT CROSS REDIRECT RECROSS-EXAM L. -s.( -) '. WITNESSES:
Panel 23:
L John W. Baer Anthony M. Callendrello George R. Gram
-by Mr. Brock 22900 (Continued)
~
EXHIBITS: IDENT. REC. REJ. DESCRIPTION:
Mass AG 102 22901 22919 4-12-88 cover letter signed by Mr. Gram:
exercise objectives and EOP meeting notes 103 22901 22919 5-6-88 cover letter signed by Mr. Gram:
{ 4-20-88 meeting notes' 104 22967 22967 Applicants' voluntary responses to TOH's informal discovery
, requests 105 22976 22982 January 30,~1989, New Hampshire voluntary responses to TOH'S informal discovery requests re: 6-88 joint exercise s
Q U Heritage Reporting Corporation (202) 628-4888 N __ _ =_ _____ _--- _
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1 INSERTS:~ PAGE
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22790 l 1 E B-Q-Q E'R'E I E G 1 i(,
"2 JUDGE SMITH: Good morning.
3- -
Is there any. preliminary business? l MR. TRAFICONTE: Yes, there is,.Your Honor.
4 5 I was under the impressionLthat we would address, 6 first off^this. morning, on the record, the matter of
't 7. reinstating Contention EX-19, Basis D.
8 JUDGE SMITH: Yes.
9 We deferred overnight doing that, at the request 10 of Mr..Dignan.
11 MR.-TRAFICONTE: Yes.
12 JUDGE SMITH: Mr. Lewald?
13 MR. LEWALD:- Yes, Your Honor.-
14 I think it was also at my request so I would be J 15 able to consult with my partner, Mr. Dignan, as to the-
- 16. Applicants' disposition in the matter in that I wasn't here.
17 .the day before when it was taken up.
'18 The position of the Applic' ant is just briefly, it 19 sees no alternative that the Board has but to reinstate the 20 contention in light of the Appeal Board's romand.
21 While we reserve our appellate rights in the 22 matter in light of the circumstances. To the extent we have-23 an objection we don't raise it.
24' JUDGE SMITH: Right.
25 I think that's clearly the case.
. i O r-a -t- cnrat-n (202) 628-4888
22791 1 So Contention EX-19, Basis D is readmitted to the r8 i
) 2 litigation.
3 MR. TRAFICONTE: Your Honor, I would just like to 4 make one further statement in that regard, and it's for the 5 record and probably as of 4 o' clock today will perhaps not 6 amount to much, but I just want to state for the record that
- 7 my reading of the Appeal Board's Order of May 24, 8 specifically statements by the Appeal Board on page 8 lead 9 me to the conclusion that this Board, in fact, has 10 jurisdiction at this point over the issuance of a low-power 11 license.
12 And in our pleadings before you we had taken the 13 position, based on our understanding of the jurisdictional
("'}
\ )
14 division to date, that although the Board had jurisdiction
over all offsite matters, it did not have jurisdiction over 15 16 a low power license.
17 I am now of the view, and I want to repeat, that I 18 think this is a very confused jurisdictional context but my 19 reading of page 8 of the Appeal Board would indicate to me 20 that this Board right now has jurisdiction over the low-21 power license and that there is a contested issue running to 22 the low power license before you.
23 I, obviously, am not in the position to ask for 24 you to take any steps. I would ask you to take any steps 25 that you think you can to do something about that. But I Heritage Reporting Corporation (202) 628-4888
l 22792 1 think that is, as we sit here, the present jurisdictional 2 posture of this case.
3 JUDGE SMITH: So you're not seeking any relief.
4 MR. TRAFICONTE: Sure. I would like to ask you to 5 communicate the fact that you are of the view, in light of 6 the Appeal Board's Order, that you have jurisdiction over 7 the low power license. -
8 JUDGE SMITH: To the contrary, the Appeal Board 9 memorandum to us could, I recognize, be read the way that 10 you have interpreted it.
11 On the other hand, we have not yet received nor 12 read the Commission's Order which denied the motion for 13 reconsideration.
14 MR. TRAFICONTE: I have that with me, Your Honor, i 15 JUDGE SMITH: And I don't think that we can give 16 quite the walk-in legal service, jurisdictional service that 17 you get over at Dunkin Donuts, but I don't think we can 18 resolve it for you this morning.
19 MR. TRAFICONTE: It may get resolved by force of 20 circumstance.
21 JUDGE SMITH: It is in higher, and I hope, more 22 competent hands at the moment. Better informed hands at the ,
23 moment.
24 Anything further on a preliminary basis?
25 MR. LEWALD: Your Honor, there is a request to Heritage Reporting Corporation (202) 628-4888
22793 1 take up this morning -- there were two motions in limine
. ,m i
s j 2 that the Applicant had filed. And we had agreed to present v
3 these this morning for argument to the extent that argument 4 is required.
5 Mr. Trout and Mr. Cook are both here to represent 6 the Applicant in regard to those motions.
7 JUDGE SMITH: Let's take up Lonergan first.
8 There was some hope that would be resolved.
9 What's the status for the Lonergan testimony?
10 MR. COOK: Your Honor, the Applicants, as you 11 recall, had prepared a motion in limine objecting to the 12 entire testimony, originally. This was not filed on the 13 basis that it was double hearsay.
/~N 14 However, we did not want to have the two Sisters
] 15 take the trouble of appearing before this Board, and we did 16 not believe that the substance of their testimony was 17 sufficiently troubling to pursue that, when we recognized 18 that Ms. Greer and the Attorney General's office had sought 19 the subpoenas of all three parties whose statements are 20 described in Mr. Lonergan's testimony.
~
21 So at that point we revised the motion in limine l
22 so that the one that was actually filed contained only the 23 objection to Dr. Pelle's statements on the grounds of 24 relevance, and in particular, those statements went to the 25 subject of resources and not to the subject of training.
Heritage Reporting Corporation (202) 628-4888
22794 1 That is how the motion stands.
2 The Applicants are prepared and have offered 3 previously to the Attorney General to stipulate to the 4 substance and the statements made by the two Sisters.
5 At this point we understand, however, that 6 stipulation has been refused. And the subpoenas have been 7 served and that they will be enforced. -
l 8 MS. GREER: Just as a point of clarification.
9 JUDGE SMITH: Yes, I hope you clarify that.
10 MS. GREER: The last conversation that I had with 11 respect to any stipulation with anybody from the Applicants 12 was, in fact, in front of this Board two days ago. I 13 apprised the Board at that time that I had activated the 14 subpoenas. And the Board put it squarely back to the 15 Applicants that if the Applicants wanted to come forward 16 with a stipulation it was up to them, but so far I have seen 17 nothing and I still don't have a clear idea what -- if they 18 are willing to stipulate as to the truth and veracity of 19 everything that is said in the entire piece of testimony, I 20 have no problem with it going in.
21 But so far I haven't heard that as an offer. I've 22 heard -- ,
23 MR. COOK: We do offer that. We have offered 24 precisely that two days ago. And it was Applicants' 25 understanding that Ms. Greer would not accept that Heritage Reporting Corporation (202) 628-4888
22795 1 . stipulation.
( _,/ _ 2 JUDGE' SMITH: We understood that to be the only 3 thin ~g remaining to be decided, if it had to be decided, was 4 whether.the stipulation would be, if the Sisters came they 5 would testify exactly as they did and that they are credible 6 witnesse's.
7 MS. GREER: Right. ,
8 JUDGE SMITH: Or that those were absolute 9 stipulated facts. And I don't think it makes any 10 difference.
11 But it seems to me you are close enough to an 12 agreement not to trouble the Sisters to.come here.
13 MS. GREER: If, in fact, the Applicants will draft
("' 14 up a stipulation saying it's absolutely stipulated facts 15 that this is the case, there would be no problem. ,
16 But you see, my problem I posed to the Board and 17 the reason I activated'those subpoenas was in light of the 18 Board's ruling that such testimony is inherently unreliable.
19 And that was my problem.
20 And if, in fact, the Applicants will come forward 21 and stipulate to the absolute truth of the facts and it will 22 go in as a joint stipulation, I have no problem with that, 23 but I have yet to see it.
24 My impression from Mr. Dignan, at the end of our -
25 colloquy here the other day was, in fact, that he was l
Heritage Reporting Corporation (202) 628-4888
22796 1 unwilling to do that because, my recollection of the way 2 that this conversation --
3 JUDGE SMITH: Where would we be if the Applicants i 4 withdrew their objection to the testimony of Mr. Lonergan 5 with respect to the teachers.
6 MR. COOK: The Nuns. !
7 JUDGE SMITH: The Nuns. The Sisters., .
8 And indicated they had no cross-examination. They 9 had no objections to that aspect of the testimony being 10 received into evidence; you have the same thing, don't you.
11 MS. GREER: No , not in light of the Board's 12 , ruling, I think. The Board, on its own motion, raised the 13 issue of the inherent unreliability given the nature that 14 the testimonf was drafted. That is a ruling that this Board 15 has made with respect to two other identically drafted 16 pieces of testimony. And I think that poses a certain 17 evidentiary problem for our side. Don't you? ;
18 JUDGE SMITH: No. No, I don't.
19 I think that's a very mechanical analysis on your 20 part.
21 Do you need a lesson in evidence to understand why 22 the Board has trouble with double hearsay of the nature that 23 has been offered here? I mean, do you really?
24 Do you understand why the Board has difficulty, i 25 and sometimes it's impossible, to accept double hearsay and j l
Heritage Reporting Corporation (202) 628-4888 1 i
f 22797 1 issues before us?
2 MS. GREER: I certainly heard the Board's v./
3 reasoning on that.
4 JUDGE SMITH: That's not my question.
5 MS. GREER: I'm sciry, then I misunderstood the 6 question.
- 7 JUDGE SMITH: It's difficult to have a dialogue 8 frequently with you because you recast my question.
9 My question is: do you understand?
10 And your answer is: you heard.
11 Now, if you don't understand, that's fine. But i
12 answer my question, please. l 13 MS. GREER: I understand the Board's ruling on i
(~~h 14 that -- is that what you' re asking? !
- )
'# 15 JUDGE SMITH: All right.
16 Never mind. You understand the ruling. -
. I 17 I'm asking you: if you understand conceptually why I 18 double hearsay is a problem? If you do not understand I 19 wonder if you are capable of arguing the Attorney General's j 20 position.
21 MS. GREER: I believe I understand the Board's 22 problem with that. >
23 JUDGE SMITH: Submit a stipulation. If it's 24 reasonable -- the subpoenas are suspended. You submit a 25 stipulation, if it's reasonable the Board will look at it.
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22798 1 But we are not going to play games. You like to play word 2 games and you're not going to do it.
3 The subpoenas for the Sisters are suspended 4 pending a stipulation.
5 MR. COOK: And just for clarification, the 6 stipulation would be on the two Sisters' testimony only.
7 JUDGE SMITH: Yes. -
8 MR. COOK: Thank you.
9 JUDGE SMITH: I regard your arguments and response i 10 -- when the Board is addressing counsel either ask for a 11 leave, a recess to continue conferring or pay attention to 12 the Board.
13 I regard your response to my questions as evasive 14 and incomplete. And I regard you as in default on this 15 issue.
16 All right. What's next? '
17 MR. COOK: Your Honor, might I inquire about the 18 status of the third section of that testimony?
19 JUDGE SMITH: Are you going to argue that?
20 Who's going to argue that?
21 MS. GREER: I've argued that.
22 JUDGE SMITH: You have argued Pelle? ,
1 23 MS. GREER: I am prepared to argue on Pelle here 24 today.
25 JUDGE SMITH: All right. Go ahead.
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Heritage Reporting Corporation (202) 628-4888
22799 1 MS. GREER: My understanding as to the basic
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l _,f 2 grounds for the objection with respect.to Dr. Pelle's 3 testimony is that the Applicants are objecting to it on the 4 grounds of relevance.
5 JUDGE SMITH: To the exercise contention.
6 MS. GREER: As to the exercise contention.
7 If I may essentially'just briefly put into context 8 the reason that Dr. Pelle's testimony.is in there.
9 If you will read the testimony submitted by the 10 two Sisters,.the two Sisters essentially say -- and I will 11 make particular reference to page 4 in the last paragraph, 12 and I. will read frc;n that paragraph of their testimony, if I 13 might.
("% 14 "As to the question of the biological effects of
<--) 15 radiation and the FEMA finding that additional training is 1
16- needed in this area, Sister Paula indicated that the nursing 17 staff has a basic understanding of the biological effects of 18 radiation, but is relying on the advise of Dr. K'enneth Pelle 19 who is a radiation safety officer for specifics regarding 20 actual safety monitoring levels."
21 JUDGE SMITH: Wait a minute.
22 JUDGE McCOLLOM: What page are you on, Ms. Greer?
23 MS. GREER: Page 4 of Lonergan testimony, the last 24 paragraph.
25 (The Board reviewing document.)
( Heritage Reporting Corporation (202) 628-4888
22800 1 JUDGE SMITH: Proceed. J 2 MS. GREER: Okay.
3 Continuing on in the same paragraph, I'm 4 continuing to quote: "She said the nursing staff would rely 5 upon Dr. Pelle to supervise the multi-disciplinary team 6 treating a contaminated injured person.
7 She,added that any and al' questions concerning ,
8 the biological effects of radiation would be referred to him 9 or one of his technicians. Sister Paula stressed that the 10 nursing and medical staffs' primary responsibility is for 11 the immediate care of the incoming injured."
12 Based upon that statement from Sister Paula the 13 concern was raised: well if, in fact, the nursing staff is 14 relying upon the advise of Dr. Pelle and is relying upon him 15 to essentially supervise them in the handling of 16 contaminated injured individuals, how many individuals and 17 teams can be monitored and supervised by Dr. Pelle at one 18 time.
19 At that point Kathryn Barnicle then contacted Dr.
t 20 Pelle and had a conversation with him, which then became the 21 basis of Dr. Pelle's testimony. And essentially, the basis 22 of Dr. Pelle's testimony is whether, in fact, he is going to 23 be able to, given the level of training that the Sisters had 24 received, the nursing staff had received, and given the fact 25 that they are relying upon him to field questions and to (202) 628-4888 4
22801 l
1 supervise them with respect to the handling of contamination
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/ 2 and monitoring issues, how many people can he supervise.
3 That seems to be key as to whether in fact further 4 training will be able to, in fact, correct the issues that 5 were raised in the exercise.
6 The Board may recall during the course of Mr.
7 Donovan's testimony, he testified to an ARCA that was found 8 with respect to the hospital personnel at St. Joseph's 9 Hospital. The ARCA that was found by FEMA during the 10 exercise was connected to the issue and level of 11 understanding that the hospital personnel had as to the 12 biological effects of radiation.
13 When the FEMA evaluator, apparently, asked the
,/} 14 nursing and medical staff there at the hospital certain
' ~ ' 'l L
15 questions about the biological effects of radiation, they 16 were unable to answer those:
17 And one of the factors that we raise in our 18 contention of MAG EX-14 is whether, in fact, further 19 training will be able to, in fact, correct this given the 20 fact that St. Joseph's Hospital is not one that typically 21 does a lot of handling of radiologically injured persons.
22 And if, in fact, they are relying solely on Dr.
23 Pelle to do this, to supervise them, that was the issue that 24 led us to get the statement from Dr. Pelle and submit it as 25 part of his testimony.
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22802 1 You will note in Dr. Pelle's testimony he, in 2 fact, states that: "The biological effects of radiation was 3 not a major" --
4 MR. COOK: Objection, Your Honor, to the reading 5 of this section, if it could be used as tne basis of 6 proposed findings.
7 JUDGE SMITH: It can't. It is,not. -
i 8 It's to put her argument into context.
9 MS. GREER: Right.
10 Dr. Pelle stated in his statement: "That the 11 biological effects of radiation was not a major part of the 12 training program that the hospital personnel went through."
13 And if, in tact, that aspect of the training 14 program cannot be remedy. And if, in fact, the nursing 15 staff cannot be brought up to speed, and the other medical 16 personnel cannot be' brought up to speed by the training 17 program; then, in fact, they are left in the posture of 18 relying upon Dr. Pelle for expertise.
19 And if, in fact, he can only supervise two to 20 three teams handling injured people at one time, I certainly 21 think that's relevant to the issue as to whether the plan 22 can be -- the SPMC can be implemented. .
23 And that was, in fact, the purpose of the exercise 24 as a demonstration of the implementability of the SPMC 25 Heritage Reporting Corporation (202) 628-4888
k 22803 L
l 1 MS. GREER: (Continued) Therefore, we would 1
( g
( ,/ 2 submit to the Board that all of Dr. Felle's testimony is j
- 3 relevant. In their motion, the Applicants seek to strike l
L 4 all of the testimonyc not merely a single sentence here or 5 there, while at the same time admitting that at least.part.
, )
6 of his testimony directly addresses the training issue.
7 (The Board confers.)
8 JUDGE SMITH: The Board comes away with a very 9 simple thought that was expressed by your very, very lengthy 10 argument. And just the shear volume of your words has 11 obscured what I thought was the point that you were making. -
12 Could you summarize very shortly just what you ;
13 think is the issue?
14 As I understand it, you are offering this 15 testimony as rebuttal to Mr. Donovan, to the effect that 16 additional training is needed. And you are saying, in 17 effect, that that additional training is not available.
18 MS. SREER: Would not be effective in correcting 19 the inadequacy found by FEMA.
20 JUDGE SMITH: That's what you are saying?
21 MS. GREER: That's what we are saying.
22 And, furthermore, I would just like to point out 23 to the Board --
- 24 JUDGE SMITH: Yes, but you use so many words for 25 such a simple idea that I'm wondering if it's not a larger, Heritage Reporting Corporation (202) 628-4888
22804 1 more complicated idea. If it is, I can't find it. ,
2 MS. GREER: Okay. No. The other thing I would h 3 like to point out to the Board is that if the Board finda 4 this to be irrelevant to MAG EX-14, then I would propose at 5 this time and will, in fact, if the Board requests in 6 writing, submit the same testimony as rebuttal to testimony 7 offered by Mr. Sinclair last week. Because in his testimony -
8 last week, I guess, in fact, at this point it would be 9 surrebuttal or something of that nature.
10 Mr. Sinclair, in his testimony last week, stated 11 an issue going directly to the plan which I think is also !
12 contained in this testimony here which is, he stated that it 13 was his understanding from conversations with Dr. Pelle that 14 the hospital was in a position to treat the radiologically 15 injured. And I think that Dr. Pelle's testimony also does 16 speak in direct opposition to that point, to that statement 17 oi Mr. Sinclair.
18 I do have the transcript cites here. And if in 19 fact the Board sees things in the way that has been argued 20 by the Applicants and does not see this testimony as 21 relevant to EX-14, then I would submit to the Board that it 22 certainly is directly relevant to plan contentions that we ,
23 have in, and I would seek to offer this same piece of 24 testimony as rebuttal to statements made by Mr. Sinclair.
25 That's the only thing. I didn't want the Board to Heritage Reporting Corporation j (202) 628-4888 j l
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(
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22805 1 make its ruling and then be in the posture of comIing bac'
( ) 2 with more stuff.
w/
3 .
(The Board confers.)
4 JUDGE SMITH: Do you wish to be heard? !
l 5 MR. COOK: Yes.
6 JUDGE SMITH: She has argued, as I understand it, a 7 on a basis somewhat different than your argument, and I 8 don't have your position on her argument.
9 MR. COOK: Yes, Your Honor, I would like to be 10 heard. ,
11 I have two points with regard to her argument, the 12 Attorney General's argument that the statement on page 4, 13 concerning Dr. Pelle's role as a supervisor, also requires
(~'S 14 the incorporation of his testimony on the hospital's
, l
\' 15 resources and its capacity.
16 The Applicants, as we have stated just a few 17 minutes ago, are prepared to stipulate to the content and 18 will draw up a stipulation of the two Sist'ers' testimony 19 that includes that statement about Dr. Pelle's role on page 20 4. However, that is not a statement that involves the issue 21 of training. There is a difference between reliance for 22 supervisory capacity and the issue of training provided by 23 New Hampshire Yankee, or other hospitals.
24 And the FEMA ARCA that is at issue in this case 25 specifically involved training on the biological effects of r,
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( ,) Heritage Reporting Corporation (202) 628-4888
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l 22806 1 radiation.
2 The issue of resources is one that is so much 3 greater in scope that involves the capacity of the hospital 4 in terms of how many people it can treat. It involves the 5 nature of the equipment in the hospital, whether it is _
6 appropriate for the hospital to attempt to treat possibly 7 large numbers o' ,seople when the section that Ms. Greer has -
8 quoted descri'as Dr. Pelle as having the ability to work 9 with certain limited numbers of people at a time.
10 So that is point one, that there is a division 11 between supervision and training, and that that is a logical 12 distinction. It is an important distinction.
13 The second point is a very closely related one, 14 and that is that this distinction has been recognized by 15 federal agencies and, in particular, in NUREG-0654, Sup. 1.,
16 I believe it is Section 2-M. But there is a section on 17 radiation control of hospitals, hospitals' ability to 18 provide care for those who are coinina from a radiological 19 emergency.
20 And in that section, and in previous FEMA 21 documents, which I cannot cite the Board, but I'm thinking 22 in particular of a February 1988 FEMA guidance memo, there ,
23 is a discussion of capacity at MS-1 hospitals. And in those 24 memos, as well as in 0654, capacity is described in terms of 25 having one radiologically skilled physician at eech Heritage Reporting Corporation (202) 628-4888
- 22807 1 hospital, and there are requirements specifically set out i r
) 2 for capacity and for physical resources.
3 These are discussed in distinction and different 4 areas than training. And, indeed, my recollection is that 5 these documents and guidance memos do not discuss training 6 in the same vein, in the same context, and Applicants ;
7 believe that there are two distinct issues, and that these 8 have been recognized by the relevant federal agencies, t
9 In response, as a third point, to the Attorney 10 General's assertion that this is relevant testimony in 11 rebuttal to what Mr. Sinclair has stated, Applicants would 12 like to point out two things.
13 The first is that those statements were elicited
(N, 14 by the Attorney General on cross. They were not brought out 15 on any redirect, and therefore the Attorney General, as 16 Applicants understand it, should not have the opportunity to 17 pursue this issue further when the Attorney General had an 18 opportunity to ask those questions and had the last 19 opportunity to ask those questions himself.
20 And the second point is that this issue, as the 21 Applicants note in their footnote in this motion, goes to 22 resources. It goes to JI-46, and it is something that 23 should have been discussed earlier if the Attorney General, 24 as she has stated, wants to discuss issues going to the- ;
25 plan.
l <
N i, m Heritage Reporting Corporation (202) 628-4888 1
l g a '
'22808 1
r 1 ,
And if it had been brought up earlier, then the
~
2 Applicants would have had the opportunity to discuss it in 3 response in their testimony. And that is why it should not ,
i 4 be allowed for that reason, in addition.
5 JUDGE SMITH: All right. Would you address --
6 MS. GREER: Two issues raised by the Applicants, 7 yes. ,
8 First, I would point out that the FEMA finding in 9 the exercise report, the issue and the inadequacy that was l 10 found, if you are referring to FEMA report page 231, the 11 FEMA finding on the inadequacy was on the issue of 12 contamination control, and I'm reading directly from the 13 FEMA finding at this point on page 231.
14 " Contamination control: Understanding the effects 15 of radiation and results of radiological monitoring. ARCA 16 (REP 1, Supplement 1, L-1) . "
17 The section referred to on the inadequacy, L-1 in 18 FEMA Sup. 1, is found on page 22 and reads as follows: "The 19 offsite response organization shall arrange for local and 20 backup hospital and medical services having the capability 21 for evaluation of radiation exposure and uptake, including "
22 assuran e that persons providing these services are 23 adequately prepared to handle contaminated individuals."
24 That evaluation criteria is distinct from the 25 evaluation criteria found in Evaluation Criteria 0, which is Heritage Reporting Corporation (202) 628-4888
)
22809 1 the radiological emergency response training.
(~
(v/ 2 I agree with the Applicants that training and 3 hospitals are two separate areas,.but in fact the issue that 4 was found by FEMA in the exercise went to Evaluation 5 Criteria 1, not Evaluation Criteria O.
6 JUDGE SMITH: Don't use those shorthands. Give me
- 7 the substance.
8 Whatr s Evaluation Criteria L-1?
9 MS. GREER: Evaluation Criteria L-1 is what I just 10 read to you. "The offsite response organization shall 11 arrange for local and backup hospital and medical services 12 capable having the capability for evaluation of radiation 13 exposure and uptake."
()
\
'~'
/
14 And this is distinct from Evaluation Criteria O lb which is in fact the training, the radiological emergency 16 response training.
17 Okay, that's one.
18 JUDGE SMITH: You agree?
19 MS. GREER: Yes. But the issue that was found 20 here was with respect to L, not O.
21 JUDGE SMITH: Resources.
22 MS. GREER: Correct.
23 JUDGE SMITH: Not tra'ining, resources.
l 24 MS. GREER: Yes. )i 25 JUDGE SMITH: Well, do you agree or not agree with -
~
f'N l t \
\s,/ Heritage Reporting Corporation (202) 628-4888 l
l
22810 1 Mr. Cook about this being under the scope of Contention 2 EX-14? ,
3 MS. GREER: I believe that this is, for the reason 4 I previously submitted to you, under EX-14. I also believe -
5 that it has relevance to plan issues which is, I believe, 6 Contention JI-46.
1 7 JUDGE SMITH: Yes, I know. ,
8 Would you explain again, just summarize very 9 briefly if y'ou can, why is this related to training?
10 MS. GREER: Because in EX-14 --
11 JUDGE SMITH: Point to the language that you rely 12 upon from Dr. Pelle.
13 MS. GREER: Oka'.
f In Dr. Pelle's testimony, you 14 wish me to address?
' 15 JUDGE SMITH: Yes. Yes.
16 MS. GREER: Okay, Dr. Pelle says, I believe it's 17 the last sentence there which I believe I quoted earlier.
18 JUDGE SMITH: Oh, yes.
19 MS. GREER: That biological training was not in 20 fact a large part of the training program, and that --
21 JUDGE SMITH: That's it.
22 MS. GREER: And that he would only be --
23 JUDGE SMITH: Well, wait a minute.
24 What else does he say that supports your 25 contention?
(202) 628-4888
_ _ - _ _ - _ _ - _ _ _ _ . - - _ \
l 1
L 22811- )
1 MS. GREER: Okay. And then the nurses say over on
\
( ,)
/
2 page 4 that they are relying on Dr. Pelle's advice as to the 3 biological effects of radiation. And we think that is, in 4 part, because of the limited training that they have had in 5 the biological effects. ,
6 JUDGE SMITH: Now where does it say it? I want 7 words here.
8 MS. GREER: Okay. Page 14, second --
9 JUDGE SMITH: No, no, we're at page 4, right?
10 MS. GREER: I'm sorry. Page 4, third paragraph, 11 first sentence. "As to the question of the biological 12 effects of radiation, the FEMA finding that additional 13 training is needed, Sister Paul indicated that the nursing 14 staff has a basic understanding, but is relying on the
('~')N
\
'- 15 advice on the Dr. Pelle, who is a radiation safety officer 16 for specifics regarding actual safety monitoring levels."
17 Not merely --
18 JUDGE SMITH: Wait, wait. ,
19 And Dr. Pelle is saying that he's not trained?
20 MS. GREER: He's saying --
21 JUDGE SMITH: He's not capable of giving that 22 advice?
23 MS. GREER: He is capable, but he is the only one, 24 and the training program does not have that advice except as 25 a --
A
,) Heritage Reporting Corporation (202) 628-4888 l
O 22812 1 JUDGE SMITH: Oh, I see. And his advice --
2 ,
MS. GREER: And his advice is --
3 JUDGE SMITH: He's competent, but --
4 -
MS. GREER: Only to two people at one time.
'5 JUDGE SMITH: All right. Two people to treat at 6 one time.
7 MS. GREER: That's two people to treat and .
8 supervise. He's there --
9 JUDGE SMITH: All right. She says training is 10 needed and she is relying on the advice of Dr. Pelle at the
, 11 time of an emergency, and she's not going to get any more 12 training. She's not going to get any training from Dr.
13 Pelle.
14 MR. TROUT: Your Honor, look at the statement at 15 the top of the next page. That goes right to the issues you 16 just raised.
17 MS. GREER: They are scheduled to get annual 18 training, but the issue is, in fact, that we raise in 19 EX-14 is whether they will - an annual training. And if 20 you look at the training program that has been submitted, 21 the module that has been submitted in rebuttal to this ,
22 testimony, there is less than 10 minutes of instruction on ,
23 the biological effects of radiation.
24 JUDGE SMITH: Where does it say that?
l 25 MS. GREER: What?
Heritage Reporting Corporation (202) 628-4888
' ;I[ i 22813 3
1 JUDGE SMITH: Where'does it say that? -
i
/~ ,
( 2 MS. GREER: That is in the, module that was 3 submitted, the training module that was submitted and 4 attached to the testimony in rebuttal to this piece of 5 testimony.
6 We submitted this piece of testimony. The e 7 Applicants submitted a piece of testimony that incorporated 8 the training module for MS-1 personnel. And if you look at 9 that piece of testimony, in the training module they have a 10 time line.
11 And if in fact the nurses are only getting 10 12 minutes of training once a year, we raise in EX-14 that it's 13 problematic since they don't normally do this kind of work.
14
} They are getting one shot, a 10-minute shot once a year, 15 whether in fact training of that nature will be able to in 16 fact correct the problem that was found by FEMA. And that 17 leaves them relying on the advice then of Dr. Pelle.
18 JUDGE SMITH: Okay.
19-20 21 22 23 24 25
() Heritage neporting corporation (202) 628-4888
22814 1 MR. COOK: Your Honor, if the Board would permit 2 it, I would just like to point out that the trouble is that '
3 Dr. Pelle's testimony does not address the training.
4 JUDGE SMITH: Yes,- it does . He says it was not a 5 major part. I mean, the biological effects were not a major 6 part. He does say that, the last sentence.
7 MR. COOK: But with the exception of that very -
8 last sentence, Your Honor, the testimony under Dr. Pelle's 9 name, described as that statement, does not question the 10 quality or the adequacy of the training which, in the nun's 11- scatement as the very last statement on the top of page 5 12 says, she expects further training will address the issue.
13 Now, instead of discussing what that training )
l 14 would be, how it would take place or any of the details, the l l
15 section entitled " Statement of Dr. Pelle" instead describes i 1
16 the resources of the hospital and capacity.
17 JUDGE SMITH: Yes, I know. I read that.
18 But what do you say about the rest of Dr. Pelle's .
19 testimony? Why should we receive it?
20 MS. GREER: Because EX-14 raises the issue as to
~
21 whether in fact the inadequacy will be able to be corrected 22 by further training. And if in fact it cannot be corrected ,
23 by further training, then we would submit that there is a 24 deficiency in the implementability of the SPMC, because they 25 are then relying on Dr. Felle, who can only handle two Heritage Reporting Corporation (202) 628-4888
22815 1 patients at once. That's all the nurses --
' '\ .- .
,- ) 2 JUDGE SMITH: Did the exercise reveal that fact?
%/
3 MS. GREER: The exercise did not, because in fact 4 there was only one body brought in.
5 JUDGE SMITH, Well, then it doesn't come in 6 Exercise 14 then, does 12?
. 7 MS. GREER: We believe that the exercise 8 demonstrated a lack of basic knowledge, and we would --
9 JUDGE SMITH: All right. Where does he say that?
10 MS. GREER: All right, that is found in the FEMA 11 report.
12 JUDGE SMITH: No , where does Dr. Pelle say it?
13 MS. GREER: Dr. Pelle does not say that the
('N 14 exercise demonstrated --
i 15 JUDGE SMITH: Then why do we need his testimony?
16 MS. GREER: Well, I think I have just gone through 17 that, and I'll take the Board through it again.
18 JUDGE SMITH: Well, this is the problem we have.
l 19 You don't understand my questions to you and I don't 20 understand your arguments. So in that event of i
21 noncommunication, you ar.e likely to lose.
22 MS. GREER: 3 understand that.
23 JUDGE SMITH: The only thing I see here is Dr.
24 Pelle says, with respect to training, it was not a major 25 part of the training program. And, of course. I note that 0
(,)
1 Heritage Reporting Corporation (202) 628-4888 1
L___________________.
22816 1- he does not say that the biological effects of radiation 2 were inadequately treated in the training program. He 3 simply says it was not a major part of the training program.
4 And I just wonder what finding we could make on that. But 5 that's another matter. .
6 (The Board confers. )
7 MS. CHAN: Your Honor, before the Board comes to a ,
8 decision, the Staff had a couple of comments to make. Mr.
9 Bachmann will address the issue. j 10 MR. BACHMANN: Well, I'm not sure if it's a couple 11 of comments, but at least one.
12 In the Board's order admitting this basis and this 13 contention, the Board indicated that if hospital personnel 14 would lack the skill necessary to treat these contaminated 15 injured individuals; that was a major plan element.
16 But the Board went on to say, "
...if 17 substantiated, requires significant changes in the training 18 program." And that was the basis on which the Board 19 admitted this contention and this one basis.
20 Ano I see nothing in this testimony that goes to 21 the necessity for significant changes in the training -
22 program as an exercise contention.
23 That was page 42 of the Board's order.
24 (The Board confers.)
25 JUDGE SMITH: The only part of Dr. Pelle's offered (202) 628-4888 i
22817 1 testimony which relates to Exercise Contention 14, Basis C, i,v) 2 which is purely an exercise training contention, is the last 3 sentence, and it adds nothing to the Sisters' testimony and 4 it-doesn't tell us anything.
5 So his testimony with respect to Exercise ,
6 Contention 14 is not relevant.
7 Now with respect to your Resource Contention 46, 8 you are late.
9 You didn't address the point made that you can't 10 offer the resource testimony in surrebuttal to Mr. Donovan 11 because you raised it yourself in cross-examination. You 12 didn't address that. ,
13 MS. CHAN: Mr. Sinclair, I believe, Your Honor.
jh 14 JUDGE SMITH: Mr. Sinclair, yes. Excuse me.
( /
15 MS. GREER: We would not be offering it in 16 surrebuttal to Mr. Donovan.
17 JUDGE SMITH: Sinclair.
18 MS. GREER: But to Sinclair. .
19 JUDGE SMITH: Yes.
20 MS. GREER: And that statement wasn't made until 21 last week. I have the relevant portions of the transcript 22 here which I would be happy to distribute to the Board.
23 JUDGE SMITH: Well, I'm asking you if you care to i
24 address Mr. Cook's argument that you yourself raised it at 25 the very end of Sinclair's testimony on cross-examination. ]
/ \
h ,) Heritage Reporting Corporation (202) 628-4888
4 l 22818 1 MS. GREER:' Well, in that he says that his ,
,2 understanding is that Dr. Pelle can in fact handle the -- he 3 understood from conversations that he had with Dr. Pelle 4 'that Dr. Pelle can handle the radiologically injured.
5 JUDGE SMITH: Can? . -
6 MS. GREER: Can, C-A-N.
7 And Dr. Pelle indicates, in his testimony -- *
- 8. JUDGE SMITH: Well, I know, but this was elicited 9 by you. It was not offered by Applicants as a part of their 10 burden of proof.
11 MS. GREER: I know. But to the extent that a 12 statement is made, and there is contrary evidence, directly 13 contrary evidence, I believe that we are in fact entitled to 14 at least offer --
15 JUDGE SMITH: But you produced that contrary 16 evidence.
17 . MF. GREER: But we didn't produce it. It was 18 their own witness who said this.
19 JUDGE SMITH: At your instance. )
)
20 MS. GREER: On cross-examination, that is correct. l 21 JUDGE SMITH: And now you want to rebut 22 information you pulled out on cross-examination. .
23 MS. GREER: Well, in their testimony, they say )
l 24 that the hospitals are in fact -- MS-1 hospital is in fact l 25 capable of treating the contaminated injured.
I Heritage Reporting Corporation (202) 628-4888 l
l l
22819 l
1 ,
JUDGE SMITH: By accreditation. By definition.
1 ,/~x l ( ) 2 MS. GREER: And also under the terms of the 3 contract that they have with them. And then on cross-4 examination I said does that contaminated -- essentially the 5 ,
issue I raised in cross-examination was does contaminated 6 injured also cover the radiologically injt red.
. 7 JUDGE SMITH: On their direct testimony, they said 8 that.
9 MS. GREER: On their direct testimony, they say 10 contaminated injured period.
11 JUDGE SMITH: And all along you have felt that Dr.
12 Pelle's testimony would rebut that statement?
13 MS. GREER: When you say "all along", in fact we e-~s 14 did not obtain Dr. Pelle's statement until after their i \
\# 15 direct testimony was submitted. They filed their direct 16 testimony on resources in February. I believe it was 17 February 28th. We in fact did not get the statement from 18 Dr. Pelle until after that day.
19 20 21 22 23 24 ,
25 -
b)
( Heritage Reporting Corporation (202) 628-4888
.O 22820 1 MS. CHAN: Your Honor, I would like to clarify.
2 You say you did not get the statement --
}
) 3 JUDGE SMITH: Just a moment, please.
4 MS. CHAN: Oh, 5 (The Board confers.)
i 6 JUDGE SMITH: Ms. Chan? 1 l
7 MS. CHAN: Your Honor, the Staff was just going to ,
l 8 request some clarification of the timing. I wasn't clear 9 when Ms. Barnicle got the information. It was my 10 understanding that she gathered it sometime in the past and i
11 then she left and then Mr. Lonergan took over. And I 12 thought all this predated the information that Mr. Sinclair 13 had.
14 So if it's necessary for the Board for Ms. Greer 15 to clarify that, then I would like her to. If not, then she 16 needn't.
17 MS. GREER: If I may.
18 JUDGE SMITH: Go ahead.
19 MS. GREER: Would the Board like clarification on 20 when Ms. Barnicle got the statement from Dr. Pelle?
~
21 JUDGE SMITH: That is relevant, yes. I don't know 22 if it is controlling.
23 MS. GREER: Ms. Barnicle got the statement from 24 Dr. Pelle, I believe, it was in late, March. I believe it 25 was in the week of the 13th. And I would have to actually Heritage Reporting Corporation (202) 628-4888
22821 I
'l " double check the date on the notes of her interview with the I
t / 2 good Sisters.
V 3 But I believe-that she interviewed the Sisters on, 4 I believe it was the 13th of March. And about a week later 5 she then had the conversation with Dr. Pelle.
6 We have, in fact, submitted to the Applicants the
- 7 notes of Kathryn Barnicle. I do not have those notes right 8 here with me right now, but I believe'it was -- I certainly 9 know it was after the 28th which is when the Applicants' 10 direct testimony on the plan provisions were submitted.
11 I' don't know how that is particularly controlling 12 here, but that is the information.
13 MR. TROUT: Excuse me, Ms. Greer, did you send us f' 14 the notes of Kathryn Barnicle's conversations in March with
's 15 Dr. Pelle?
16 MS. GREER: 'No.
17 MR. TROUT: There are not notes?
18 ,
MS. GREER: No.
19 JUDGE SMITH: As I understand it now this is the 20 sequence of events: you have lost on training. But we had 21 Applicants' testimony of yesterday's panel to the effect 22 that MS-1 hospitals including this hospital are by 23 accreditation terms capable of treating the contaminated 24 injured, as we understand it to be in this case. That was 25 the testimony.
(202) 628-4888
O 22822 1 It was the c.ross-examination of Mr. Sinclair as to 2 his conversation with Dr. Pelle, which you now seek to 3 rebut. I 4 And your position is: well, that's the statement 5 they elicited; t,herefore, they can't rebut it. But why can q 6 they not offer to rebut the prefiled direct testimony? And
]
7 you say, well, it is very late to be doing that. . I I
8 Is that right? Is that where we are roughly? j l"
9 MR. COOK: Y'a s , Your Honor.
10 Except that if I might expand upon that very ,
11 briefly. The testimony of Dr. Pelle was filed on April 12 10th. The testimony at that time was not described as being 13 relevant to the claims and to the contentions, of course, 14 that it is being claimed it is now. I 15 And Applicants' position is that the AG should 16 have sought leave of the Board at that time since in the 17 trial brief it was not so described to apply it to that 18 position to give the Applicants fair opportunity to respond.
19 (The Board confers. )
20 21 22 23 24 .
25 Heritage Reporting Corporation (202) 628-4888 i
22823 1 JUDGE SMITH: The Board will permit as
(]j 2 surrebuttal'the testimony of Dr. Pelle on the issue of 3 contamination resources with the following reasoning: that 4 the direct testimony of the panel did assert that the 5 hospital in question, St. Joseph's,.was a MS-1. If I'm 6 wrong on these facts I want to be corrected. Was an MS-1
- 7 hospital, ergo, won by accreditation capable of handling 8 contaminated injured people, j 9 Ms. Greer, exercising her right under NRC p'ractice i 10 to establish a case on cross-examination, cross-examined Mr.
11 Sinclair on this point and armed with the statement of Dr. j l
12 Pelle to the contrary elicited from Mr. Sinclair testimony 1
13 suggesting that Dr. Pelle had corroborated the overall
( 14 statement accreditation and capacity of the hospital.
15 She had every reason to expect Mr. Sinclair to 16 answer along the line of the proffered testimony now of Dr.
17 Pelle. She didn't get that answer, so for the point of view 18 of timeliness we put it as of the cross-examination of Mr.
19 Sinclair; and we believe that a fair controversy has arisen 20 by his answer on cross-examination. And you may proffer the
~
21 testimony of Dr. Pelle to meet it.
22 MS. GREER: Thank you.
23 JUDGE SMITH: His testimony on the training is of 24 no moment; it doesn't add anything.
1 J
25 MR. COOK: Your Honor --
-~s .
i Heritage Reporting Corporation (202) 628-4888
22824 ,
1 JUDGE SMITH: What posture does.that leave us 2 procedurally?
3 MR. COOK: That was my question: this testimony, I l 4 understand, will come in through Mr. Lonergan or --
5 JUDGE SMITH: You can object to that.
6 MR. COOK: We most certainly do.
1 7 JUDGE SMITH: For this purpose you' re entitled to ,
8 have Dr. Pelle here live.
9 MR. COOK: Yes, Your Honor.
10- The Applicants' objection is not limited to the 11 fact that Mr. Lonergan's piece is hearsay as it contains Dr.
12 Pelle, since we understand the Board has suspended the 13 subpoenas only with respect to the two Sisters. And that 14 Dr. Pelle will be here on May 31st, next Wednesday.
15 JUDGE SMITH: That's right.
16 MR. COOK: The objection that we have at this 17 point is only to the effect that the AG has just stated this 18 morning that the nctes which were supplied to the Applicants 19 as far as Ms. Barnicle's questions to those three witnesses 20 do not contain any discussion of the statement of Dr. Pelle.
21 I do have a copy of those notes with me and their -
22 substance, as far as Applicants can discern, describes only 23 what the two Sisters say. And therefore, our basis for an
- 24 int,elligent and well informed cross-examination without an 25 understanding of the questions that were put to Dr. Pelle (202) 628-4888 1
u_____
22825
. 1 and his answers, will be very= difficult to proceed.
'(p)f. 2 JUDGE S'MITH: Well, you have between now and 3 Wednesday to-go int'erview him.
4 MR. COOK: Okay, Your Honor.
5 JUDGE SMITH' Are you suggesting they have notes 6 they haven't produced?
7 MR. COOK: We don't know, Your Honor.
8 JUDGE SMITH: If you do?
9 MS. GREER: I've already stated that, in fact, we 10- .do not. We searched our files. I had Arthur Lonergan whc-11 inherited the investigatory --
12 JUDGE SMITH: I recall now. Yes.
13 The representation is whatever the background is, 14- they don't have.
MS. GREER:
15 I'll tell you, I believe what happened 16 with respect to the notes in question, I don't think they 17 ever existed. And I think what happened was, the interview 18 that Ms. Barnicle did with the two Sisters was onsite. The 19 interview that she did --
20 JUDGE SMITH: I don't think we have to know all 21 this. It's sufficient that your representation is that you 22 don't have any notes.
23 MS. GREER: Fine. I 24 MR. COOK: We may inquire, I, understand, at the 25 time Dr. Felle appears before ;he Board about the procedures l
( '
Heritage Reporting Corporation (202) 628-4888 j l
i j
22826 1 and the interviews that took place and what the questions 2 were.
3 JUDGE SMITH: I don't know, you do it at the time i l
4 if it's relevant.
5 MR. COOK: If it's relevant.
6 JUDGE SMITH: I don't like to make predictive 7
- evidentiary rulings. I don't understand right now what the -
8 relevance is. He is here to be examined.
9 MR. COOK: I understand, Your Honor.
10 JUDGE SMITH: And you also have the opportunity to l
11 interview him. And if for some reason you can't interview i
12 him we will take that into account as to the breadth of your l 13 cross-examination.
14 MR. COOK: I understand, Your Honor.
15 JUDGE SMITH: Okay. ,
i 16 And as to the teachers, to the Nuns -- I equate 17 Nuns with teachers as you can tell --
18 (Laughter.)
19 You're going to have act promptly on that, I 20 guess, to come up with a stipulation.
21 Now we want to talk about -- anything further on 22 this? .
23 MR. COOK: Your Honor, if we could just pursue one 24 last matter. .
25 Since we are willing to stipulate to the effect of Heritage Reporting Corporation 4 (202) 628-4888
22827 1 .the Nuns' testimony, but Applicants have not prevailed upon 2 -the substance of the motion in limine with regard to Dr.
3 Pelle. And since the Attorney General's argument is that 4 the two sets of statements are so closely intertwined, 5 Applicants have no objections; would like to drop their 6 objection to the' appearance of the Sisters for the sake of-7 completeness and the most full understanding before the 8 Board, all three parties.
9 JUDGE' SMITH: You hadn't really objected, you had 10 just offered a stipulation in lieu of their appearance. And 11 you certainly are under no obligation to offer a 12 stipulation. That's right.
13 As I understand it.
14 MR. COOK: Yes, Your Honor.
.(/ 15 So Applicants have no objection to the appearance 16 of all three parties. And I understand then that the 17 subpoenas will be reinforced.
18 JUDGE' SMITH: Yes. We vacate --
19 MS. GREER: The suspension.
20 JUDGE SMITH: -- the suspension of the subpoena.
21 We expunge the vacation.
. 22 (Laughter) l l 23 JUDGE SMITH: All right. ,
1 24 MS. GREER: Okay.
l 25 JUDGE SMITH: We are done with this issue.
f\ -
f;V) Heritage Reporting Corporation (202) 628-4888
I 22828 1 Do you want to take up now the St. Hilaire, .
2 Saxner, and Davis matter?
3 MS. GREER: We can do that.
4 JUDGE SMITH: Before we begin the argument, are 5 these buses? Bed buses permanently equipped as bed buses?
_ l 6 I thought that they were to be made suitable as bed buses at 7 the time, as a factual matter. -
8 MR. COOK: Your Honor, that has not been 9 established. The Applicants hava not yet decided, as I 10 understand it, whether the bed buses will be equipped in 11 advance or at the time of the emergency.
12 JUDGE SMITH: I don't mean equipped. I mean 13 configured.
14 MR. COOK: Configured.
15 JUDGE SMITH: Will they be dedicated solely to use 16 as bed buses or will they be available for other uses?
17 MR. COOK: They will not be available for other 18 uses. My understanding --
19 OUDGE McCOLLOM: That's not the testimony we had 20 earlier, I don't believe.
21 JUDGE SMITH: I understand it there was a question 22 of the driver being capable of configuring the bus, which ,
23 would be pointless if they were dedicated.
24 MR. COOK: Your Honor, my understanding -- could I 25 consult with my client for a moment.
l Heritage Reporting Corporation (202) 628-4888 f
i u_ -. -
22829 f 1 (Counsel confers with client.)
1 /"h 2 MR. COOK: Your Honor, in answer to your question, l
(w-).
3 the bed buses are configured in advance. But that they will 4 only'be used at the time of an emergencv. They will sit in 5 a bus yard.
6 JUDGE SMITH: For 40 years. For 40 years the
- 7 buses are doing to sit in that yard.
8 MR. GRAM: Excuse me, Your Honor, maybe I can help 9 clarify. Because I am one of the people that will be 10 involved in the decision process.
11 New Hampshire Yankee is presently evaluating for 12 the ORO for Massachusetts the use of bed buses and the best 13 way to do that.
r"N 14 In New Hampshire buses are mobilized from a normal
)
' 15 bus yard. They go to a nursing home and the nursing home 16 has the bed bus kits at the nursing home and they are 17 installed in the buses.
18 In Massachusetts for the ORO we are evaluating 19 different methods. Right now we don't have anticipation of 20 Massachusetts nursing homes as an example, so we can't work 21 out with them that they will keep the bed bus kits at their 22 places. So we are evaluating, do we have locations or can 23 we set up a central staging area where we would call buses 24 to that central staging area, and then install the bus bed 25 kits at that point.
pe~g .
,, Heritage Reporting Corporation (202) 628-4888
22830 1 Another alternative that is being looked at, it 2 may not be the one we choose, but is to'just go by 40 buses 3 and have them sit in a bus yard already equipped for 40 4 years.
5 JUDGE SMITH: And not used for anything else? -
6 MR. GRAM: Not used for anything else. That is 7 .one_of the options that is being evaluated. -
8 No decision has been made yet.
9 JUDGE SMITH: You start them'up every now and then 10 I would expect.
11 -
MR. GRAM: Check the air pressure in the tires. !
12 (Laughter) 13 MS. GREER: Just as a point of information for the 14 Board. My understanding is that there is about to be an 15 enormous surplusage of school buses here in Massachusetts 16 that can no longer be used as school buses because the 17 legislature has recently passed a law that is going into 18 effect in September.
19 So it is not so -- it does sound a little unusual, 20 but it is not as unusual as it might immediately appear to 21 the Board.
22 JUDGE COLE: You're saying they can get a real ,
23 good deal on the buses.
24, (Laughter) 25 MS. GREER: Any bus that was made before 19-- I Heritage Reporting Corporation (202) 628-4888 i
22831' i
think it is '77 -- can no longer be on the roads as a school i
S (w/ ) 2 tus. So it's about to be as of September 1st, I think it 3 is.
4 JUDGE SMITH: Do you wish to be heard now?
5 MS. GREER: Yes, if I may.
6 I will try and be as brie" as I can on this, but
- 7 the Applicants have raised essentially four central 8 arguments with respect to two portions of the panel's 9 testimony, and that is the St. Hilaire and the Saxner 10 testimony. And then a separate argument with respect to the 11 Davis testimony. And I will address the St. Hilaire and 12 Saxner together as has been addressed by the Applicants in 13 their motion in limine.
,/~') 14 The first argument raised by the Applicants is, in
/ '
i 15 fact, that this testimony is in effect a late filed' 16 contention. We would submit that this is not a new 17 contention; it is not a late filed contention. It is merely 18 evidence that is being submitted in support of an existing 19 contention which is JI-55.
20 I would also concede that it has relevance and 21 import with respect to certain other already previously 22 admitted JI Contentions such as JI-499 and F; JI-50I and J 23 which are essentially those portions of the special facility 24 contentions that go to the issue of not having enough manned 25 vehicles to -- particularly ambulances and wheelchair vans gx
(_f Heritage Reporting Corporation (202) 628-4888-
22832 1
1 to evacuate disabled individuals.
2 But we do not seem to have a new contention with l 3 respect to bed buses admitted here. We are simply seeking 4 to --
5 -
JUDGE SMITH: Wait a minute.
1 6 MS. GREER: Sure.
7 (Pause) -
8 JUDGE McCOLLOM: Would you repeat the contentions 9 and the basis that you just went through?
10 MS. GREER: Right.
11 In our trial brief --
12 JUDGE McCOLLOM: Just give us the numbers.
13 JUDGE SMITH: Just give us the numbers.
14 MS. GREER: Okay. 55, and that would be basis --
15 I've got marked down here Basis C, H, and N. And that is, 16 in fact, the contention --
17 JUDGE McCOLLOM: Just go ahead and list the 18 others.
1 19 MS. GREER: -- that is cited in the trial brief.
20 It also has relevance with respect to JI-49D and F. And
~
21 relevance with respect to JI-50I and J.
22 Shall I continue? ,
23 JUDGE SMITH: Just a moment, please.
24 25 Heritage -Reporting Corporation (202) 628-4888 .
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22833 9 i 1 JUDGE SMITH: Would you point out to the Board 7%
't '2
~
those aspects of 55 that you believe would cover this point?'
3 Or do you concede that the legality of these are 4 not covered, but it is just a subsidiary evidentiary aspect?
5 MS. GREEh: It's a subsidiary evidentiary aspect.
G JUDGE SMITH: So if we were to lookethrough all
- 7 these citations, we are unlikely to find it's against the 8 law to operate?
9 MS. GREER: That's correct. That's correct.
10 JUDGE SMITH:- It's just that you are offering it 11 now as evidence.
12- MS. GREER: Right.
13 And the evidence !s really that we have alleged --
gN 14 JUDGE SMITH: Now, wait.
15 Would you agree that b , issue of bed buses is 16 squarely raised? You are focusing on this point that the 17 lawfulness of using them has never previously been raised 18 until this teatimony was f!. led.
19 MR. COOK: Yes, Your Honor.
20 JUDGE SMITH: How about on discovery? Is this a 21 part of the dispute now, too?
22 MR. COOK: Your Honor, with respect to a direct 23 answer to that question, en December 19, 1988, the ,
24 Massachusetts Attorney General submitted their answers and 25 responses of the Massachusetts Attorney General to the l
)
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22834 -
1 Applicants' interrogatories and request for production of I 2- documents concerning JI Contention 6 and 27 through 63.
3 At page 108 that document, at number question 4 200, Applicants asked, "Please state all the facts 5 v.nderlying Interveners' assertion.that 'most' administrators 6 of nursing homes will not permit the frail, elderly or l
7 others who may be bedridden to be transported in bed buses, ,
8 and define 'most'."
9 The response was that, " Administrators of nursing 10 homes are respcasible for the care and well being of their 11 residents. They will be concerned about entrusting their 12 charges to transportation in uncommon modes of 13 transportation such as bed buses. They will be concerned 14 about possible harm coming to the patients and their own 15 accountability for such harm.
16 "'Most' means the greatest amount."
17 Nowhere that Applicants know of in the course of 18 discovery or during any opportunity to raise this charge at 19 an earlier stage was the claim that the use of 20 transportation would be illegal raised.
21 JUDGE SMITH: That's as close as you can come to -
22 the issue being raised?
23 MR. COOK: Yes.
24 JUDGE SMITH: I see nothing in any of the 25 bases --
(202) 628-4888
22835 i
1 MR. COOK: It was the tactual problems with'the ym i ,/ 2 use of bed buses that is the heart of this issue.
3 JUDGE SMITH: Well, did you Ave any interrogatory L 4 on the -- 55 (c) doesn't even relate t company utility-owned 5 conveyances that I can see.
6 (The Board confers.)
7- MS. GREER: May I address the Board?
8 JUDGE SMITE: Proceed.
9 MS. GREER: Okay. Well, first of all, to respond 10 to the issue just raised about discovery.
11 At the time that our interrogatories were filed, 12 answers to interrogatories were filed, bed buses at that 13 time had been withdrawn as a vehicle to be used under the
"] 14 SPMC. It was not until the beginning of February that the
^ 15 concept of bed buses was reintroduced.
16 And essentially what happened, my underste.nding is
~
17 and certainly I'm sure the Applicants will correct me if I'm 18 wrong, they did a transportation assessment in December.
19 And they came up with the conclusion that we had already 20 come up with, which is that there were in fact not enough 21 ambulances to carry all the -- what they describe as to be ,
22 supines -- from. the EPZ who would need to be t' onsported.
23 At that time since they did not have .enough 24 ambulances, they reintroduced the concept of bed buses as a 25 mode of transportation to transport out from the EPZ supined D
Heritage Reporting Corporation (202) 628-4888 .
22836' 1 individuals.
2 We were first apprised of that piece of 3 information in the beginning of February. At which time, 4 the Board may recall, I filed a motion to at that point open 5 discovery on the issue of bed buses, and to delay filing 6 testimony with respect to bed buses.
7 The Applicants agreed to have informal discovery ,
8 which I then proceeded and did a couple of depositions. And f that's essentially when I learned at that point about the 10 way that they were planning to use bed buses in the dPMC.
11 And then, in connection with that, also with the 12 stipulation that we entered into, it was agreed that any bed 13 bus tuatimony that I would be filing would be filed on the 14 April 10th date, or the second filing which was initially 15 April 3rd and then was back to April 10th. And that's when 16 we submitted the. bed bus testimony that is now before you.
~
17 If I may just address the Board on the argument 18 that has been raised, and then I will leave it to the Board 19 to rule on it.
20 JUDGE SMITH: You, however, entered the hearing
~
21 today, regardless of discovery, prepared to rely upon 22 Contention 55.
23 MS. GREER: Fifty-five.
24 JUDGE SMITH: And the cited bases, and there is 25 nothing that you learned during the discovery which would (202) 628-4888
_ _ _ _ l
i 22837 1 have motivated you to seek an enlargement of any of those
,m s
\._../
) 2 contentions. It's something that you just thought of and 3 developed as an evidentiary matter in responso to thes.e 4 contentions.
5 MS. GREER: That is correct.
6 JI-55 eays that there are not a sufficient number
- 7 of vehicles, including ambulances and wheelchairs, to 8 transport the disabled from the EPZ.
9 We submit that since New Hampshire Yankee is 10 relying on bed buses to transport a substantial number of 11 supine individuals by bed buses, who would otherwise need 12 ambulances, there are not a sufficient number of such 13 vehicles.
rs, 14 And the reason that they are not going to be s le
'- 15 to use bed buses is because they cannot operate them in 16 Massachusetts. And that is essentially the thrust of the 17 Saxner/St. Hilaire testimony.
18 The Board may recall in the need assessment 19 submitted by the Applicants under their testimony in 20 connection with --
21 JUDGE SMITH: Well, don't forget, we are talking 22 right now solely about the newness of the legal aspects of 2? the contention, or have you moved on to another point?
24 MS. GREER: I'm still addressing the fact that I'm 25 not seeking to file a late-filed contention. I'm simply 1
r'~'s r
! ( ,) Heritage Reporting Corporation (202) 628-4888
22838 1 putting this in as an evidentiary point.
2 JUDGE SMITH: Right. And you are still addressing 3 the argument by Mr. Cook here that this is, in effect, a 4 late-filed testimony.
5- - You haven't' moved on to another part of it?
6 MS. GREER: No, I have not.
7 The Applicants have done a need assessment and .
8 found that they need 86 ambulances, plus I believe it's 30 9 bed buses. Thirty bed buses are capable of carrying 300 10 people.
11 JUDGE SMITH: What does this have to do with the 12 legal issue that has come up?
13 I would appreciate it, as you continue discussion, 14 you bring me up to speed in the context of the legal issue 15 that has come up.
16 MS. GREER: Perhaps I don't understand the Board.
17 Can I have one minute to consult?
18 JUDGE SMITH: We're talking now, whatever number 19 needed. You know, now you are talking numbers and those 20 that are needed and all of that type of thing, which is a 21 discussion which seems to be well within the contention.
22 But the issue that we are trying to carve out ,
23 right r.ow to understand this is the legal aspects: Are the 24 legal aspects of it raised timely, or is it, in effect, a 25 new issue raised late, the legal aspects of it.
(202) 628-4888
22839 1 And I have listened to your argument and listened (n - 2 to your argument, and here you are talking about the j
l 3 numbers. And I try to put the numbers into the argument, 4 and I just can't force it.
5 So I just want to know what is it that you are 6 talking about numbers?
. 7 MS. GREER: I'm talking about how this is a 8 supported evidentiary matter supporting JI-55.
9 JUDGE SMITH: I think I understand that you are 10 saying now that the contention says you don't have enough of 11 them and you are going to put some more in, but you can't 12 because they are against the law.
13 MS. GREER: Right.
i
,e'~s 14 JUDGE SMITH: Is that what you are saying?
i
\'s') 15
- MS. GREER: Yes.
16 JUDGE SMITH: Now what do the numbers have to do
'17 with it?
18 That's how many are against the law?
19 MS. GREER: No. How many supine people they will 20 need, and therefore they will not have enough ambulances to 21 carry those people without the bed buses.
22 JUDGE SMITH: Without the bed buses.
23 MS. GREER: Correct. '
24 JUDGE SMITH: But the issue before us right now is 25 that the bed buses cannot be -- they are a need but you O Heritage Reporting Corporation
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22840 1 can't use them because there is no legal authority-for it.
2 MS. GREER: Yes.
3 JUDGE SMITH: All right. And you raise it as an 1 4 evidentiary matter, and not as a new contention.
5 MS. GREER: That's correct.
6 JUDGE SMITH: And our task now is to read the 7 contention and the cases to which you refer, and to.see if, -
8 in our view, it could fairly be inferred that the 9 contentions are broad enough that all of the reasons why 10 there won't be enough should have been included, or do we 11 feel that the allegation that there is a legal impediment to 12 use them is sufficiently discrete and material that it 13 raises a new issue.
14 That's our task right now, isn't it?
15 MS. GREER: Okay. If I may, with respect to the 16 discovery issue, I would point out to the Board that we did 17 not look into the legal i~ssue as to the use of bed buses 18 until the bed buses were reintroduced in February. And 19 until that time, we had in fact not consulted with the i
20 Registry of Motor Vehicles or the Department of Public
~
21 Health on the issue as to whether in fact such -- bear in 22 mind also, under the previous uso, the reason that these ,
23 vehicles are illegal is because since under the new concept 24 of bed buses, they are to be permanently fixed, permanently 25 equipped. And as such, they are ambulances under Heritage Reporting Corporation (202) 628-4888 h,_. __
a ,
r e
J+ 22841 1 Massachusetts law.
- .[y
( ,/ 2 That was in fact not the concept in the way that 3 they were previously going to be used in the SPMC vi.on they 4 were originally introduced. Initially, when they were
! S talked about being used in the SPMC back, I think it was 1* e.
6 Amendment 4, they were going to be -- I 7 JUDGE SMITH: Now, you see, you have gone off to
'8 another issue.
9 Once we decide whether or not the legality of the 10 bed buses 10 appropriately raised at this time, and if we 11 decide in your favor, then we have to go to the next issue, !
l 12 and that is, what is the law.
13 Are you arguing the law now or are you still
[}
V 14 arguing the timeliness?
15 MS. GREER: Timeliness.
16 JUDGE SMITH: All right, timeliness.
17 MS. GREER: Mr. Cook said that when we answered 18 interrogatories in December, we did not raise the legality.
19 Under the concept of bed buses that was going to 20 be used back in Amendment 4, when they were talking about 21 using bed buses, the legality was not an issue because, as
. 22 we understood it, they were going to be using bed buses as 23 they are to be used in the New Hampshire plan, which is that 24 they are going to be set up on the spot. They are not going 25 to be permanently equipped. That was the old way they were f
(
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I 226.2 1 going to be doing it.
2 When they talked about the new way they were going 3 'to be introducing it, and I think the reason that they have 4 not yet consolidated their concept of bed buses, is because 5 if they in fact have them permanently fixed, they are in 6 fact then, at least we would contend, that they are 7 ambulances and cannot be licensed as such in Massachusetts. ,
8 Do you understand what I'm saying?
9 JUDGE SMITH: That's why I asked the question. g), ,
', .e y }
10 MS. GREER: Okay. $f 11 JUDGE SMITH: That's why I asked the quastion of 12 the Panel.
13 MS. GREER: It's only since the February 14 reintroduction that they came in with the idea that these 15 would be permanently fixed. Under previous uses of bed O ,<
16 buses in the SPMC, they were not going to be permanently 17 fixed.
i l
18 So, in fact, the issue only arose in the papers l
19 that came over to us at the beginning of February, okay? !
20 JUDGE SMITH: But at that time you identified it 21 as an issue. -
22 MS. GREER: At that point, when we started doing 23 investigation on it, we identified it as an issue.
24 JUDGE SMITH: And when was that? j 25 MS. GREER: That was when we did discovery on this Heritage Reporting Corporation (202) 628-4888
l L 22843 l
l 1 matter which I believe took place after --
7y
( ) 2 JUDGE SMITH: No. When did you identify the L./
3 legality aspects of it as an issue?
4 MS. (c REER: After we did the depositions which I 5 believe were the end of February, beginning of March. And
= ;
6 then we consulted after doing the depositions with the
. 7 Registry o> Motor Vehicles and Department of Public Health, 8 and then filed this testimony in the beginning of April.
9 JUDGE SMITH: Well, haven't you somewhat undercut 10 your own argument here when you argue that the use of the 11 permanent configuration of the buses only arose - you can't 12 have it both ways, it seems to me.
13 If the issue of the permanent configuration of the 7 'S 14 buses didn't arise until the end of February, and you are
\\'] 15 saying that is such a significantly new matter that the time 16 should be measured from that time and not from the - you 17 could not have been expected to put it in your original 18 contention.
19 Is that what you are saying?
20 MS. GREER: Not to --
21 JUDGE SMITH: You could not have been --
22 MS. GREER: We could not have answered discovery 23 on it back in December. But we say it is comprised --
24 JUDGE SMITH: I'm saying you are saying that you 25 could not have anticipated the legality issue in your
(' / Heritage Reporting Corporation j (202) 628-4888
22844 -
1 Contention 55. -
2 MS. GREER: We say in 55 that there are not enough I
3 vehicles, not enough ambulances.
4 JUDGE SMITH: But at that time there was no legal 5 issue to be raised. .
l 6 MS. GREER: That's correct. ,
f 7 And they still didn't have bed buses back then, .
8 though. They didn't have bed buses back then when we said 9 not enough ambulances. And we stated they still don't have 10 bed buses even under the way that they are planning to do l 11 it. l 12 JUDGE SMITH: So it's not covered by 55 then.
13 It's a new matter.
14 NE. GREER: No. The issue under 55 is not enough 15 ambulances, and we say that there are still not enough >
16 ambulances, because the ambulances that they have will have 17 to be used to carry the people that they are planning to 18 carry by bed buses.
19 JUDGE SMITH: So then what happened is that the 20 plan changed. They come up with bed buses; and so you say, 21 well, that's new. 3 i
22 Why didn't you file a new contention? ,
)
23 MS. GREER: Well, first of all, because we foresaw 24 problems, the usual and sundry problems that you would have l l
25 with late-filed contentions. l (202) 628-4888
L l
22845 1 JUDGE SMITH: Right. Exactly.
- n'
\ 2 MS. GREER: And therefore we did not file a new 3 separate bed bus contention because in fact we view it as 4 being the issue as to not having enough ambulances as 5 succinctly set out in 55 as well as under the bases that we -
6 previously mentioned in connection with the other 7 contentions I cited to you.
8 JUDGE SMITH: All right.
9 10 11 12 13 A 14 15 16 17 18 19 20 21 22 l
23 24 25 -
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22846 1 JUDGE SMITH: All right. Anything further on 1
2 this?
3 MS. GREER: No. I will leave that portion. And 4 if the Board wishes, I will move on to their other --
5 JUDGE SMIITH: I remember a telephone conversation 6 with you on it, and Ms. Selleck, in which I believe Ms.
7 Selleck -- I forget the purpose of it. But Ms. Selleck ,
8 informed the Attorney General that bed buses were being 9 reintroduced into the -- had been once in there, taken cut.
10 They were out at the time you filed your contention, right?
11 MS. GREER: No.
12 JUDGE SMITH: They were in when you filed your 1
13 contention?
14 MS. GREER: I'm actually not clear when --
15 JUDGE SMITH: They are not alluded to in your 16 contention, are they, bed buses?
17 MS. GREER: Not in 55. There is one illusion to j
\
18 them. I believe it is over in 50-I. But I believe that was i 1
19 based upon Amendment 4 or 3 of the plan. And I'm not sure 20 whether actually on the date that we filed the contentions, l 21 whether they were in or out. -
22 They then were taken out of the plan and certainly l
23 by Amendment 6, which is when we filed our discovery. j 24 JUDGE SMITH: Okay. We will take the mid-morning 25 break.
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22847 1 (Whereupon, a recess was taken.)
T l 2 JUDGE SMITH: All right. All the active
%J 3 participants are in place right now, so let's proceed.
4 The Board so far is ruling that the issue of the 5 lawfulness of the bed buses is not covered by JI-55, and as 6 far as we know, no other one, nor should it have been, could
. 7 it have been. That it wasn't until the issue of bed buses 8 were reintroduced into the concept, into the plan, that you 9 had any obligation whatever to start talking about bed buses 10 and the lawfulness of them. So we are going to regard it as l 11 late issue. I 12 Now the question is -- as a new issue; not late, 13 as a new issue. But we haven't yet arrived at whether it is
("%g 14 a late issue, because we want to hear from you when, ,
i )
15 assuming that you just learned about it, when do you believe 16 you should have brought it to our attention.
17 Now, I know your argument is "never" because it is 18 an evidentiary consideration of the old one. But you've 19 lost on that. It is a new issue. See, it is not an 20 evidentiary consideration. Almost by your own arguments we 21 infer that that it is not, because it didn't exist.
22 You are now arguing that it is important, but it 23 didn't exist. Therefore, it could not have been a 24 subsidiary evidentiary issue under the old one.
25 Now, when do you think, under Commission Heritage Reporting Corporation (202) 628-4888
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22848 1 precedence, that if you had known in advance that we were 2 going to regard it as a new issue, that you would have had 3 an obligation to seek leave to have it admitted as.an issue?
4 Just review the time milestones.
S MS. GREER: Okay. The time milestones were that ,
6 documents came over to us, and I believe it'was the 7 transportation analysis that came over in, I believe it was -
8 the beginning of February. I believe it was like February 9 2nd or something.
10 JUDGE SMITH: And that was rather soon after Ms.
11 Selleck reported in the telephone conference that they were 12 adding bed buses.
13 MS. GREER: Well, actually, no. That telephone 14 conversation that you have a memory of took place a week 15 later.
16 JUDGE SMITH: A week later. All right.
17 MS. GREER: Yes. Because as soon as those 18 documents came over, I filed a motion.
19 JUDGE SMITH: Oh, that'e right. That was -- okay.
20 MS. GREER: And the telephone conference was in 21 response.
22 JUDGE SMITH: What was your motion? .
23 MS. GREER: My motion was to conduct discovery on 24 bed buses.
25 JUDGE SMITH: All right. Yes.
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22849 .
1 MS. GREER: And at that point we were supposed t6
[</,')
2 be filing our testimony in, I think it was two weeks, on the l 3 21st of February. I believe your telephone conversation 4 took place on, I think it was February 7th, but we wer, 5 supposed to be filing our testimony on special populations 6 in two weeks. And one of the issues under special
. 7 populations was ambulances and evacuation and whether there 8 were going to be enough numbers and so forth and so on.
9 JUDGE SMITH: Yes.
10 MS. GREER: And so I asked to be able to conduct 11 discovery on bed buses, and then back off the filing of bed 12 bus testimony until the second wave, which at that point was 13 scheduled for April 3. And that was ultimately agreed to.
f-ss 14 And after we did the filing on February 21, I then kh 15 did a couple of depositions. One was of Diane Bovino, and I 16 think she wao here earlier, and she may in fact have a 17 recollection of exactly what day that was.
18 JUDGE SMITH: But when was the approximate time?
19 MS. GREER: It was approximately the beginning of 20 March.
21 JUDGE SMITH: Okay.
22 MS. GREER: After we had done our filing and 23 after, I believe it was after the Applicants had filed their 24 first wave testimony which was February 28th. And a few 25 days later, later having completed the first filing, we then f
j% *
(~ ) Heritage Reporting Corporation (202) 628-4888
p 22850 1 did depositions of Ms. Bovino, Mr. Strope, and I believe it 2 was Mr. Boyd.
3 I believe it was in one of those depositions that 4 'it in fact came out that what they were looking to do was, 5 and it was committed that in fact their current 6 contemplation was to in fact have these vehicles permanently 7 set up. . l 8 There may have been some intimation of that in a l 9 document that was identified as the bed bus specifications, 10 but I'm not sure whether that document came to us in the 11 initial packet, or whether in fact it was a document that 12 was produced at the depositions.
13 But it certainly became clear during the course of 14 the depositions that the bed buses -- the contemplation was 15 that the bed buses were going to be permanently configured.
16 And then we consulted with, under the contemplation we 17 consulted with Registry first and then Public Health, and we 18 finally filed our testimony with the second wave, which was 19 initially scheduled for April 3rd and then was backed off to 20 the 10th.
~
21 JUDGE SMITH: I'm sorry. My attention drifted 22 there at the very end. ,
23 Would you repeat your last couple of sentences?
24 MS. GREER: Okay. We consulted with the Registry 25 in light of the depositions.
(202) 628-4888 I
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22851 1 JUDGE SMITH: When did you do that?
!.,] 2 MS. GREER: Okay.
3 JUDGE. SMITH: When did you do that?
4 MS. GREER: In the month of March.
5 JUDGE SMITH: Some time during the month of March.
6 MS. GREER: Yes.
7 JUDGE SMITH: Okay. So somehow you sensed that 8 that would be a problem, and you consulted with them, and 9 that's the first that you had what you believed to be the 10 information you needed to raise the issue, the subissue or 11 the evidentiary issue, whatever you want to call it.
12 MS. GREER: Yes. You know, I would have to review 13 the deposition transcripts. But my recollection is that
(N 14 during a deposition some of the issues I asked about were
15 had they made any inquiry into things like insurance, had 16 they made any inquiry into licensing' provisions, where were 17 they getting the drivers from, all those issues.
18 And it became clear during the course of the 19 depositions that they were planning to rely upon bus 20 companies that are already contracting with llew Hampshire 21 Yankee. They have a list of bus companies, as you know, 22 that are already contractors with New Hampshire Yankee. And 23 they had sent out --
24 JUDGE SMITH: Well, I sense that you are 25 wondering. I don't now.
() Heritage Reporting Corporation (202) 528 4888 ww_____-._-._---__--_-__... _ - - . . -
22852 !
i 1 MS. GREER: I'm sorry.
2 JUDGE SMITH: Are you?
3 MS. GREER: I'll stop.
4 I'm simply trying to say -- ,
5 JUDGE SMITH: That does a lot of damage to my 6 concentrate;n on your argument.
7 MS. GREER: Okay. ,
8 JUDGE SMITH: I don't know if you are or not. I 9 just sense that you are.
10 MS. GREER: I'm just trying to - you know, you 11 asked me when I knew about this. l 12 JUDGE SMITH: Yes.
13 MS. GREER: And I don't want to mislead the Board 14 to actually when I knew. And I'm trying to give my best 15 recollection.
I 16 e But my best recoll'ction is that this whole issue 17 arose in light of responses that we got at the depositions 18 as to various things that they would have to consider such 3 l
19 as insurance, manning. j 20 JUDGE SMITH: Right.
I 21 JUDGE COLE: And when were the depositions? -
22 MS. GREER: Beginning of March.
23 JUDGE COLE: Beginning of March.
1 24 JUDGE SMITH: Okay. l i
25 JUDGE COLE: In that conversation, telephone Heritage Reporting Corporation ;
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1 conference that you had I guess just after the first week in r's L)
( 2 3
February.
MS. GREER: Yes.
4 JUDGE COLE: A week after you received the 5 . transportation document. During that telephone conference 6 with Ms. Selleck where she initiated or said something about
. 7 the bed buses are back in, did you at that time raise any 8 issue about the legality of the bed buses in that telephone i 9 conference call?
10 MS. GREER: No. Actually I've got portions of the 11 transcript here. And in the transcript at page 15729, Ms.
12 Selleck says, in the middle of the page.
13 Okay, Judge Smith says at the beginning of the f-~ 14 page.
~/ 15' Judge Smith: "In the meantime, however, take 16 advantage of the opportunity to get the discovery that 17 you've requested here."
18 Ms. Greer: "Okay."
19 Ms. Selleck: "Your Honor, they have the 20 documents," and that's referring to the documents that were 21 sent over end of January, beginning of February. "I will 22 find this draft spec," which I believe she is referring to 23 the bed bus spec, "and we will have depositions as soon as 24 they request it."
25 MS. CHAN: I believe Ms. Greer is reading from the l (202) 628-4889 1
22854 1 transcript February 8th.
2 JUDGE COLE: Now further on in that transcript did 3 you raise any question as to the legality or licensing of 4 the bed buses?
. 5 MS. GREER: No, because I don't believe we even 6 knew how they were going to be configured at that point.
7 JUDGE COLE: Okay. -
8 MR. TROUT: Your Honor, for the sake of the 9 completeness of the record, I would draw the Board's j l
10 attention to the transcript of February 7th, and I would 1 l
11 draw the Board's attention to pages 15696 and 15697. j l
12 JUDGE SMITH: We don't -- l 13 MR. TROUT: I'm sorry.
14 MS. GREER: I'm sorry, Jeffrey, what was that 15 cite?
16 MR. TROUT: It's 15696 and 15697. It's a 17 statement by Ms. Greer which begins on 15695. I'm reading 18 now from the middle of 15696, quoting Ms. Greer now.
19 "Now, from what I understand that they are talking 20 about, to the extent that they are doing anything for bed 21 buses in the Massachusetts plan, they are planning to have 22 the buses fully equipped which would in fact not make any ,
23 sense of having these readily converted ones, but in fact 24 would bespeak the kind of bed buses they used over in 25 Vietnam for evacuation purposes, which were in fact buses b
(202) 628-4888 .
22855 1 that had beds that flipped down."
. 2 The next paragraph, still quoting Ms. Greer.
\ ~
3 "And we don't even know what kind of buses they 4 are talking about, much more how they are, planning to -- if 5 they are not going to actually have them there, whether in 6 fact they are attempting to contract with somebody else, how
. 7 they are planning to staff them, whether in fact such buses 8 .would in fact require license of ambulances here in 9 -Massachusetts."
10 Continuing now on 15697, "Here in Massachusetts",
11 oh, this is a new paragraph.
12 "Here in Massachusetts, if in fact a vehicle is 13 used exclusively for the purpose of transporting injured or 14 sick people, you need an ambulance license. And so if in 15 fact they are now planning to transport other people on 16 these same buses, and the ones up in New Hampshire in fact 17 did have some seating capacity left over apparently on them, 18 I have never even seen those buses, but this is my 19 information, they would need a separate kind of license."
20 And the final paragraph, "And I am not sure 21 whether the proposal that they have here in Massachusetts 22 for buses would quality under the Department of Public 23 Health requirements for an ambulance license."
24 And then the transcript continues with a statement 25 by Judge Smith and it goes on about discovery.
- l Heritage Reporting Corporation
, (202) 628-4888 l
e
22856 1 I offer that for the sake of the completeness of 2 the record. I'm not sure which way it cuts, Your Honor, ,
3 frankly. j I
l 4 .(The Board confers.)
5 JUDGE SMITH: Okay. Well, we are going to allow 6 the issue.to be put before the Board. We will address the 7 other aspects of it. But we are going to rule that it is a ,
8 new issue and that you acted diligently to pursue it. And 9 that although it might have been better if you had very, 10 very promptly, more promptly raised it as a new issue and 11 addressed the five factors, we are going to, as a matter of 12 Board discretion, find that the sequence of events and the 13 timing of the testimony and everything, you have raised a 14 new issue and you have good cause for the late filing, 15 These are your burdens to raise and I think 16 legitimate complaints could be made to the Board for letting 17 this thing generate this way in terms of argument, and in 18 fact even almost orchestrated by the Board to drag from you 19 almost the facts that we needed to bring it into the hearing 20 as a late-filed issue. We are concerned about that.
21 But as a matter of discretion, the Board is going -
22 to let the issue come in. I mean, have the issue considered 23 timely.
24 Now we will move on to the other aspects of it.
25 But, you know, the one thing that troubles me, we've spent Heritage Reporting Corporation
, (202) 628-4888 A _-_.m______ . _ . _
22857 1 all this time this morning, a lot of time on this, and Mr.
p.
2 Baer is sitting there right now. He has a judgment to make (v).
3 as to whether these things are permanently configured or 4 not, see.
5 And what are you going to do about that?
6 MS. GREER: Well, you know --
. 7 JUDGE SMITH: I mean he can avoid the whole thing 8 as I see it.
9 MS. GREER: I suspect that that in fact may be a 10 consideration that they are evaluating, and that's perhaps 11 why --
12 JUDGE SMITH: So this .ls an awful lot of time on 13 something -- an effort on something that may just never be 14 realized.
(p)
N- 15 MS. GREER: Essentially all we can do is go ahead 16 with the best information we have at this point.
~
17 JUDGE SMITH: That's right.
18 Okay, so that's our ruling.
19 Now we have the other aspects that you wanted to 20 raise. And the next one is?
21 MS. GREER: The next objection that the Applicants 22 raised to the testimony that has been offered is that it 4
23 addresses legal issues.
24 JUDGE SMITH: Right.
25 MS.' GREER: And the Applicants say that generally
()
/
Heritage Reporting (202) 628-4888 Corporation
22858 1 testimony on legal issues is not admitted. The premise that ,
2 that such testimony is typically excluded on is that the 3 courts are in a position, judges sitting in a court of law 4 are in the same position to rule on law, have knowledge of 5 law as an expert testifying to law.
6 Now that is in this case somewhat different, 7 because what Mr. St. Hilaire and Mr. Saxner would be -
8 testifying on would be, first of all, local Massachusetts 9 law, local regulations -- essentially that's the basis that 10 they are considering -- and local procedures in terms of how 11 the two agencies interact with respect to licensing 12 requirements.
13 Now this Panel, while the Panel might -- Federal 14 Courts can take judicial notice of local law, local i 15 regulation, local process, there is no obligation on a 16 Federal Court to do so'. And, therefore, in fact, it is not 17 in the usual posture as to accepting or rejecting legal 18 opinion.
I 19 (The Board confers.) j l
20 MS. GREER: I'm sorry, do you have a question? i 21 JUDGE SMITH: No. Go ahead.
22 MS. GREER: Okay. I would submit to the Board ,
23 that merely fr;m reading the statutes, the Massachusetts 24 statutes even, it's not clear how the regulatory process 25 works with respect to Public Health interacting with the
. (202) 628-4888
22859 1 Registry. And the testimony states facts about the (p) 2 regulatory process that I believe would assist the Board in 3 determining whether in fact such vehicles can be used on the 4 roads of. Massachusetts and can be implemented, therefore, in 5 the SPMC.
6 JUDGE SMITH: All right. As I came away from it
. 7 and I heard your argument, I had expected you to make 8 another argument, which you didn't. That's a good point you 9 are making. They are talking about the factual reality of 10 the interplay between the two agencies and the factual 11 reality of the relationship between regulations.
12 I expected you to also testify -- let me just 13 state that their testimony covers their practices, how they
,r^g 14 have applied these regulations, and they don't say that.
\- 15 They don't say that. And what I think that they are saying, 16 if it ever came up, you know, if it ever came up, the 17 licensing of bed buses, this is what we would do, and that's 18 a different matter. That is, as I think as you concede, is 19 pretty much a legal opinion and worse, an advisory opinion 20 as compared to the ruling that we have made many times. And 21 that is, someone's testimony as to their practices and their 22 interpretation of a regulation as it fashions their 23 activities is acceptable. But they haven't really said 24 that.
25 So I think that the solution is that maybe there I
7
( Heritage Reporting Corporation (202) 628-4888 m______ _ _ _ _ _ _ _ _ - _
22860 l
1 is voir dire on this. If they are, in the face of 2 litigation, being a component to a party here giving us an i
f 3 advisory opinion as to the law on the matter, then we will 4 .have some problems with it.
5 If their testimony is, however, that this is our y
6 regular practice as v construe these laws and, ind.oed, 7 perhaps that, sure, we do apply the law, that would be .
8 another matter. But it's not clear.
9 MS. GREER: Okay. Obviously, this particular 10 Panel was not in a position to say, our process is regularly 11 to exclude bed buses because ---
12 JUDGE SMITH: It hasn't come up.
13 MS. GREER: That's right.
14 JUDGE SMITH: That's my trouble with it, too.
15 16 17 18 19 20
~
21 22 .
23 24 25 (202) 628-4888 mm________
. 22861 1 MS. GREER: But they are in a position and do say, i 7m
(
) 2 essentially, "This is our process with respect to vehicles
<J 3 that carry injured people. And this is what you have to do.
4 This is what you have to meet."
i 5 JUDGE SMITH: What their actual practice is under !
6 the law.
. 7 MS. GREER: As it exists, yes.
8 JUDGE SMITH: What do you say, Mr. Cook?
9 MR. COOK: Your Honor, the distinction that this 10 Court has raised is the dispositive distinction at issue, 11 whether this testimony goes to describing the customs and 12 the practices of the Registry of Motor Vehicles and the 13 Department of Public Health or whether it goes to evaluating 14 the effect of those practices on the use of bed buses as far 7-s w- 15 as the necessity for licensing and certification.
16 The Applicants argue that on pages 4 and 8, the 17 conclusions of Messrs. Saxner and Hilaire are about the 18 evaluation of the use of bed buses, not a discussion of 19 information.
20 I'm looking particularly at question number 9, on 21 the top of page 4, in which Mr. Saxner is asked: "Would the 22 proposed evacuation bed buses in the SPMC need to obtain 23 certification from the Department of Public Health to 24 operate as ambulances?"
25 And the answer is: "Yes, if it was to come to the Heritage Reporting Corporation
-( (202) 628-4888
22862 I
L 1 attention of the Registry of Motor Vehicles that any motor l'
l 2 vehicle was registered or seeking to be registered as an 3 ambulance'without obtaining a certificate from the 4 Department of Public Health, the Registry would refuse to 5 register."
~
6 JUDGE SMITH: That is a factual statement.
7 MR. COOK: But it is a statement about how the .
8 Registry would use the laws of the Commonwealth to reach a 9 conclusion that incorporates an evaluation of the laws of 10 the Registry in the same way that on page 8 Mr. Saxner is 11 asked: "Could those vehicles receive the certification of 12 ambulances?"
13 And answer number 23 is: "No."
14 "Why not?"
15 It is '.his testimony's emphasis on results and ;
16 legal conclusions as opposed to, by comparison, a securities 17 case in which an expert is *;rought in to testify about the 18 customs and practices of the relevant entity.
19 And for that reason the Applicants object to the 20 legal opinion in this testimony.
21 MR. BACHNANN: May the Staff make a few comments -
22 on this?
23 JUDGE SMITH: Yes, please.
24 MR. BACHMANN: One observation is that the 25 ultimate go , if the Mass AG were to prevail on this type Heritage Reporting Corporation (202) 628-4888 i
22863 1 of issue, they would essentially be asking this Board to
,n
( 2 define Massachusetts law as a matter of law. You would have
- V) 3 to make a legal finding that they would be precluded and l l
4 that would be illegal. And I don't think that is, shall we )
5 say, the role or even the jurisdiction of this Board to say:
~ j 6 "Yes, it would be' illegal in Massachusetts based on a legal ]
I
. 7 opinion." !
l 8 JUDGE SMITH: Well, you're late to the hearing.
l 9 As a matter of fact, your office did argue pretty 10 much that result on the legal authority issue.
11 But we just jumped right into the middle of 12 Massachusetts law.
I 13 MR. COOK: Your Honor, if I could -- ]
14 MR. BACHMANN: I did have another observation to gN
\s 15 make.
16 JUDGE SMITH: Go ahead.
17 MR. BACHMANN: There was a very roughly analogous 18 situation that occurred in the Shoreham proceeding -- and I 19 use the word " roughly" advisedly -- where the Interveners, 20 which in that case was the County of Suffolk, State of New 21 York, sought to have the Board take official notice of a 22 zoning resolution or ordinance -- I forget exactly what it 23 was -- which would have precluded using a particular site as 24 a reception center.
25 And the way the Gleason Board handled that one was
) Heritage Reporting Corporation (202) 628-4888 i
l.
ema- _-__________m _ _
22864 1 that -- well, there was some other evidentiary problems, but 2 the thrust was the same. That under the local laws you 3 could not do something, it would be illegal. .
4 And it'was ultimately resolved, and it's 5 referenced in ALAB-905, there is mention made of this ,
6 decision, that until some Court of jurisdiction made this 7 ruling that they would not accept such legal type of 8 testimony.
9 And the upshot was that I believe the County of 10 Suffolk went into Court and got an injunction specifically 11 saying, you cannot use this facility because of the zoning 12 ordinance. And based on that injunction, then the Appeal 13 Board, which it was before the Appeal Board at that time, 14 could take official notice that the use of that facility was 15 illegal.
16 But prior to a Court so ruling on that very 17 specific subject, the Licensing Board, and with the inferred 18 approval of the Appeal Board, did not take that sort of l l
19 evidence.
1 20 MS. GREER: If I may just point out, the problem j 21 is that since at this point --
22 JUDGE SMITH: He's on your side, I believe. .
23 MS. GREER: Yes.
24 There are no letters of agreement. We cannot go 25 in and seek an injunction in any state court at this point.
Heritage Reporting Corporation (202) 628-4888 Gl i
22865 1 So therefore, there is no way to do a comparable proceeding.
(m N_
2 JUDGE SMITH: What is your conclusion, though, 3 should we accept the testimony or not?
4 MR. BACHMANN: It's the Staff's position that we 5 should not accept this testimony. It's just really not 6 right by admission over here. And it is asking the Board to I
. 7 reach conclusions that the Board shouldn't really be getting 8 into.
9 JUDGE SMITH: Well, what if, in fact, we approve a 10 plan based upon -- we ignore all the legal aspects of 11 whether they can do this. We've already ruled. We've 12 already ruled in this case that we will accept it as a 13 rebuttal presumption to FEMA findings and legal impediments.
fg 14 And we have, and we have already ruled contrary to
-- 15 your argument in this case. i 16 So the law of the case is that we will look at 17 Massachusetts law where relevant, as a question of fact.
18 But whether in fact Massachusetts law creates an impediment 19 to one of the things that the Applicant seeks to do. {
l 20 MR. COOK: With the leave of the Board? l l
i
~
21 JUDGE SMITH: Yes. )
22 MR. COOK: My understanding of this Board's ruling 23 in the past, Your Honor, is that it is the Board's position 24 that, indeed, wherever a lay-witness and his understanding l
25 of the law can assist the Board in evaluating a situation 1 l
A Corporation Heritage Reporting
(] (202) 628-4888
- 22866 1 and making the conclusion about how it comports with the 1
2 laws of Massachusetts, that it will, in fact, accept that in t
3 evidence, 4 However, the problem with this testimony is that 5 these are legal counsel for'the Commonwealth arguing about l
~
6 their characterization of how the law will be applied.
7 Instead of the lawyers on both sides of this case describing ,
8 the law to the Board and arguing in favor of which way it 9 should be interpreted, you have in-house counsel for the 10 Commonwealth describing their practices.
11 JUDGE SMITH: Right.
12 MR. COOK: And that is the difficulty.
13 JUDGE SMITH: That's right. That's the difficulty 14 facing the Board.
15 They're coming in here and they are offering a 16 legal opinion. And indeed, we are charged with our own 17 responsibility of deciding applicable law and we won't evade 18 that responsibility.
19 But they also have laced their testimony with 20 elements of what actually happens at the Registry. What 21 actually happens or is going to happen. -
22 I think the best thing to do is bring them here.
23 And what we would want to know is: is this purely a 1
24 prediction based upon their interpretation of Massachusetts 25 law or does it have foundation in actual practice at the Heritage Reporting Corporation (202) 628-4888
)
- ' - 22867 1 Registry? I think that is the issue that we would want to
,~
2 see resolved.
(s_- ) ;
3 And it may very well be that we may disagree with i 4 them or agree with them.
5 I don't see this as "either/or." I don't see that 6 we are precluded from looking at Massachusetts law and
. 7 ignoring their predictions as to how they would apply it.
8 But I think we ought to get them here and find out on voir 9 dire or cross-examination, however you choose to do it.
10 Exactly what it is they are saying here.
11 That is with respect to the legal opinion issue.
12 Now, what else do you have?
13 Incidentally, Mr. Cook, the Board believed that 14 your finding here was excellent. That it was easily 7- s s- 15 understood and concise and was a good job. The fact that 16 you've lost --
17 (Laughter) 18 JUDGE SMITH: -- two points is not attributable to 19 the quality of your pleading, however.
20 What's the next point?
21 MS. GREER: All right, continuing right along.
22 The next objection that they have to the testimony 23 is that it is irrelevant because they maintain that there is 24 another provision that allows for emergency use of vehicles.
25 JUDGE SMITH: Yes.
.f~h l
\'
) Heritage Reporting Corporation l (202) 628-4888 l l
. 22868 1 MS. GREER: However, we would submit, first of 2 all, it is not irrelevant because as a planning 3 procedure --
4 JUDGE SMITH: We have just learned right now from 5 this witness that there is a factual issue, isn't there, j l
6 still alive, if that's the case? That there is a factual 7 issue as to whether these vehicles will be devoted ,
8 exclusively to the transportation as argued by you or rather 9 they fall within the special exception.
10 MS. GREER: My understanding is that under the 11 current status they have not yet -- they have, in fact, said 12 that they've contemplated -- presently contemplated the most l 13 likely option to elect, is that they will be permanently 14 configured.
15 JUDGE SMITH: I suspect if they lose on this issue 16 they will just change their mind.
17 MS. UREER: They may well do that.
18 JUDGE SMITH: That's why I am a little bit 19 concerned about how much time we spend on the testimony and 20 everything because I see it coming out this way, and I'm 21 just predicting for the purpose of scheduling and not for '
22 decision-making.
23 That if they lose they' re going to find a place to 24 keep the equipment. If they win they will just keep the 25 equipment on the bus.
(202) 628-4888
l 22869 1 So it may be that you may prevail to the cost of (n)
N_-
2 safety. Having the bus already prepared compared to another i
3 step. But, I don't know, this is one of the problems that I l
4 we always run into in this case. l l
5 MR. COOK: Your Honor, with the Board's permission 6 I could offer one point of clarification.
I
. 7 JUDGE SMITH: Please. !
8 MR. COOK: And that would be simply that the issue 9 of relevancy and the reference to the Title 105, Section 10 170.010 in Attachment A to the Applicants' motion the I
11 crucial issue the Applicants assert is the question of use j 12 and not the question of configuration, but the question of 1
13 what time these will be used.
gg 14 JUDGE SMITH: That's right.
\ ) \
N- / 15 But you see, I saw another subissue here and I 16 that's what I want to ask about.
17 Let's say that you are exactly correct. Let's say 18 that those vehicles were there, they are not certified, and j 19 h'ere comes a major catastrophe as stated in the regulation. ;
l 20 The regulation seems to say that they can be used.
21 But the argument that I see raised is that they I 22 won't be around to be used because they will be illegal to 23 exist for that purpose. See, this is where it may be i i
24 focused. )
25 It may be that they are perfectly legal to exist i
/
(' j} Heritage Reporting Corporation (202) 628-4888
5 l 22870 -
1 for that purpose if t' hey are not used for another purpose.
2 Being in storage, if they are just kept in storage. Or that 3 the licensing requirement is that if they are being used to 4 transport they have to be certified except for this.
5 Do you understand what I'm saying? .
6 MR. COOK: I do, Your Honor.
7 JUDGE SMITH: What we want to know is, I think it ,
8 all boils down to this: do the Registry laws prevent the 9 con' figuration of the buses in anticipation of use as 10 compared to actual use.
11 This is very similar to some elements of ALAB-905 12 in Shoreham. The anticipatory use of the reception center 13 compared to the actual use.
14 MR. COOK: The focus in the counsel's testimony, 15 however, is -- for example, I'm looking at page 6 answer to 16 17. Their argument is that to operats in Massachusetts such 17 vehicles would be required to have certificates as 18 ambulances.
19 And I think the focus on operation by the Attorney 20 General's witnesses in combination with the focus on use in
~
21 the regulation is determinative.
22 MS. GREER: The problem is that Mr. Cook is ,
23 overlooking one provision that is in Massachusetts general 24 laws, chapter ill-C subsection 12, which says that if such 25 vehicles are established and intended to be used by Heritage Reporting Corporation (202) 628-4888 \
l 1
22871 1 something that then becomes an ambulance service, the 2 establishment of such a service is prohibited. And there f.
3 are enforcement provisions that permit the Attorney 4 General's office to, in fact, go in and seek enforcement to l
5 obtain injunction. I believe there are also criminal 6 penalties attached to such an operation.
. 7 So if, in fact, a bus company here or elsewhere 8 was to obtain such configuration of buses and therefore 9 establish a service, an ambulance service, it seems to me 10 that they would have a problem actually maintaining such 11 vehicles because an injunction and/or criminal prosecution 12 possibly could be obtained.
13 And I don't believe that letters of agreement in f 14 that situation would hold up.
15 MR. COOK: The distinction, of course, that's 16 crucial is that between operation as a service connoting 17 continuous operation -- and operation is the important word 18 -- and storage with operation and use during an emergency 19 service.
20 The difference between a one shot use in a very 21 severe emergency recognized by the regulation and operation 22 as a service is what is important; and is, indeed, why 23 testimony on this subject is inappropriate.
24 JUDGE SMITH: Isn't this something that could be 25 decided on the pleadings? It is boiling down to pretty much
( Heritage Reporting (202) 628-4888 Corporation
_ _ _ - - _ _ _ _ _ - - _ . _ _ o.
22872 1 a legal issue.
2 You acknowledge that your witnosses have no 3 experience with bed buses and they probably have no 4 experience with unregistered vehicles set aside for use 5 under the emergency provision.
6 NG. GREER: Actually, I believe that Mr. Saxner 7 does, in fact, have actual experience with vehicles that .
8 have been set up with the intent to be used as ambulances, 9 but have, in fact, not been certified by the Department of j 10 Public Health. And when brought to the Department of Public 11 Health -- I mean, I have to go back and actually double 12 check with him, but I remember having a conversation with 13 him about this. !
14 JUDGE SMITH: But set up with the intention of 15 putting it into operation routinely as compared to I 16 catastrophe.
17 MS. GREER: No.
18 Essentially, warehoused and to be brought out in 19 the event of an emergency. But with the plan, that 20 provision that Mr. Cook is citing to you says, essentially, 21 if there are no other vehicles available in a catastrophe, 22 then you can call in and use other vehicles for ambulances. ,
23 However, in this case, that would essentially stop 24 -- be a defense in any kind of prosecution if such vehicles 25 were used in a catastrophe.
Heritage Reporting Corporation (202) 628-4888 !
_7-_-_ ,
i 22873 1 However, this is as a matter of planning. They 2 have not come in:and shown that there are no other emergency 3 vehicles available. They are coming in here with hundreds 4 of other ambulances in the State of Massachusetts.
5
- JUDGE SMITH: Yes, I know. This is why I just 6 don't want to sidetrack the case because we earlier heard I '
7 the argument, the testimony, and the inference that could be 8 made in the event of an actual emergency those buses won't 9 even have to be used because the governor will commandeer 10 every other ambulance in the area and send them.
11 And he may very well commandeer these, who knows.
12 I don't know.
O 13 14 15 16 17 18 19 20 21
. 22 23 24 25 i
1
~
Heritage ' Reporting Corporation
/ (202) 628-4888 l
1
22874 1 JUDGE SMITH: The Board does not regard this as a 2- significant health and safety problem. It is a legal f 3 problem that we don't think should occupy a. lot of our time.
4 And I think there should be some way to put it to i
5 us on legal papers. Whatever we decide, they can fix it.
_l 6 Do you think the parties can agree to a submission 7 of law on it? Or are you going to need the actual .
8 experience of your witness? Do you want to check with him 9 to see if that is necessary? What can you propose other 10 than parading some people before us who will not give us the 11 information we need to decide or we will have to decide it 12 really based upon, I think, our own interpretation?
13 Don't you believe probably the last analysis is 14 going to be our own interpretation?
15 MS. GREER: I think, in fact, the two people that 16 are most knowledgeable about this area could, in fact, 17 assist the Board in making a determination. And that's why 18 I submitted their testimony on it.
19 JUDGE SMITH: They will already begin with a 20 burden that they are preparing and offering testimony as
~
21 members of the Commonwealth, party to the proceeding, as may 22 very well be an advisory opinion formulated with the view of ,
23 the litigation. That is the burden that they are going to 24 have.
25 On the other hand, we can read their law. But on I
Heritage Reporting Corporation ,
(202) 628-4888 -
i l
-__-------------------__________J
22875 1 the other hand, we-do want to know if they have actual
/s 2
() practices which will have some relevance.
3 And that's what it has really boiled down very, 4 very narrow.
5 NE. GREER: My thought about this is that,;they 6 can be here. I think we now have them scheduled for next
. 7' Tuesday afternoon. They can be here on Tuesday afternoon, 8 and I don't think that their testimony would take a long 9 time.
10 As a matter of fact, I think it would take more of
- 11. the Board's time sorting through all this without their 12 testimony. And I think, in fact, the most efficient way of 13 dealing with the issue is having them come in, sit down, and 14 be available to answer the Board's questions.
k 15 JUDGE SMITH: Bearing in mind that we are unlikely 16 to accept their raw pure legal analysis over our own 17 responsibility. -
18 MS. GREER: I understand.
19 JUDGE SMITH: But we are interested in what they 20 have actually done. What their actual practices have been.
~
21 ,
I think you ought to bring them in. But I prefer 22 to see the issue given to us on paper with the law.
23 MS. GREER: I suspect that both Applicants and we 24 would be submitting proposed findings and conclusions of law 25 with respect to this issue.
Heritage Reporting Corporation
- . (202) 628-4888
__m______m.____ -
22876 l 1 JUDGE SMITH: I guess you will.
2 What recommendations can you make, Mr. Cook?
3 MR. COOK: Your Honor, I don't wish to challenge l 4 any ruling of the Board. I would just note that bringing 5 these witnesses and a cross-examination of these witnesses 6 will, in fact, take a significant amount of time in that a 7 discussion of practices -- a discussion of their opinions -- .
8 a discussion of the practices that they have used in the 9 past instead of discussing the use of bed buses, in this 10 particular situation in the future, will involve extensive 11 consideration.
12 JUDGE SMITH: I don't believe that has to be the 13 case. If you tell them in advance, that's what we want to 14 know about. And if they don't have anything on it, say sc.
15 If they don't.
16 If this is a case of first impression say so, and 17 we'll just decide it on-the law.
18 If it's not, come on in prepared to explain what 19 analogous experiences have they had.
20 MS. GREER: Okay.
~
21 JUDGE SMITH: We can do that. It shouldn't take a 22 lot of time. .
23 Bearing in mind, that we do not regard this as an 24 important issue. Unfortunately, our test is not how 25 important this issue. We can't use that test. Our test is, Heritage Reporting Corporation
, (202) 628-4888 I .
l j
. 22877 I 1 is it relevant.
, fm r 2 I don't think it should take a lot of time. In
()
3 fact, we won't allow it to take a lot of time. If they are 4 not productive right off the bat on examination as to 5 analogous situations, then we're not going to listen.
6 We are not going to endure ovasion or anything
. 7 else. We will want to zero right in on analogous practices.
8 Do you want to consult?
9 MR. COOK: Yes. With the Board's permission.
10 (Counsel conferring.)
11 JUDGE SMITH: Mr. Cook?
12 MR. COOK: Yes, Your Honor.
13 The Applicants accept the Board's ruling. And are.
-~g 14 simply concerned that they have an opportunity to prepare a N-- 15 cross-examination. And to the extent that there was any 16 testimony that went beyond the testimony contained in the 17 submitted filing in particular with regard to what Your -
18 Honor just said about previous experience and circumstances, 19 and whether it is an issue of first impression.
20 JUDGE SMITH: That is what I would have examined 21 it to be an appropriate cross-examination on your part.
22 If we were to accept this testimony as we have, as 23 to the implications in it that they advise and participate 24 -- the implication of this testimony is that on a routine 25 basis they advise their staff and participate on the Corporation
'Q Heritage Reporting (202) 628-4888
_--u.- . . _ - _ - - - - . . . . - . - - _ - _ . - _ - . . _ _ .
i l . 22878 ]
1 registry practices and these buses would not make it.
2 You would cross-examine them as to the foundation 3 of it. And what we are doing now is saying, they better be 4 prepared to be cross-examined on it. That's the posture 5 that you are in.
6 MR. COOK: I understand.
7 JUDGE SMITH: If they are not, then we will -
8 revisit whether this testimony should be received or given 9 any weight.
10 MR. COOK: I understand.
11 JUDGE SMITH: Maybe even stricken, who knows.
12 We'll see what happens.
13 MS. GREER: In light of all that, do you still 14 want to proceed with your objection to Barbara Davis as 15 well?
16 MR. COOK: The Applicants would like to proceed 17 with the second half of their motion. -
18 MS. GREER: Okay.
19 That last ground -- the Applicants' objection to 20 Barbara Davis' testimony is on the ground of relevancy. And
~
21 the relevancy of Barbara Davis' testimony is very simple.
22 There are two ways -- at least as was submitted. There are ,
23 two ways to assess how many vehicles are an adequate number 24 to evacuate the supine injured from the EPZ.
25 One, is to figure out how many people need to be Heritage Reporting Corporation (202,) 628-4888
22879 1 evacuated; and then to look at how many vehicles are under n
! 2 contract.
3 Her testimony is submitted to say that the New 4 Hampshire Yankee ,has adopted the wrong procedure in 5 evaluating how many people need ambulances.
6 And her testimony essentially says, they have 7 premised how many people need ambulances on a false 8 assumption. That false assumption is that there is a 9 difference between level I and level II nursing home care.
10 And because they have premised their assessment of 11 need on a false assumption, they don't know how many people 12 need ambulances. They have no correct assessment as to how 13 many people need anbulances; and therefore, they do not have 14 an adequate plan with respect to it.
(~~}
-- 15 Thato the whole purpose of that piece of 16 testimony and that is how it is relevant.
17 *
(The Board reviews document.)
18 JUDGE SMITH: Yes. I don't know what findings we 19 could make from her finding as to the number of bed buses.
20 I don't know how it helps us at all.
21 MS. GREER: Her testimony, bear in mind, was being 1
22 submitted on their assessment of need. They calculated that l l
23 they needed, I think it was 86 ambulances. And one basis l 24 that they used in that calculation -- they said they needed j 25 86 ambulances and they needed 30 bed buses.
( \
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(.
l 22880 j
l 1 JUDGE SMITH: Didn'tyouextractbncross- j 2 examination pretty much what she would testify to?
l 3 MS. GREER: I certainly worked on it, but I'm not 4 sure whether, in fact, it came out or not.
5 (Laughter) 6 JUDGE SMITH: That Massachusetts has a level I, II 7 scheme based upon method of payment. That's.all she says. .
8 MS. GREER: That's right.
9 JUDGE SMITH: That's all she says.
10 Can that be stipulated to?
11 I don't know that it's relevant. I don't 12 understand the relevance. But do we have to bring somebody 13 to tell us that?
14 MR. LENALD: I thought it was already an exhibit 15 in the case.
16 JUDGE SMITH: Yes, o
17 The relevance is going to have to be explained to 18 me , at least, in the context of something that she doesn't 19 add. She doesn't add anything.
20 MS. GREER: Bear in mind, when we submitted this
~
21 testimony we had not yet had cross-examination.
22 JUDGE SMITH: All right. ,
23 So really, the objection may be thac it's 24 cumulative or something.
25 MS. GREER: Yes. More than relevance I think.
i Heritage Reporting Corporation (202) 628-4888
w i 22881 1 JUDGE SMITH: Would you agree that it may be
.(.
( 2 cumulative?
3 MS. GREER: If, in fact, it is clear to the Board
~
4 that one of the premises for the assessment of need was this 5 false assumption. Yes. ,
6 JUDGE SMITH: The accuracy of the essence of her
. 7 testimony, is that challenged by the Applicants?
8 I mean, it is. There's an exhibit in and we 9 had --
10 MR. LEWALD: It's apparently being offered in 11 relation to a prior contention.
12 JUDGE SMITH: I know. What I'm talking about is 13 accuracy.
14 MR. LEMALD: The only thing we would object to is 15 the characterization that there is a Massachusetts 16 regu1& tion in point and I thought already a matter of record 17 that was introduced during the prior testimony.
18 MR. COOK: And in direct response to Your Honor, 19 we do not object to the characterization.
20 JUDGE SMITH: I mean, what she says, as far as you 21 know, is accurate?
22 MR. COOK: Yes, Your Honor.
23 JUDGE SMITH: So your objection is relevance. But 24 you also concede that that same information is already --
25 that's what her concern is, you concede that her testimony, o
r1t. e1n, cor - .e cn j
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_.__.__.,_.__-_m_u_ _ _ ..____.___.,,,,_._.__.______m__ _ _ _ _ _ _ _ _ _ , , . _ _ _ _ , , _ , _ . _ _ _ _ _ _ _ _ _ , _ __ _ , _ . _ _ . , _ _ _ _ _ _ _ _ _ _ _ _ . _ . , _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _
22882 1 the substance of her testimony is already in evidence as far 2 as an exhibit.
3 And we can leave to proposed findings or whatever, 4 whether it's relevant, whether it'sjmaterial, whatever. Is 5 that fair?
6 MR. LEWALD: That's my recollection.
7 MR. COOK: Yes, Your Honor. -
8 JUDGE SMITH: Well, with that understanding I 9 don't think you need her.
10 You could bring her here and lose what yo'u have so 11 far.
12 MR. LEWALD: There was testimony -- not testimony 13 -- but there was an exhibit, at least my recollection, that 14 set forth a classification of Massachusetts Department of 15 Public Health combining so-cLlled Class I and Class II.
16 - JUDGE SMITH: Right.
17 MR. LEWALD: I don't have the exhibit number, but 18 it's my recollection that it was introduced.
19 JUDGE SMITH: And it was examined upon.
20 MR. LEWALD: Mr. Sinclair was examined on it as to
~
21 whether or not this wasn't a basis he should have adopted. l l
22
~
JUDGE SMITH: Right. ,
23 MS. GREER: Okay.
24 Am I to understand then that you are willing to 25 stipulate that, in fact, the basis upon which an assessment
?
~
j Heritage Reporting Corporation j
. (202) 628-4888 i 4
l-
22883 1 of need was done with respect to ambulances and bed buses
[)j 2 was, in fact, a false premise.
l
(
3 JUDGE SMITH: Let's cut it short.
4 Can't you stipulate that if Ms. Davis came she 5 would stipulate to these facts, but that you don't believe 6 that it's relevant.
- 7 MR. COOK: Yes, Your Honor.
8 JUDGE SMITH: Do you stipulate to that?
9 MS. GREER: If they are willing to stipulate to 10 the facts that Ms. Davis says is true, that's fine.
11 JUDGE SMITH: And whether it's relevant or not, I 12 don't know. But we have a whole record to determine whether 13 it's relevant or not.
-^s 14 We are not ruling by accepting the stipulation 15 that it is relevant. We just don't want her here 16 pointlessly.
17 MR. COOK: Yes, Your Honor.
18 JUDGE SMITH: Is that acceptable?
E 19 MS. GREER: You will then stipulate the admission l 20- of her testimony; and then, make whatever kind --- for 21 whatever kind of proposals we want to make on it and at that 22 point the Board will assess what weight to give to it. Is 23 that what we are doing?
24 MR. COOK: We stipulate to what Ms. Davis says.
25 MS. GREER: Okay.
(202) 628-4888 1
1
22884 1 So you will stipulate to the admission of the 2 testimony; is that true?
3 JUDGE SMITH: That's right.
4 She will stipulate that if she -- you can bring 5 her here and they will have no cross-examination, perhaps, 6 based upon our ruling. So you don't have to bring her.
7 They stipulate that if she were to come she would -
8 testify to that effect. And furthermore, we have observed 9 on our own that her testimony has been paralleled or this 10 would be cumulative as to evidence already in.
11 I mean, all she is saying is that level I is paid 12 by Medicare. That's all she says. And we already have !
13 evidence to that effect.
14 MR. COOK: Your Honor, may I seek the Board's l
15 leave for momentary consultation with counsel?
16 (Counsel conferring.)
17 18 19 20 21 22 ,
23 24 25 Heritage Reporting Corporation (202) 628-4888
22885 1 JUDGE SMITH: Mr. Cook?
p 2 MR. COOK:
( ) Yes.
3 MR. LENALD: Your Honor, could I call the Boards 4 attention to MAG Exhibit 857 5 I have a single -- Mr. Flynn has been kind enough 6 to --
. 7 (Document proffered to the Board.)
8 MR. LEWALD: And it would appear that the subject 9 matter of that exhibit --
10 JUDGE SMITH: It's 88.
11 MR. LEMALD: -- is the very matter that's covered 12 in the testimony of Ms. Davis.
13 JUDGE SMITH: Yes, exactly. Right.'
14 MR. COOK: And for that reason, any stipulation frS I
\/ 15 would be to the factual distinction and the reasons 16 therefore that Ms. Davis offers, not to her opinions about
- 17 Applicants's misunderstanding or mischaracterization.
18 JUDGE SMITH: Well, that's another point, yes.
19 I mean, all she is offering her to testify is that 20 Level I is paid by Medicare.
~
21 That's all, isn't it?
22 MS. GREER: Well, it seems to me that that is 23 relevant testimony.
24 JUDGE SMITH: I'm not arguing relevance. I'm just l l
25 saying do we have to have her here -- see, they are
,e y
( )
Heritage Reporting Corporation (202) 628-4888 l
6
22886 1 concerned now that we will accept her testimony to the 2 effect that Applicants --
3 MS. CHAN: Page 9, Your Honor.
4 JUDGE SMITH: She doesn't know if Applicants made 5 incorrect assumptions or not. All she knows is Level I is 6 paid by Medicare. That's all she knows.
7 MS. GREER: Actually, she -- -
8 JUDGE SMITH: She's not going to be available for 9 a finding that Applicants made incorrect assumptions.
10 MS. GREER: Well, actually, she did look at --
11 JUDGE SMITH: Okay, you are going to have to get 12 her here, yes.
13 MS. GREER: Okay. Fine.
14 MS. CHAN: Your Honor, if I might --
~ 15 JUDGE SMITH: I'm telling you, this is 16 exasperating. This is exasperating. We are being held down 17 by a mountain of trivia. Her testimony is not going to add 18 anything to this record.
19 What is her competence to say that the 20 Applicants --
21 MS. GREER: she looked at the testimony, direct 22 testimony -- ,
23 JUDGE SMITH: We are not going to accept her 24 testimony on that. She doesn't show any competence as to 25 what the Applicants have conceived or misconceived at all.
(202) 628-4888
_ . , , ~ _ - - _ _ - - _ _ . . . . _ _ . - . _
22887 s
1- We will decide that.
2 MS. GREER: Okay. If I may cite you to the top of 3 page 9 where the question is: "Have you had a chance to 4 -review'the Applicants' propotal for the allocation of 5 ambulances and bed buses for transporting persons from 6 nursing homes in the SPMC7" 7 "Yes. I have reviewed the Applicants' profiled 8 testimony on that subject."
9 JUDGE SMITH: Yes, ma' am, but the members of this 10 Board have sat in here hour after hour, and we have heard 11 testimony about it. And to have this person come in here 12 and tell us gratuitously that they have misunderstood is 13 just -- it's not going to happen. We are not going to take 14 up her time, even though you can get her here, and we are
\ 15 not going to take up our time. That part of it,-we will 16 strike on our own. -
17 You havent shown, in this' direct testimony, that 18 she has any competence to inform the Board expert testimony 19 as to Applicants' incorrect assumptions.
20 Do you need her for that point?- Do you need her 21 for that statement, or do you want to make that statement as 22 an argument?
. 23 MS. GREER: I'm sorry. For the statement that 24 they made false assumptions?
25 JUDGE SMITH: Yes.
~
s Heritage Reporting Corporation (202) 628-4888
22888 1 MS. GREER: That is the -- her basis for that 2 sts* .
- 6 .t was reviewing the Applicants' prefiled testimony 3 and her knowledge of what Level I and Leve.1 II care meant in 4 Massachusetts.
5 JUDGE SMITH: All right.
^
6 MS. GREER: *And I believe --
7 JUDGE SMITH: Is she a better reader of testimony ,
8 than the Board?
9 MS. GREER: The Applicants' testimony on that was 10 gone.
11 JUDGE SMITH: You just are incapable of answering 12 my questions. Why is that? Is it that you don't understand 13 them, you don't want to, or what is it?
14 MS. GREER: She is in fact in this instance a 15 better -- in a better position, because that Applicants' 16 testimony was withdrawn.
17 dUDGE SMITH: But these are her reasons. She says 18 they have made the incorrect assumptions based upon what?
19 MS. GREER: Based upon her reading of the prefiled 20 testimony.
21 JUDGE SMITH: No, based upon Level I and Level II; -
22 Level I being social security.
23 Is that it, or is there other reasons?
24 If there are other reasons, then it could be 25 objected to because it's not revealed in the testimony.
Heritage Reporting Corporation (202) 628-4888 i
1
1 1
22889 1 1- MS. GREER: Well, I think the only additional
/
2 thing that her testimony adds on that point is that the same 3 people are at various times of the. year Level I patients and
'4' then Level II patients, depending upon the reimbursements.
5 We're talking about the same people.
I 6 I don't think that's absolutely clear merely from
- - 7 the reading of the regulations.
8 JUDGE SMITH: What do you say?
9 Who-is arguing this for the Applicants?
10 Mr. Cook, they are going to offer her now for the 11 testimony,'to the effect that your assumptions are 12 incorrect.
13- MR. COOK: Your Honor, the Applicants have one 14 primary concern with this tstimony on the assumptions, as 15 the Board has recognized, is that the distinction b tween 16 Level I and Level II exists in this record, as we understand -
17 it, and the relevance of the assumption and what the error 18 in the assumption was to the determination that bed buses 19 cannot be used has not been demonstrated, and that is our 20 concern.
21 JUDGE SMITH: I don't understand what you said.
- 22. MR. COOK: Yes, Your Honor, I am essentially --
23 JUDGE COLE: You are saying it doesn't make any 24 . difference whether they are Level I or Level II with respect 25 to what --
( Heritage Reporting (202) 628-4888 Corporation
22890 l
1 MR. COOK: To bed buses, q 2 JUDGE COLE: -- the Applicant is doing?
3 MR. COOK: Yes, but more specifically, how does 4 that make a difference to the use of bed buses or not from 5 the testimony. And since this has not been demonstrated, to i
6 bring in Ms. Davis, who is not apparently as familiar with 7 this information -- -
8 JUDGE SMITH: Well, let's cut it short.
9 MR. COOK: Yes.
10 JUDGE SMITH: The direct testimony does not 11 demonstrate any basis whatever, other than the balance of 12 the testimony for Ms. Davis' expert opinion, or whatever the 13 opinion is. You begin the testimony under the statement 14 that the Applicants made incorrect assumptions, and the 15 reasons she gives for are the reasons that follow, and those 16 are strictly cumulative reasons and we are not going to give 17 her status as an expert, if that's why you offer her, any 18 special status as to whether those reasons support her 19 conclusion.
20 I've tried to handic this on a broader subject 21 matter basis, but every time I try to do that something pops 22 up that there is a sentence in here that I didn't focus on. ,
23 Now, is there anything else about the balance of 24 her testimony that troubles you?
25 If she were on the stand, would you cross-examine Heritage Reporting Corporation (202) 628-4888
22891 1 her? -
,m j
j
,(v) 2 (Paus e . ) ,
3 MR. COOK: No.
4 JUDGE SMITH: .Put her here. And I want to tell 5 you we will not accept her opinion as to whether the 6 Applicants made incorrect assumptions in terms of allocation
. 7 of vehicles. We will not accept it. We already ruled we 8 will not accept it.
9 Now she's not going to be cross-examined. Why 10 don't you just offer it?
11 MS. GREER: That's fine.
12 JUDGE SMITH: See, you could save her that trip.
13 Why do you insist upon having that statement in there that
,r-g 14 you know is not going to help your case?
\w / 15 Why do you put the people to that burden? Why do 16 you put her to that burden? Why do you put the Board to 17 that burden?
18 You are a competent counsel. You know that you 19 can't get her testimony in on that statement, don't you?
20 You don't.
~
21 MS. GREER: I was under the impression that she 22 could, by reading that prefiled testimony, make that kind of 23 opinion based upon her reading of it.
24 JUDGE SMITH: Well, we rule now that you have not 25 demonstrated any expertise or competence on her part to rm
/ \
( ) Heritage Reporting Corporation (202) 628-4888
22892 1 support that statement. -
2 MS. GREER: Fine.
3 Do you want to then proceed with Mr. Brock's 4 cross-examination? ,
5 JUDGE SMITH: We will break for lunch then.
6 MS. GREER: Okay.
7 JUDGE SMITH: I hope when you bring Ms. Davis here .
8 that she understand that you are bringing her here 9 pointlessly. You know, I imagine this lady is busy 10 attending people and worrying about problems, and you are 11 bringing her here pointlessly, but that's your call.
12 We will break until 1:05.
1 13 (Whereupon, at 12:05 p.m., the hearing was 14 recessed, to resume at 1:05 p.m., this same day, Thursday, 15 May 24, 1989.)
16 17 18 19 20 21 22 .
23 24 25 (202) 628-4888 l
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22893 N 1 AESEBHQQH EEEEIQH
/
( )\ ,
2 (1:06 p.m.)
3 JUDGE SMITH: When we broke for lunch, Ms. Chan 4 approached the Board to remind us that Massachusetts 5 Attorney General Exhibit 88 had been rejected as a i
6 consequence of the Staff's objections based upon relevancy.
~
7 Now, 88 is really the document that had earlier been alluded 8 to as MAG Exhibit 85. I think that was an error.
9 MR. LEWALD: That was an incorrect reference to 10 that.
11 JUDGE SMITH: And that is the circular letter of 12 the Division of Health Care Quality of October 17, 1987, 13 which discussed the classifications of Level I and Level II.
l} 14 Ms. Chan objected on the basis of relevance at 15 transcript page 21380. A discussion ensues. And on page 16 21391, the Board determined that the circular letter 17 describing the change and the reasons for the Level 18 classification was irrelevant, and we rejected the offer of 19 Exhibit 88. -
4 20 We also observed, on page 21391, that the 21 regulations don't help, an allusion to informing adding to
. 22 the record. If Ms. Greer believes that the classifications 23 used by the' Panel and if Mr. Sinclair during that cross-24 examination were wrong, she should bring in a witness. But 25 the regulations don't help. Put the witnesses there and O- Heritage Reporting Corporation (202) 628-4888 ;
22894 1 they can explain why. i 2 Ms. Greer explained that they already have 3 scheduled the witnesses to come in, and apparently she was 4 talking about Ms. Davis' testimony. And Ms. Davis' 5 testimony is really nothing more than a recitation of the 6 regulation in that respect, and it is also irrelevant.
7 The underlying point being that the ,
8 classifications used by the Panel were functional 9 classifications, and the fact that the Division of Health 10 Care Quality decided to make Level I a payment 11 classification was not relevant to the four levels that were 12 used by the Applicants' witnesses.
13 We see no difference between Ms. Davis' testimony 14 substantively than the information in Exhibit 88. So the 15 correct ruling on the Davis testimony is it is similarly 16 irrelevant.
17 Our previous ruling that it was cumulative was a 18 faulty ruling, because it couldn't be cumulative to l
19 something that had been rejected. So the original motion by ,
1 20 the Applicants was the correct one. So it is rejected on !
- i 21 the grounds of relevancy. i 22 MS. GREER: If I may just put on the record one --
. i 23 I understand the Board's ruling and I'm not going to belabor f 24 it. But I would like the record to reflect why I believ~e l
l 25 that ruling is wrong in this case. l l
(202) 628-4888 l
F; 22895 1 M a y I ?- -
2 JUDGE. SMITH: The difference between the ruling on.
3 88 and the' ruling with respect to Ms. Davis' testimony?
. 4- MS. GREER: No, not that difference.
5 JUDGE SMITH: Well, that's the difference you are L 6 goin'g to need.
- . 7 MS. GREER: Okay. -
8 JUDGE SMITH: Because otherwise, we have already 9 ruled on the same subject matter.
10 MS. GREER: My understanding is that the Board 11 made that ruling with respect to 88 on the assumption that 12 Mr. Sinclair used a functional characterization to 13 distinguish between Level I and Level II patients.
- 14 That is in fact not true. He took the lists 15 provided by the Department of Public Health reflecting-Level ;
16 I knd Level II patients. That was in the prefiled testimony 17 that was withdrawn. They took the list provided by Public 18 Health. The Public Health lists show not a functional 19 difference, but merely a payment difference. And that's i 20 where I believe the Board is in error in --
21 JUDGE SMITH: But, you see, you haven't 22 established that, and you can never establish it by this.
23 JUDGE COLE: Ms. Greer, I refer you to transcript 24 page 21388, a response of Mr. Callendrello to a question 25 about how the numbers were determined. And the states that
-( Heritage Reporting Corporation (202) 628-4888
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22896 1 the manner-in which the questions were aske.d of $he people 2 and subsequently how the numbers were determined. And 3 that's uncontroverted.
4 MS. GREER: That is with respect to the nursing 5 homes that partic.ipated. It's with respect to the two 6 nursing homes that did not participate that they took the 7 Public Health lists. The Public Health lists only reflect -
8 payment difference, not standard of care difference, which 9 is the premise that they were going on.
10 JUDGE SMITH: Well, you haven't established that 11 they misused Levels I and II as defined by Exhibit 88, and 12 misinterpreted and misapplied them. They have arrived at 13 their own functional levels by different means. They said 14 that they used a different source of information.
15 Whatever they are, they are described. They are 16 described in their testimony, and the source of them, you 17 have nc. demonstrated any misunderstanding of the 18 Massachusetts standards.
19 So our ruling remains the same.
20 MS. DOUGHTY: Your Honor, I have a matter I would 21 just like to bring to the Board's attention early. And that 22 is, the Seacoast Anti-Pollution League is interling to bring ,
23 some rebuttal testimony with respect to the Applicants' 24 special population. I believe it was Panel No. 6.
25 And we have not had the opportunity to really work Heritage Reporting Corporation (202) 628-4888 9I ]
1 l
1 l
22897 1 with our witness in detail, and he's had a dea _th in the
/x .
2 family and his availability is going to be difficult until (v) 3 June 4th.
But his name is Belton Burrows. He's a doctor at 4 the VA Hospital in Roxbury, and also affiliated with Boston 5 University Medical Center.
6 And he is prospectively, or at least we are
. 7 intending to bring him as a witness at this time on some 8 matters related to that testimony.
9 JUDGE SMITH: I think you better disclose as much 10 as you can about what he's going to testify about, too. I 11 mean you prudently have identified your witness. Now you 12 had better also tell us as much about the nature of his 13 testimony.
.s 14 MS. DOUGHTY: Okay. Well, that is still very I )
's
/ 15 general. I have not had a chance to sit down with the 16 gentleman yet and work with him. And I, furthermore, want 17 to go back and reread the transcripts, which is difficult.
18 I am going to try to go over to the Attorney General's 19 office and avail myself of their transcripts tomorrow 20 afternoon and go through them to make sure I've identified 21 all the points.
22 But the general areas that we have identified so 23 far are JCAH accreditation, and the general matter of not 24 having all the people who are identified as contaminated in 25 the trailers be referred for medical treatment or
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o 22898 1 observation, and just instead be put into a tracking program 2 as they are intending at this point.
Those are the two )
3 matters that I know of at this point that we are looking at 4 seriously, and there may be others, but I haven't had the 5 opportunity t'o really go through those transcripts yet.
6 JUDGE SMITH: Mr. Brock?
7 MR. BROCK: Thank you, Your Honor. .
8 Just for the record, I believe that the Mass AG 9 Exhibit 100, which was the rejected Sikich-Paolillo 10 testimony with attachment, has been filed and distributed in 11 proper form.
12 And that also the Mass AG Exhibit 101, which was 13 the complete set of the exercise evaluation methodology of 14 FEMA, has also been distributed. I just wanted that for the i 15 record.
16 One last preliminary matter, Your Honor, with 17 respect to scheduling. I understand that the Town of 18 Amesbury was scheduled to be here tomorrow with their Panel.
19 I have been informed that Amesbury has now entered in or in 20 the process of entering into a stipulation with the 21 Applicants on that testimony, so that that will not be 22 presented.
23 The next individuals who are ready to appear are 24 the ned bus Panel. And I'm informed that they will not be 25 available -- they are presently scheduled for Tuesday, and (202) 628-4888 L_.______._----_ .__
)
22899 1 would not be available for tomorrow.
/~'N - l 2 Having said that, Your Honor, it may be that
(} i 3 between my cross and I understand Ms. Doughty has some cross 4 for SAPL on the scope panel and any redirect, we may fill 5 the time. And I would certainly expect we would fill most 6 of that time, but we don't have somebody in the on-deck
. 7 circle given what I have just learned about the stipulation 8 with the Applicants.
9 JUDGE SMITH: Thank you.
10 11 12 13 14
,23)
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REBUTTAL NO. 23 PANEL - CROSS 22900 -
1 Whereupon, 2 JOHN W. BAER 3 ANTHONY M. CALLENDRELLO 4 GEORGE R. GRAM, II 5 having been previously duly sworn, resumed the witness stand 6 herein, and were examined and further testified as follows:
7 CROSS-EXAMINATION (Continued) -
8 , BY MR. BROCK:
9 Q Mr. Gram, I just would like to pick up on a couple 10 points briefly that were addressed yesterday.
11 First of all, I would like to distribute what has 12 been provided to me as minutes of two meetings, which I 13 believr Mr. Gram referred to yesterday as involved in the 14 development of the scenario and Extent of Play.
15 And these will be distributed at this time.
16 (Documents proffered to all parties.)
17 MR. BROCK: And for the record, Your Honor, these 18 exhibits I believe -- the next one would be Mass AG Exhibit 19 102.
20 It has a cover letter dated April 12, 1988, signed
^
21 by George Gram. And the attachment are the -- it's 22 entitled, " Exercise Objectives and Extent of Play Meeting ,
23 Notes, April 1, 1988."
24 That would be Mass AG 102. .
25 Mass AG 103 would be, again, with a cover letter .
(202) 628-4888
REBUTTAL NO.-23 PANEL - CROSS 22901 l' signed by Mr.-Gram, dated May 6, 1988 and the subject as 2' identified'in the letter'is the April 20, 1988 FEMA graded 3- exercise scenario review meeting at Seabrook Station.
4 (The documents referred 5 to were marked for '
6 identification as
. 7 ,
Mass AG Exhibit 102 and 8 103.)
9 NS. CHAN: Mr. Brock.
10 MR. BROCK: 'Yes.
11 MS. CHAN: I noticed that you numbered 102. Did 12 you want to mark your rejected Hilaire-Davis. testimony as 13 rejected exhibit 102? You didn't mark that piece of 14 testimony. Were you planning to do it?. You might kaep it 15 in order.
16 JUDGE SMITH: You were talking to Mr. Brock, but I 17 wonder if I should have heard it, too. I didn't hear you.
18 MS. CHAN: I'm sorry.
19 The Ma ss AG -- I didn't think there was any 20 disposition of the Hilaire-Davis panel testimony, if they 21 wanted to mark that as the next exhibit before this --
L 22 JUDGE SMITH: Oh, no. You do have a little bit of 23 a problem there.
L 24 There was one piece of testimony we did not 25 strike, the first two witnesses. We did strike Davis. You
- ( Beritage Reporting (202) 628-4888 Corporation l
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REBUTTAL NO. 23 PANEL - CROSS 22902 l 1 are going to have to accommodate that someway. Ms. Greer is 2 not here.
3 What you do is you wait until the whole matter is 4 resolved and then present something for the rejected exhibit j 5 file, something appropriately showing what was rejected.
6 MR. BROCK: That's fine, Your Honor.
7 Well, we would submit the testimony with the 8 witnesses, and at that point we would offer the entire 9 testimony and that portion rejected could be marked at that 10 time.
11 MS. CHAN: Thank you, Your Honor.
12 BY MR. BROCK:
13 Q Now, Mr. Gram, do you have before you what has 14 been identified as Mass AG Exhibit 102, and that's again 15 with the cover letter signed by you of April 12, 19887 16 A (Gram) Yes, I do.
17 Q I understand you gave a summary opinion and 18 discussion about the events of that April 1 meeting 19 yesterday; is that correct?
20 Yesterday part of your discussion referred to a 21 meeting which occurred on April 1; correct? -
22 A (Gram) Yes.
23 Q And the minutes which are attached to Mass AG 24 Exhibit 102 or a part of that exhibit are the minutes of the 25 meeting to which you refer?
Heritage Reporting Corporation (202) 628-4888 l
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REBUTTAL NO. 23 PANEL - CROSS 22903 1 A (Gram) Yes, sir.
2- Q 'All right.
3 I don't want to belabor the point because as Mr.
4 Lewald says this document does detail certain events which 5 occurred there.
6 But you have reviewed this document and in your' 7 opinion it accurately states the events which occurred at 8 that meeting, to the best of your recollection?
9 A (Gram) Yes, sir.
10 Q Let me just refer to the first page of the 11 exercise objectives and Extent of Play meeting notes.
12 At the top of the page under that there is the 13 date April 1, 1988, and then it says, " Revision 1."
14 Do you see that?
k 15 A (Gram) I'm sorry, which page?
16 Q It's the second page of the exhibit and the first 17 page of the notes?
18 A (Gram) It begins: " Opening remarks" at the top of 19 the page?
20 Q That is correct.
21 A (Gram) Yes.
22 Q And just above where it says, " Opening remarks" 23 there is a notation which says " Revision 1."
24 Do you see that?
25 A (Gram) Yes, sir.
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RE3UTTAL NO. 23 PANEL - CROSS 22904 1 Q Can you tell me or do you recall what was the 2 original version of these notes or how were they different 3 from what appears here?
4 A (Gram) No.
5 Q You have no memory of that?
6 A (Gram) No.
7 Q Let me refer you just to one other page. I think ,
8 that would be the sixth page in the exhibit and the fifth 9 page of the notes. It's entitled " Constraints and 10 influences on exercise Extent of Play."
11 Do you see that?
12 A (Gram) Yes, sir.
13 Q And referring to the second paragraph, about the 14 middle of that paragraph it begins: "In order to minimize 15 the possibility of a successful challenge to the scope of.
16 the Seabrook exercise we propose to approach the decision-17 making process analytically by: one, identifying the 18 constraints and influences which we all believe impact 19 reasonably achievable Extent of Play."
20 A (Gram) I'm sorry, I don't know where you are at.
21 Q Do you have it now, sir? -
22 A (Gram) Yes, I'm with you.
23 Yes.
24 Q Do you see the sentence beginning: i'In order to 25 minimize the possibility."
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RE2UTTAL NC.. 23 PANEL - CROSS 22905 i l
1 Is that correct? :
2 A (Gram) Yes.
'N /
) . !
t 3 0 Well, just take a minute and would you read that' ;
l 4 , to the end of the paragraph, and I just want to ask you one 5 or two questions about that. ~
. j 6 A (Gram) "In order to minimize the possibility" --
.. 7 Q You can just read it to yourself. j 8 A (Gram) Excuse me. l 9 Thank you.
10 (Witness reading document.)
11 EY MR. BROCK: ,
12 Q Have you had a chance to review that?
l 13 A (Gram) Yes, sir. ]
14 Q And is it fair to say that the language in there j 15 expresses a concern and desire to pay particular attention f 16 in the development of the scope and Extent of Play for this !
)
17 exercise to be sure that it' complies with regulatory i i
18 ' standards and applicable law as you understood it? l 19 A (Callendrello) I think that's what I testified to ]
20 yesterday, Mr. Brock.
21 Q And just so that it is clear, this is stated as a ;
22 proposal in that sentence.
23 Would you agree, Mr. Callendrello, that this 24 proposal was carried out in the development of the Extent of i
25 Play? !
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REBUT'T A L NO. 23 PANEL - CROSS 2.2906 1 That the gcals that are stated here, were they, in 2 fact, implemented in the development of the final Extent of )
3 Plays l l
4 A (Callendrello) Let me just look at it one more !
5 time. -
6 MR. COOK: Excuse me, Mr. Brock.
]
7 Where are you reading from? .
6 MR. BROCK: Mass AG 102, cover letter is April 12, 9 1988. I am at the sixth page of the exhibit entitled 10 " Constraints and influences on exercise Extent of Play."
11 The second paragraph in the middle, the sentence beginning:
12 "In order to minimize the possibility."
13 BY MR. BROCK:
14 Q Would you agree with that, Mr. Callendrello, that, 15 in fact, those proposals were carried out in the development 16 of the final Extent of Play?
17 A (Callendrello) Yes, I would.
18 Q And you would agree with that, Mr. Gram?
19 A (Gram) Well, I guess I would put it in a little 20 different light.
21 This representation -- this paragraph represents 22 an attempt to develop and document a well thought out ,
23 process. As an example, I think I testified yesterday, part 24 of the last sentence that you asked me to refer to deals 25 with sample sizes.
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REBUTTAL NO. 23 PANEL - CROSS 22907 1 And in the final Extent of Play and the final Y 2 overall scenario, sample , sizes really did not play any kind
[/
\s- .
i 3 of a role.
- 4. ButLthe concept that is elicited here of 5 developing an overall approach and exploring the total 6 bounds of reasonably achievable and constraints or for less 3 7 than reasonably, achievable and documenting'that process, 8 was carried out to the final Extent of Play.
9 Q Thank you.
10 That's a helpful clarification.
. 11 So if I understand, then, your testimony, Mt.
12 Gram, this. Extent of Play, the final document which appears.
13 in Applicants' 61, that was a negotiated agreement between 14 New Hampshire Yankee, Maine, New Hampshire, approved by FEMA 15 and NRC; correct?
16 A (Gram) No.
17 It was -- and the use of the word " negotiated" is 18 really not the right context. Extent of Play was developed 19 by all of the participants in the' exercise including the NRC 20 and FEMA. They were the evaluators, but I use the term 21 " participants" in the whole context of developing the Extent 22 of Play.
23 And again, the Extent of Play is 'one piece of the 24 overall scenario. T'he scenario was made up of 12 large 25 sections that accumulated into seven four-inch ring binders.
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l REBUTTAL NO. 23 PANEL - CROSS 22908 1 Q I understand, Mr. Gram.
2 I'm focusing right now just on Extent of Play.
3 I'm not trying to put words in your mouth, but as I 4 understand this was a give-and-take process where the 5 entities that I just identified made comments on the initial 6 submittal of Extent of Play which evolved into the final 7 document which appears in Applicants' 61; is that correct? ,
8 A (Callendrello) Mr. Brock, maybe it would be l 1
9 helpful to just back up one minute and explain the role of 10 the Extent of Play.
11 We start with major observable elements of an 12 exercise which FEMA has equated to the 37 exercise 13 objectives. Those objectives are to be demonstrated in the 1 14 exercise, the appropriate objectives.
15 We need to tell both the players and the i 16 evaluators what to expect in their observation of the 17 exercise.
18 There is not an Extent of Play that corresponds to 19 every objective. There are some objectives that are 20 demonstrated fully, and there is no need to talk about an 21 Extent of Play or for the evaluator to expect to see
- 22 something different than they would expect to see if they 23 had just read the plan or procedures.
24 F5r example, decision-making: there is no Extent 25 of Play that deals with decision-making because the exercise (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22909 1 observer.or. evaluator that had looked-at the procedure for 2 decision-making would see exactlyLwhat-the procedure;says 3 being carried out.
4 There are some areas, though, some functional 5 ,
areas,where, for whatever the constraint is, it is not 6 possible to demonstrate in an exercise exactly -- the ,
. . 7 activity exactly the way the. plan describes it.
8 And to that extent, you need to make everybody 9 aware upfront what is going to be demonstrated so that,.
10 first of all, the evaluators are sure they have enough 11 information to justify or to verify that it's a 12 demonstration of the workability of the plan. And so that 13 whatever arrangements need to be made for the resources.can 14 be made.
15 In short, these are uhe rules of the 16 demonstration. Here is what you will see and here is what 17 needs to be demonstrated.
18 And a particular Extent of Play may cut across 19 several objectives. I think if you look at that section 3 20- of the scenario you will see under " objective", which is up 21 in the upper right hand corner, one or more objectives that
- 22 are affected by a particular functional area. So that puts 23 the whole process into perspective.
24 At one point that section was known a's 25 " limitations." But it was more truly described as an Extent
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REBUTTAL NO. 23 PANEL - CROSS 22910 1 of Play or here is what you will see happening.
2 Q Thank you, Mr. Callendrello, by way of background.
3 But I believe my question was: that the final 4 document, Extent of Play, isn't it fair to say that that was 5 agreed to by principals I have identified -- New Hampshire 6 Yankee, Maine, New Hampshire, NRC, and FEMA -- before it 7 became the final document upon which, at least for the ,
8 objectives to which the Extent of Play refers, that that 9 would be the way that the exercise would be performed and 10 that was agreed to?
11 A. (Callendrello) It was agreed to.
12 But keep.in mind, the Extent of Play changed right 13 up until the day of the exercise as activities were able or 14 unable to be demonstrated or a facility was available or not 15 available.
16 So it was constantly evolving and changing in its 17 detail. Overall the Extent'of Play was agreed to in those 18 discussions that Mr. Gram has described in the various 19 meetings.
20 Q But it's fair to say, New Hampshire Yankee did not 21 unilaterally have the authority to change the Extent of Play 22 from what FEMA and NRC had approved as necessary for a 23 qualifying exercise; correct?
24 Any change had to be signed off on by FEMA and NRC 25 as well; correct?
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REBUTTAL NO. 23 PANEL - CROSS 22911 1 A (Callendrello) Can we have just one moment?
O 2 (Witnesses conferring.)
3 THE WITNESS: (Gram) FEMA bought off on any 4 changes to the Extent of Play, especially the ones that 5 happened the last several weeks before the exercise.
6 ,
I don't believe the NRC was involved in the
. 7 details for the offsite exercise, of changes in Extent of 8 Play other than the overall review and acceptance of the 9 total scenario 10 JUDGE SMITH: Do I understand you to answer that 11 FEMA accepted any changes?
12 No?
13 THE WITNESS: (Gram) No, sir.
14 JUDGE SMITH: It was FEMA that did?
15 THE WITNESS: (Gram) Yes.
16 JUDGE SMITH: Mr. Brock is having a little bit 17 more difficulty than he should be having in establishing 18 whether there was any give-and-take nature to the process.
19 THE WITNESS: (Gram) Maybe I can use one example 20 that would be helpful.
21 My hesitancy is to the word " negotiate,". It 22 wasn't a process where New Hampshire Yankee or the State of 23 New Hampshire said, we're going to exercise 20 buses, and 24 FEMA would come back and say, no, you're going to exercise 25 50 buses.
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REBUTTAL NO. 23 PANEL - CROSS 22912 l
1 It was more of a team working effort to arrive at 2 the right number.
3 BY MR. BROCK: '
4 Q And is it fair to say each member of the team had 5 to say, "okay", before, in fact, that particular Extent of 6 Play would be approved for use?
7 A (Gram) Yes. .
8 For that particular Extent of Play that applied to 9 that team member. All right.
10 There is Extent of Play for each state and for the 11 ORO, also. And the State of New Hampshire wasn't involved 12 in Extent of Play for Massachusetts.
13 Q But FEMA was involved in all three states; 14 correct?
15 A (Gram) Yes.
16 Q And they had to approve all three states in the 17 Extent of Play?
18 A (Gram) Yes.
19 20 21 22 .
23 24 25 Heritage Reporting Corporation (202) 628-4888 ,
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t REBUTTAL NO. 23 PANEL - CROSS 22913 1 Q And, Mr. Callendrello, I believe you used the' 2 term, the Extent of Play was essentially what was required 3 to be demonstrated,'at least for certain objectives, so the 4 evaluators could determine whether or not'the objective had 5 been met.
6 , Is that a fair summary o'f what you.said?
.- 7 A (Callendrello) Again, there is not a one-to-one 8 correlation between an Extent of Play activity and an 9 objective. It is the extent to which that activity that 10 needed to be demonstrated so that the evaluators could make 11 a judgment as to the workability of the plan.
,L2
- Q All right. So that whatever was set forth as 13 requirements in the Extent of Play was necessary for the
> 14 evaluator to make that judgment. Those things had to be
\ 15 demonstrated in the exercise.
16 A (Callendrello) That was -- yes, that's correct.
17 That's why FEMA was involved in the development of the 18 Extent of Play.
~
19 Q And, Mr. Gram, am I correct then, your position-is 20 that except for the inadequacies which FEMA identified in 21 its report, you feel that the Extent of Play was 22 satisfactorily demonstrated in the exercise 1ast summer?
23 That is your position, correct?
24 JUDdE COLE: I don't understand that question, Mr.
25 Brock.
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l REBUTTAL NO. 23 PANEL - CROSS 22914 I-1 MR. BROCK: All right, let me withdraw it and try 2 it again.
3 BY MR. BROCK:
4 Q It is your position, Mr. Gram, that with the 5 exception of the inadequacies which FEMA has identified in 6 its report, that the Extent of Play as set forth in the 7 scenario document was carried out in accordance with the ,
8 requirements that had been agreed on?
l l 9 (Witnesses confer.)
10 A (Gram) I have a problem with your question, 11 because you are using Extent of Play in a scenario in 12 relation to a FEMA report. The FEMA report had to do with 13 findings on performance.
14 I can't mentally make the connection, so I 15 disagree with your question.
16 Q All right. I will withdraw that question then.
'17 Let me ask you one other point.
18 Yesterday, you indicated that at some time during 19 the development of the scenario that the issue of Intervenor 20 observer guidelines would need to be addressed.
21 Now, did in fact a policy develop as to how
- 22 Intervenor observers would be permitted to observe?
23 A (Callendrello) I may be the better person to 24 answer that, because it fell into what I'll call a licensing 25 area.
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REBUTTAL NO. 23 PANEL - CROSS 22915 1 There were negotiations between Intervenor
!, 2 attorneys and Ropes & Gray as to what rules the Intervenor 3 observers were to follow. So I had a request for Mr. Gram 4 or somebody in Mr. Gram's organization, and we consulted 5 with Ropes & Gray, who in turn had met with Intervenor 6 attorneys.
. 7 So there were, I believe there was an Intervenor 8 observer agreement that was developed and then signed off by 9 the various parties.
10 Q All right. Is it fair to say that agreement was 11 proposed by Ropes & Gray and was not subject to alteration 12 or amendment or Interveners?
13 A (Callendrello) I haven't looked at it for quite 14 some time.
7-~
i )
As/ 15 Q Let me ask you this.
16 Is it fair to say that counsel for the Applicants 17 were availed opportunities to observe that were not afforded 18 to Intervenor observers?
19 A (Callendrello) I know that we had Ropes & Gray 20 attorneys at variouc facilities. I'm trying to think what 21 limitations we put on them.
22 I don't think we put very much in the way of 23 limitations on them ether than the general limitations we 24 put on all observers, and that is, not to interfere in the 25 play of the exercise, not to prompt any players, not to do rT
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REBUTTAL NO. 23 PANEL - CROSS 22916 1 anything that would reveal any of the scenario aspects.
2 Q Is it your testimony that the same restrictions 3 applied to Applicants' counsel and applied to Intervenor 4 observers? Applicant observers and Intervenor observers; is 5 that your testimony? ,
6 A (Ca11endre11o) Well, in that regard, I believe 7 our own attorneys had more freedom to move about the 8 facilities with the limitations I described.
9 I was only at the emergency operation center for 10 the ORO, and was able to observe Ropes & Gray attorneys 11 there. I didn't firsthand observe them at the other 12 facilities, so I don't know whether they had any more 13 freedom there than the Intervenor observers, although I 14 suspect they would have.
15 Q That's your suspicion at least, right, Mr.
16 Callendrello?
17 A (Callendrello) Yes, it is.
18 Q Mr. Gram, and just so I am clear, you were not an 19 exercise player, correct?
20 A (Gram) Yes, that's correct.
21 Q And it was not your role to personally demonstrate 22 any of the required activities set forth in the Extent of .
23 Play document; it was not your role?
24 A (Gram) No.
25 Q And that was not the role of you either, is that Heritage Reporting Corporation (202) 628-4888 i
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REBUTTAL NO. 23 PANEL - CROSS 22917 1 correct, Mr.'Callendrello?
n( 2 3
A- (Callendrello) last question?
I'm sorry, could you repeat that 4 Q Yes.
1 5 It was not your role during the exercise to i .
6 actually participate in demonstrating the various events
. 7 described in the Extent of Play document; that was not your 8 role?
9 You were not a player?
10 A (Callendrello) No, I was not a player. But as a 11 controller, you are responsible for potentially initiating 12 events that would be in accordance with the Extent of Play.
13 For example, I was a controller on the public 14 notification coordinator. So where the Extent of Play O- 15 indicated that there should not be an actual broadcast of 16 the transmitted EBS message, that would be my responsibility 17 to make sure events occurred in accordance with that Extent 18 of Play.
~19 Q Thank you.
20 Mr. Gram, just one other point. You have before 21 you Mass AG Exhibit 103, and that is attached to a letter 22 signed by you or minutes of an April 20, 1988 meeting notes?
23 Do you have that in front of you?
24 A (Gram) No, I don't have the cover letter.
25 (Document proffered to the witnesses.)
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REBUTTAL NO. 23 PANEL - CROSS 22918 1 BY MR. BROCK:
2 Q Do you have that now in front of you, Mr. Gram?
3 A (Callendrello) Just so I'm clear, 102 is the 4 April 12th cover letter?
5 Q Correct. And the 103 is the May 6th cover letter. ~
6 A (Callendrello) Okay, we have those now.
7 A (Gram) Yes. -
8 Q Ar.C ngain, Mr. Gram, I'm not going to belabor the 9 events descrised in the document, but have you had an 10 opportunity to review that and satisfy yourself that that 11 accurately reflects the events to the best that you recall 12 concerning that meeting?
13 A (Gram) Yes, I have.
14 Q Okay, fine.
15 MR. BROCK: Your Honor, at this time we would 16 offer Mass 102 and 103.
17 JUDGE SMITH: Objections?
18 MR. LEWALD: There is no objection.
19 JUDGE SMITH: Attorney General Exhibits 102 and 20 103 are received.
21 22 .
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REBUTTAL NO. 23 PANEL -CROSS "22919 f
- 1 (The Edocuments referred. to,
'2- having been previously marke,d
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'3: , for identification as 4 Massachusetts. Attorney -
5 General's Exhibit Nos. 102 6 and 103 were received in-
..~ -7 evidence.)
8 BY MR. BROCK:
'9 -Q Mr. Gram, I would like for you to turn now to page 10 6 of your testimony, 'and the first full paragraph in that 11 testimony.where, and I'm quoting, "The extent to which 12 objectives would measure portions of the plan should be 13 demonstrated is a function of these specific. characteristics
~ 14 of the plan and the site."
- 15. And there you are referring, . sir, to the 16 demonstration to be done during the exercise, correct?
17 A (Callendrello) I think I may be better able to 18 answer that.
19 Q Well, Mr. Callendrello, I would like Mr. Gram to 20 -answer this. He has identified himself as being most 21 involved in the scenario development.
22 A (Callendrello) I just tried to be helpful.
l 23 As I indicated, my role in the scenario was to 24 ensure that it met the requirements not only of being a full 25 participation exercise for the observation, but also the Heritage Reporting Corporation (202) 628-4888 f
i i REBUTTAL NO. 23 PANEL - CROSS 22920 l
1 licensing considerations and litigation considerations of l 2 the exercise. So this falls, I think at least partially, in 3 that latter category.
4 Q Thank you. -
5 And, Mr. Gram, the question is directed to you. ,
6 You do see that sentence to which I have referred, 7 sir? -
8 A (Gram) I was trying to find it. Could you --
9 Q Yes. It's the second sentence in the first full 10 paragraph beginning, "The extent to which".
11 A (Gram) -Yes, sir.
12 Q All right. And again, where it's referring to the 13 extent to which the events or the objectives are major 14 portions of the plan should be demonstrated, again you are 15 referring to it should be demonstrated during the exercise, 16 correct?
17 A (Gram) Yes, sir.
18 Q All right, now, where you indicate there the, 19 extent of demonstration is a function of specific 20 characteristics of the plan and the site, am I correct, sir, 21 or tell me if I'm correct that for Seabrook Station and the 22 particular problems or concerns involving the beach ,
23 population and the road system there, those site-specific 24 factors, did they play a role, in your opinion, in the 25 development of the Extent of Play and as to what events were 1
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REBUTTAL NO. 23 PANEL - CROSS 22921 1 required to be demonstrated? .
G 2 A (Gram) Could you please repeat that question?
) 4 3 Q Yes, sir. 1 l
4 I'm asking you if the site-specific factors at j 5 Seabrook, concerning the large beach population and the 6 roadway system, were those factors which influenced how the
- 7 Extent of Play was developed.
8 A (Gram) No.
9 Q So, in your opinion, thos~e factors did not have 10 any influence on Extent of Play?
11 A (Gram) No.
12 Q Would you tell me, were the deficiencies and 13 inadequacies from the 1986 Seabrook exercise, were,those f- s 14 factors which influenced the Extent of Play as it was ,
i
\w- 15 desaloped for the 1988 exercise?
16 A (Gram) I was not involved in the scenario !
17 development, the Extent of Play development or the 1986 18 exercise, so I couldn't one way or the other.
19 0 Well, as I understood your prior testimony, you .
1 20 were certainly involved in the development of the scenario
~
21 and Extent of Play for the 1988 exercise; is that correct?
22 A (Gram) Yes.
23 Q And what I'm asking you is if, during the course 24 of your involvement in that process, did it come to your I 25 attention that the inadequacies or deficiencies which had (202) 628-4888
1 1
REBUTTAL NO. 23 PANEL - CROSS 22922 l
1 occurred in the 1986 exercise, was that used in some way or 2 did it influence in some way how the Extent of Play was 3 developed for 1988?
4 A (Gram) Yes, it did.
5 FEMA identified the -- I believe it was 106 ,
6 issues, either deficiencies or ARCAs from the 1986 exercise 7 that they wanted assurance that demonstration of those items -
8 in the '88 exercise were built into the scenario and Extent j
)
9 of Play.
10 Q So that was at least one requirement of the j 11 exercise, to demonstrate that those inadequacies had been 12 satisfactorily addressed?
13 A (Gram) Yes. I believe Mr. Donovan has already l 14 testified to that, and he also testified that they were 15 adequately shown or demonstrated. '
16 JUDGE SMITH: Let's revisit that a second.
17 Could I have that last answer back, I mean the one i 18 before the last one?
19 (Accordingly, the record was read back by 20 the court reporter.)
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23 ,
a 24 l i
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REBUTTAL NO. 23 PANEL - CROSS 22923 )
1 JUDGE SMITH: They wanted assurance that they 2 would have the opportunity to demonstrate it?
. 3 THE WITNESS: (Gram) Tney wanted assurance that I 4 they would have the opportunity to evaluate it, so it had to 5 be built into the exercise scenario.
6 JUDGE SMITH: Oh, this is from FEMA's point?
- 7 THE WITNESS: (Gram) This is from FEMA's point of 8 view. Yes.
9 JUDGE SMITH: All right.
10 I'm sorry. I just had it backwards.
11 BY MR. BROCK:
12 Q Now, Mr. Gram, can you tell me the fact that the 13 Commonwealth of Massachusetts and certain local governments g-- 14 declined to participate, would you agree that there were
-' 15 certain functions that were not or could not be tested as a 16 result of that nonparticipation?
17 As compared, for example, to the State of New 18 Hampshire that was participating? ,
19 A (Gram) I would agree -- it's a double question.
l 20 I would agree that there were functions that could not be l 21 tested with the states and the local communities.
22 But I would not agree that they were not tested.
23 They were tested through control cell setups.
24 Q Well, let's just take a piece at a time.
25 In terms of the lack of testing for state and
(~
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REBUTTAL NO. 23 PANEL - CROSS 22924' 1 local governments, it was not done, regardless of whatever 2 testing may have occurred on the point.
3 Could you summarize those kinds of functions that 4 were not tested- as a result of that nonparticipation?
5 MR. LEWALD: I'm going to object to the breadth of 6 that question. And whether or not the witness understands 7 it. He is asked to talk about the scope of something that -
8 is rather undefined.
9 I'm just concerned, again, whether the question is 10 meaningful enough for the witness to give a responsive 11 answer.
12 MR. BROCK: Well, Your Honor, as I understood, the 13 prior answer was meaningful enough for the witness to say 14 that, yes, he agreed certain functions were not tested as a 15 result of nonparticipation by state and local governments.
16 And I am simply trying to have him identify more 17 specifically what those functions were. It's simply a 18 follow-up from the prior answer. ,
i 19 MR. LEMALD: If that's the question, I don't have 20 any problem with that.
~
21 JUDGE SMITH: I think you better rephrase the 22 whole question because we' re not sure that's the way the ,
23 question actually was.
24 MR. BROCK: Fine, Your Honor, let me try again.
25 l (202) 628-4888 q
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REBUTTAL NO. 23 PANEL - CROSS 22925 1 BY MR. BROCK:
/~~ .
LI\,
l 2 Q Mr. Gram, did you agree with me or do you, agree 3 with me that as a result of the nonparticipation by the 4 Commonwealth and certain local governments that certain 5 functions, emergency functions were not tested, which 6 otherwise --
- 7 JUDGE McCOLLOM: Why don't you stop right there 8 and let him answer that question.
9 MR. BROCK: I'm sorry?
10 JUDGE McCOLLOM: Why don't you stop right there I
11 and let him answer that question.
12 MR. BROCK: Fine, Your Honor.
l 13 JUDGE McCOLLOM: You tend to stack them together, g' 14 I think, is what's making them confusing.
('
15 MR. BROCK: I apologize for that.
16 THE WITNESS: (Gram) No , I do not agree --
17 JUDGE McCOLLOM: Okay.
18 THE WITNESS: (Gram) -- that they were not 19 tested.
20 BY MR. BROCK:
21 Q Do you agree they were not tested by the state and l 22 local government by definition?
23 A (Gram) Well, my problem is with your use of 24 terminology.
25 The testing or the evaluation was done by FEMA.
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REBUTTAL NO. 23 PANEL - CROSS 22926 1 The participation is done by state and local governments.
2 Q All right. .
3 Well, with that clarification, were there 4 functions that were not tested by the state and local 5 governments as a result of their nonparticipation? ,
6 A (Gram) That's the same question.
(Callendrello) 7 A Mr. Brock, maybe some of the 8 confusion -- the exercise was an exercise of various plans, 9 one of which was the SPMC. And the functions of the SPMC 10 were all tested.
11 Q Mr. Callendrello --
12 A (Callendrello) There may be specific receivers of 13 information or people on the other end of a phone call --
14 Q Mr. Callendrello, I would like to cut --
15 MR. BROCK: -- there is no question pending, Your 16 Honor. I don't understand.
17 I'm trying to explore with Mr. Gram a point, Your 18 Honor. And I understand that Mr. Callendrello may have 19 something to say on this.
20 JUDGE SMITH: Well, there was a question pending 21 and Mr. Callendrello thought he could clarify it and give 22 you information. But if you don't want him to. .
23 I don't think the question is consistent with the
'24 previous answer.
25 What is the question?
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REBUTTAL NO. 23 PANEL - CROSS 22927 1_ MR. BROCK: The question is, Your Honor, were
,n
( 2 there certain emergency functions --
L 3 JUDGE SMITH: Yes.
4 MR. BROCK: -- that were not demonstrated in the 5 1988 exercise.
6 JUDGE SMITH: Right. We had that.
- 7 MR. BROCK: Okay.
8 By state and local governments. -
9 JUDGE SMITH: Not demonstrated by them, yes.
10 MR. BROCK: Because of their nonparticipation.
11 JUDGE SMITH: Yes.
12 MR. BROCK: All right.
13 JUDGE SMITH: Then the next question?
g-- 14 MR. BROCK: And I'm asking the witness, will he i
\ 15 agree with me that that is the case. And if he will agree 16 with me, then the next question is for him to identify what 17 those functions are that were not tested by the state and 18- local -- emergency functions that were not tested.
19 JUDGE SMITH: You mean demonstrated by them.
20 JUDGE COLE: You used the word " tested" in there.
21 " Tested" by the state.
22 MR. BROCK: I'm sorry.
23 JUDGE COLE: And it's demonstrated by them.
24 MR. BROCK: I'm sorry if there is confusion 25 between " tested" and " demonstrated."
l
'\ Heritage Reporting Corporation (202) 628-4888 L - . - - - - --- ---- ------- - - - _ _ _ _ - - _ _ _ _ _ _
REBUTTAL NO. 23 PANEL - CROSS 22928 1 What I'm saying is that state and. lc cal government ;
2 personnel did not actually perform the various functions.
3 And I'm sorry if that was -- 1 j
. i 4 JUDGE McCOLLOM: If you just ask that.
5 THE WITNESS: (Callendrello) ,
I'm not sure what i
6 the question is. !
7 I don't agree that there were functions that were -
8 not performed as part of the exercise.
I 9 Keep in mind, as I said earlier, the exercise was j 10 an exercise of the SPMC. There may have been somebody who 11 would normally be on the other end of a telephone call who 12 was not there because of nonparticipation. Say, a local 13 emergency operation center.
14 JUDGE SMITH: I think his question is very, very 15 simple and fundamental. He is making a record that certain 16 state and local governments did not participate.
17 It's that simple, isn't it?
18 MR. BROCK:
That's correct, Your Honor.
19 THE WITNESS: (Callendrello) I agree with that 20 characterization.
21 But again, talking about functions implies that we 22 weren't able to demonstrate the function. ,
23 JUDGE SMITH: In this instance he is using exactly 24 by the state and local governments, not the f' unctions to be 25 performed by them in an emergency. But he is just very Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22928 1 What I'm saying is that state and local government 2 personnel did not actually perform the various functions.
3 And I'm sorry if that was -- !
4 JUDGE McCOLLOM: If you just ask that.
5 THE WITNESS: (Callendrello),
I'm not sure what _
6 the question is.
7 I don't agree that there were functions that were -
8 not performed as part of the exercise. -
9 Keep in mind, as I said earlier, the exercise was 10 an exercise of the SPMC. There may have been somebody who 11 would normally be on the other end of a telephone call who 12 was not there because of nonparticipation. Say, a local 13 emergency operation center.
14 JUDGE SMITH: I think his question is very, very 15 simple and fundamental. He is making a record that certain 16 state and local governments did not participate.
17 It's that simple, isn't it?
18 MR. BROCK: That's correct, Your Honor.
19 THE WITNESS: (Callendrello) I agree with that 20 characterization.
21 But again, talking about functions implies that we 22 weren't able to demonstrate the function. ,
23 JUDGE SMITH: In this instance he is using exactly 24 by the state and local governments, not the f' unctions to be 25 performed by them in an emergency. But he is just very (202) 628-4888 i
REBUTTAL NO. 23 PANEL - CROSS 22929 1 directly going to a fundamental part of the'whole
,cx (v ) 2 litigation, that they didn't do it just as the contentions 3 allege.
4 It's not mysterious, we all know that they didn't.
5 THE WITNESS: (Callendrello) I agree they didn't 6 participate in the exercise.
l
- 7 JUDGE COLE: It wasn't a trick question. l 8 MR. BROCK:~ That's right, it was not.
9 (Laughter) 10 MR. BROCK: I thought it was actually quite 11 straightforward.
12 BY MR. BROCK:
13 Q I appreciate you at least agreeing they did not 14 participate in the exercise, Mr. Callendrello. I guess we 7-mg i /
N/ 15 are making some progress here.
16 What I'm trying to identify are the specific 17 functions that the state and local governments, emergency 18 functions that were not performed by the state and local 19 governments as a result of their nonparticipation?
20 'I'm not asking you whether somebody else performed 21 it for them, okay. If you could identify those?
22 A (Callendrello) I can start and I think Mr. Gram 23 can add some that I missed.
24 The local and state governments, or at least the 25 local EOCs were not involved in the initial notification
(' ')~
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REBUTTAL NO. 23 PANEL - CROSS 22930 I 1 process to -- -
2 Q ,You're talking Massachusetts?
i 3 A (Callendrello) Yes. That's correct. i l
4 - These answers deal solely with Massachusetts. j 5 The Massachusetts civil defense agency did not ,
, i 6 send a representative to the emergency operations facility i
7 or the emergency operation center as they indicated they '
8 would.
9 The Department of Public Health did not deploy 10 their nuclear incident advisory team as the commonwealth has 11 indicated they would.
12 The actual local facilities, local EOCs were not 13 available for our local liaisons to go to, as they would 14 normally be expected to go to in the plan.
15 Q Was there a change in transportation staging areas 16 as a result of nonparticipation?
17 MR. LEMALD: Has he finished?
18 MR. BROCK: I'm sorry. I thought ho had.
19 MR. LEWALD: I don't think he had.
20 THE WITNESS: (Callendrello) There's many 21 functions that are involved in the SPMC. I was trying to 22 tick down the ones that involve state and local .
23 participation.
24 The communication with the command structure in 25 the Commonwealth: the governor and the governor's Heritage Reporting Corporation I (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22931 1 representative did not occur. We were forced to do that
' i
( 2 through.a FEMA control' cell. , (
i 3 BY MR. BROCK:
4 Q Could you just explain a little more specifically 5 that communication process that did not occur that you have 6 just alluded to?-
7 8 -
9 10 11 12 ,
13 14 O 15 16 17 18 19 20 21 22 l l 23 i 24 .
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REBUTTAL NO. 23 PANEL - CROSS 22932 1 A , (Callendrello) Per the implementing procedures 2 of SPMC, the offsite response' director is directed to make 3 contact with the person in the Commonwealth who is in charge 4 of the Commonwealth's response to the emergency, and to I 5 disc.uss a number of things. .
6 One is to brief that individual on the status of 7 the emergency, the status of the offsite response -
8 organization and to inform them of any protective action 9 recommendations that may be coming out of the ORO, and also 10 to begin the process of requesting legal authority to 11 implement ORO activities.
12 O I don't want to stop you. Do you have more to add 13 to that list, Mr. Callendrello?
14 A (Callendrello) It's a long procedure. In fact, 15 there is a procedure that's dedicated to the determination 16 of the government's resp usa But these, in a nutshell, are 17 the activities that are carried out.
18 Q Fine. And then maybe I could just move you on to 19 what you were detailing or itemizing, a list of functions 20 not demonstrated by state and local governments.
21 Do you have more to add to that?
22 (Witnesses confer. ) ,
23 A (Callendrello) Mr. Gram points out, and rightly 24 so, that the school districts did not participate in the 25 exercise. -
Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22933 .
1 I'm sure there are other areas. I just can't l /m l ) 2 think of them off the top of my head.
l \_,/
3 Q Mr. Gram, do you have further to add to that? Do 4 you recall any at this time?
5 A (Gram) No. As Mr. Callendrello has already said, 6 all of these interface points are detailed out in the SPMC
. 7 at various implementing procedures for various individuals 8 to make contact points.
9 So if you do a search through the actual plan and 10 implementing procedures, you can find all of the individual 11 contact points that involve local officials, local entities 12 such as schools, or state officials.
13 Q And it's fair to say that in the event that state
,-s 14- and local governments were cooperating, that those lines of i \
(m.;/ 15 communication and those points of communication would be 16 quite numerous; is that correct?
17 I mean that's a primary part of the plan assuming 18 that state and local governments decided to participate, 19 correct?
20 MR. LEWALD: Your Honor, he puts one question to 21 them and then he will add an addendum to it.
22 MR. BROCK: I don't believe it was unclear.
23 MR. LEWALD: I don't know whether we have two 1
24 questions, or one double question, or one qualified 25 question. 4 7 ~s
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1 REBUTTAL NO. 23 PANEL - CROSS . 22934 1 BY MR. BROCK:
2 Q Mr. Callendrello, if you understand the question, 3 you may answer it. If not, I'll rephrase it.
4 A (Callendrello) Could you please rephrase it? l f
5 Q Yes. .
~
6 I mean, is it fair to say that the points of' 7 contact contemplated for state and local governments with -
8 New Hampshire Yankee are extensive and pervade the SPMC?
9 A (Callendrello) I'm not quite sure what you mean 10 by " extensive".
11 I think that there are certainly sufficient points 12 of contact to enable a coordinated response between the ORO 13 and state and local governments. And we provide those 14 coordination links in accordance with the guidance that's in 15 NUREG-0654, Supplement 1.
16 Q And those were not demonstrated in this case 17 because of the nonparticipation, correct?
18 A (C n11endrello) No, that's not true. They were 19 demonstrated. They were demonstrated through the use of a 20 control cell.
~
21 Q All right. They were not demonstrated by the 22 state and local governments during the exercise. .
23 A (Callendrello) That's right. State and local .
1 24 governments did not participate in Massachusetts, again.
25 Q Mr. Gram, you would agree that the emergency Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23, PANEL - CROSS' 22935 1- preparedness would not be'as complete or effective absent jO) 2- state and local participation as with it? j 3 Mr. Callendrello, I apologize, but if Mr. Gram 4 can't answer the question, he can state, and then you can 5- pass the mike. I am directing it to him. ,
6 A (Gram) I believe the Commission has already 7 stated in the regulation they adopted in November of 1987, 8 the detailed -- the utility developing its own offsite 9 response plan in the event of a nonparticipating state and-10 local communities, that the participation of the state and-11 local communities is more desirable and would probably 12 result in a better plan.
13 Q In a better. emergency response, correct?
,= i 14 A (Gram) Not necessarily.
15' Q In your opinion, nonparticipation -- that ORO 16 could respond as effectively without state and local
~
17 participation as with it. That's your testimony?
18 A (Gram) Well, I believe I have some pride of 19 authorship involved. But I would say I leave that judgment 20 to FEMA.
~'
- 21. Q So you would --
22 A (Callendrello) I have a problem with that
, 23 characterization of either state participation or not state 24 participation.
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REBUTTAL NO. 23 PANEL - CROSS 22936 l i l
1 in that we have contact with state government, and they j l I 2 either grant us legal authority or tell us that they don't 3 need our assistance. But there is always some state 4 participation in terms of the overall decisionmaking.
5 Q All right, now, if we could move on to page 13 of l
6 your testimony, I juot want to touch briefly on a couple 7 points. .
8 There it's indicated that, I guess this is the 9 conclusion of the first paragraph on 13, federal guidance 10 was used to establish the basic framework of the functional 11 demonstration.
12 And, Mr. Gram, do I understand from that that, for 13 example, FEMA guidance memoranda were used to develop Extent 14 of Play?
15 (Witnesses review document.)
16 A (Gram) In som'e cases FEMA guidance memoranda 17 would have been involved in some of the Extent of Play, yes.
18 Q And so is it fair to say that to the extent FEMA 19 provided guidance on a particular objective, that the 20 scenario document and Extent of Play was drafted to conform 21 to that guidance?
22 A (Gram) No, not necessarily. In some instances, l
23 we did more than what the FEMA guidance outlined was 24 required.
25 Q Okay. But it's your testimony you did at least as (202) 628-4888 i
REBUTTAL NO. '23 PANEL - CROSS 22937-1 much as what the guidance, FEMA guidance required,
-( 2 applicable FEMA guidance required?
3 A (Gram) Yes.
4 Q Now referring just at the bottom of page 13, onto 5 14, there is a list there which you are identifying as 6 components generally applicable to most plan elements, and 7 there is decisionmaking conveyance of the decision, et 8 cetera, as outlined on 13 and 14.
9 Do I understand that the exercise was intended to 10 demonstrate generally, or at least for -- well, that the 11 exercise was intended to demonstrate those capabilities?
12 A (Callendrello) Yes, that was the intent subject 13 to the constraints that exist.
/ 14 Q All right, so it's fair to say decisionmaking
\
15 . process and the communication of that decision down the 16 line, that was an important aspect to be demonstrated in the 17 exercise?
18 A (Callendrello) That is one aspect. The
- e. s important -- the weight of any particular aspect is 20 dependent upon the specific objective or specific function 21 that's being demonstrated. But it is certainly one aspect
. 22 of the process.
23 Q Well, you certainly believe protective action 24 recommendations, that process is a primary component in the
- 25. overall emergency response, Mr. Callendrello.
Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23. PANEL - CROSS 22938 1 You would agree with that, correct?
2 A (Callendrello) Yes, I do. But there is 3 decisionmaking associated with other functions that may not 4 be of the same weight as protective action decisionmaking.
l 5 Q All right, now, referring to page 18 of the ]
I 6 testimony under " Influences on Scope".
7 Now, there is reference in there, in terms of , i I
8 considering whether demonstrations of activities would or 9 would not be required was influenced, in patt, as to whether 10 or not they were normal day-to-day functions.
11 Is that correct, Mr. Gram, is that what that 12 testimony means?
13 A (Gram) Yes, that's correct.
i 14 Q You also elsewhere in your testimony make 15 reference to the full participation regulations of the 9, 16 Commission.
17 Do you recall that in your testimony?
18 A (Gram) Yes, sir.
19 A (Callendrello) I believe that's on page 4.
1 20 A (Gram) Yes.
l l 21 Q All right. Well, my point is, Mr. Gram, isn't it 4 l 22 fair to say that full participation by emergency personnel 23 and resources is required to be demonstrated to the extent 24 reasonably achievable whetue-. or not that particular 25 function is a normal day-to-day function?
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REBUTTAL MC. 23 PANEL - CROSS 22939 1 A (Gram) Well, I believe you have taken out of s
2 context a little bit the actual quote of the regulations.
[ }
3 Q All right, can --
4 A (Gram) We can cite it if you would like.
5 Q Let me just stop you there.
6 Is it your testimony that the fact that a 7 particular function or resource provider carries out a 8 function in his normal day-to-day affairs, that that somehow !
9 excuses him or makes it less likely that he should be 10 required to demonstrate that capability in an exercise?
11 MR. FLYNN: Objection. Argumentative.
12 JUDGE SMITH: No, they are free to answer any way 13 they want to.
,,- 14 Overruled.
~
I
( )\ 15 BY MR. BROCK:
16 Q Mr. Gram?
17 A (Callencrello) Well, I would agree with that, 18 because as our test.lmony on the top of page 4 says, " Full 19 participation includes testing the major observable portions 20 of the onsite and offsite emergency plans, and mobilization 21 of state, local and licensee personnel and other resources 22 in sufficient numbers to verify the capability to respond to 23 the accident scenario."
24 So in the instance you have cited, those people j 25 have the capability to respond to the accident scenario as s
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REBUTTAL NO. 23 PANEL - CROSS 22940 1 part of their normal day-to-day function. There is no need 2 to demonstrate that portion, and you would still have full 3 participation.
4 Q Even if they didn't actually demonstrate that in 5 the exercise? .
6 A (Callendrello) Yes, I think that's what I just 7 said.
8 Q Let me just follow up on that, Mr. Callendrello.
9 So it's your testimony then that it is not 10 important for a person or an organization to perform its 11 normal function in the context of an overall emergency 12 response. I mean that somehow because it is a normal day-13 to-day function, that it would be necessary to demonstrate 14 in an exercise?
15 A (Callendrello) Function as we are using it 16 involves many components as we laid out in the earlier paru
~
17 of the testimony. I think it was page 16 or 17.
18 There are some components that are unique to a 19 radiological emergency. The example comes to mind of 20 traffic control. The establishment of a traffic control 21 strategy in accordance with the radiological plan is unique 22 to a radiological emergency. .
23 The actual establishment of a traffic control 24 point by a state trooper is not unique to a radiological 25 emergency, and therefore need not be demonstrated to the Heritage Reporting Corporation 9, (202) 628-4888
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. ' REBUTTAL NO. 23' PANEL - CROSS 22941 ce <
.1 same. extent that.you would demonstrate that type of function y--
lt i2 :-- demonstrate the other function I mentioned, the
\
3 decisionmaking function. ,
4 Q- Do-you have the Extent of Play document in' front ,
5 of you?. I believe that's a portion of Applicants' 61.
6 A .( Callendrello) I've got one. The copy-I have got.
.- 7 is the copy that was the attachment to Mr. Donovan's filing.
8 Q And I would also like, for purposes of this line, 9 if you could turn to page 50 of your testimony?
10 Do you have that?
11 A (Callendrello) Yes, I do.
12 Q Now Objective 19 that's quoted at the top there, 13 which refers to actions for school children within the plume 14 EPZ, you would agree that Objective 19 encompasses a
\s / '15 demonstration for day care centers as well as for public and 16 private schools?
17 And the-reference would be to FEMA Guidance EV-2,
.18 I believe at page 1.
19 JUDGE COLE: That's MAG Exhibit 91 you are talking 20 about now?
21- MR. BROCK: That is correct, Your Honor. I' m 22 sorry, I did not. identify that.
23 BY MR. BROCK:
24 Q Do you have that Mr. Callendrello?
o25 A (Callendrello) Guidance Memorandum EV-27 Corporation
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REBUTTAL NO. 23 PANEL - CROSS 22942 1 Yes, I do have that.
2 Q All right.
l 3 And it's correct, is it not, the second sentence 4 on page 1 of that guidance, MAG 91, it talks about the 5 guidance as applicable to state and local government 6 officials and administrators of public and private schools, 7 including licensed and government-supported pre-schools and -
8 day care centers for developing emergency response plans.
9 And my question to you is: Would you agree that 10 in demonstrating Objective 19 that part of what would be 11 focused on would be day care centers as well as public and 12 private schools?
13 A (Callendrello) I know we considered that to be 14 part of Objective 19. I know Mr. Donovan testified that the 15 exercise evsluation methodology superceded the exercise 16 provisions of EV-2.
~
17 And in looking at the exercise evaluation 18 methodology, I don't see any mention of day care centers.
19 Q Well, I'm not sure that that exactly was Mr.
20 Donovan's testimony.
21 So you, at least for purposes of this exercise, 22 Mr. Callendrello, in 1988, it was your understanding ,
23 Objective 19 encompassed both public and private schools and 24 day care centers?
25 A (Callendrello) Yes. If you look at the two (202) 628-4888
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REBUTTAL NO. 23. PANEL - CROSS. 22943 l' Extents of Play, 3.3.1 and 3.3.2, the first one has to do l' O I
2 with schools. The second one has to do with day care l% centers, and they were both identified as the Extent of Play 3
4 or "an" Extent of Play for Objective 19.
[' .
5 I *..
8 9
10 11 12 13 14 I
15 16 17 18 19 20
- 21 22 23 24 25
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REBUTTAL NO. 23 PANEL - CROSS 22944 1 Q All right.
? And at page 50 of your testimony you set forth 3 various components associated with demonstrating the 4 objective; correct?
5 A (Ca11endre11o) Yes. .
6 Q And those are outlined including: notification of 7 school administrative personnel of an emergency situation; -
8 correct?
9 A (Callendrello) Yes.
10 Q Communication and coordination between State of 11 New Hampshire emergency response organization and school 12 administrative. personnel?
13 A (Ca11endre11o) Yes.
14 Q And provision of transportation resources?
15 A (Callendrello) Yes.
16 Q And as I understand further on in that page where 17 the reference is: "The process of notification and 18 communication and coordination," and then just skipping a 19 little bit it says, "was to be conducted according to the 20 provisions of the NHRERP."
21 That was the intent in performing the exercise; i
22 correct? ,
j i
23 A (Ca11endre11o) Yes, that's correct. j l
24 Q You would agree that the basic structure of the f i
25 NHRERP with respect to schools, essentially, for public f 4
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REBUTTAL NO. 23 PANEL - CROSS 22945 1 schools that the PAR process runs from the governments to
(. ,.
2 the superintendents office who in turn contacts the various
.(v) 3 school principals of the schools in his jurisdiction.
4 Is that correct?
5 A (Callendrello) Yes.
6 That's correct for the school administrative unit
, 7 schools.
8 Q Those are the public schools?
9 A (Callendrello) Yes.
10 Q All right.
11 And for the private schools, they don't have the 12 superintendent, so that the government communication runs
-13 directly to the individual private or day care facilities;
-s 14 is that correct?
k_I 15 A (Callendrello) I think Mr. Baer may know that 16 arrangement better than I do.
17 Q Fine.
18 Mr. Baer, do you have something?
19 Would you agree with that characterization?
20 A (Baer) Would you repeat that, please.
=
21 Q Yes.
22 The process of protective action recommendations 23 -- we are focusing on private schools in New Hampshire --
24 that the information runs from the governments to the 25 individual school -- to the individual private schools or 7~ ,
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REBUTTAL NO. 23 PANEL - CROSS 22946 ]
j 1 day care centers?
2 A (Baer) In the case of private schools, as I 3 recall the plan, the local emergency operation centers and 4 the governmental official who has that responsibility makes 5 direct contact with the private schools in their community.
6 In the case of day care centers there is a 7 provision in the state plan for representatives from the ,
8 Division of Public Health Services who are responsible for l 9 licensing the day care centers to be represented at the
! 10 state EOC to make those contacts.
11 At least to provide initial notification to day 12 care centers as they have the most current list.
13 Q All right.
14 So at least from one government representative or 15 the other, though, the information runs directly to the 16 individual private school facility or day care facility?
17 *A (Baer) That's correct.
18 Q And then it's the responsibility, is it not, of
{ 19 the principal or the day care administrator then to oversee 20 the implementation of the protective actions.
21 Is that a fair characterization?
l 22 A (Baer) I'm not sure what you mean by " oversee?"
23 Q Oversee in the sense of direct teachers or staff 24 to implement the PARA, whether it's sheltering or evacuation 25 for the studentst l Heritage Reporting Corporation
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. REBUTTAL NO. 23 PANEL - CROSS 22947 1 A (Baer) In the case of a private school or a day in care center if such a recommendation is provided to them by
-t 2 b 3 the local officials and local EOC, it would be the f-l 4 responsibility of the administrator to follow through with 5 that.
,1 I 6 Q Is it fair to say that the superintendent, in the l
)
7 case of the public schools, or the principal or 8 administrator, in the case of the private school or day care 9 center, have the final call on what protective action will 10 be implemented for the particular school?
I 11 A (Baer) I don't agree with that.
12 Q You do not believe -- what's wrong with that 13 - statement?
14 A (Baer) Would you repeat the statement again.
I 15 Q Yes.
16 The question is: I believe you've indicated that 17 in the case of public schools that protective action 18 recommendation runs from the government to the 19 superintendent who in turn conveys that.
20 But my question is: in terms of who has l21 responsibility for making the decision as to which 22 protective action will be implemented, is it fair _to say 23 that in the case of public schools, that's the 24' superintendent; and in the case of private schools or day 25 care centers, it's the principal or administrator?
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1 REBUTTAL NO. 23 PANEL - CROSS 22948 1 A (Baer) I think the responsibility for making a 2 recommendation resides, in the case of New Hampshire, with 3 the State of New Hampshire officials to provide that 4 recommendation to the schools or to the individual ;
l 5 facilities. And it is assumed that they will carry that ;
6 recommendation out.
7 Q I'm not sure -- .
l 8 A (Baer) That's the best recommendation that they 9 have.
10 Q I'm not sure that's quite responsive.
11 Is it your testimony that the state makes the call 12 or is it the superintendent who has independent 13 responsibility who makes that call under the plan?
14 A (Baer) As I understand the plan, and the 15 assumption of the plan is that a protective action 16 recommendation is made by the state. And the responsibility 17 to see that the protective action recommendation is 18 implemented resides with the administrator.
19 JUDGE SMITH: The administrator of what?
20 THE WITNESS: (Baer) The administrator of a 21 private school -- )
l 22 JUDGE SMITH: Private school. ,
23 THE WITNESS: (Baer) -- or day care center or 24 with the superintendent of schools.
25 JUDGE SMITH: Or superintendent of public schools.
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REBUTTAL NO. 23 PANEL - CROSS 22949 z
1 THE WITNESS: (Baer) Yes.
} 2 BY MR. BROCK:
V .
3 Q All right.
4 Well, I just want to refer to page 53 of your 5 testimony, tan first full paragraph. It states: "The 6 administrative structure, therefore, provides that a 7 decision regarding school protective actions is made by the 8 superintendent or facility administrator who in turn directs !
9 its implementation."
10 Now that's your testimony, isn't it, that was 11 prefiled? )
12 That is your testimony as it was prefiled, 13 correct, Mr. Baer?
,. , 14 A (Baer) That's what the testimony says.
[ \
l (_,/ 15 As I said, the recommendation is made by the state 16 officials. It's assumed that the school officials will 17 follow that recommendation.
18 Q And I understand that your indication there is the 19 assumption they will follow through. But as you've 20 indicated, the administrative structure, on page 53 of your 21 testimony, the superintendent or facility administrator 22 makes the decision and directs its implementation; correct?
23 A (Baer) That's what the testimony says.
24 Yes, sir.
I 25 Q Now, am I correct that no member of the panel was I l
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l REBUTTAL NO. 23 PANEL - CROSS 22950 I 1 personally involved in the procedures or processes for ]
2 implementing protective actions for New Hampshire students 3 during the exercise?
4 A (Baer) Would you repeat that, please.
5 Q Yes.
6 I'll start with you, Mr. Baer.
7 It's fair to say you were not personally involved ,
8 in the protective action recommendation process for New 9 Hampshire schools that you've just described, either that 10 decision-making process or that communication -- PAR 11 communication process to the schools; you were not involved 12 in that?
13 A (Baer) I was not involved directly in that 14 decision that was made during the exercise for the schools.
15 No, sir.
16 Q And that's also true for you, Mr. Callendrello, 17 - correct?
18 A (Callendrello) No, I was not present at that 19 time, although I have looked at the documentation that was 20 generated during that process.
21 Q Fine. -
22 And, Mr. Gram, you were not, during the exercise 23 at least, involved in that process?
24 A (Gram) No, sir, i
25 Q Mr. Gram, is it fair to say that no employee of j 1
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REBUTTAL NO. 23 PANEL - CROSS 22951 1 the Applicants contacted any New Hampshire school officials 2 during the exercise as part of the demonstration of )
3 protective action process for.schori children?
4 A- (Gram) I believe you have to clarify your
- 5. question a little bit.
6 Are you referring strictly to New Hampshire now?
I
. 7 Q That is correct? 1 8 A (Gram) I can't answer that question.
9 Q You're not aware of any Applicant employee or 10 contractor who actually contacted school officials during 11 the exercise for New Hampshire schools? You're not aware of 12 any?
13 A (Callendrello) I'm not aware of any, although I
- 14 know we were asked in an interrogatory by either SAPL or the (m, 15 Town of Hampton regarding any New Hampshire Yankes employees 16 or contractors who were involved in emergency response 17 related to schools, and I think we indicated at that time 18 that Mr. Sinclair was located at the EOC as an advisor to 19 the office of emergency management. I 20 And I just offhand don't recall his exact role and 21 whether that involved contact with schools. But I know we 22 did provide that information in-our response to an 23 interrogatory.
24 Q Well, Mr. Sinclair did not personally contact any 25 New Hampshire schools or school officials during the s i Heritage Reporting Corporation
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(202) 628-4888 e
P REBUTTAL NO. 23 PANEL - CROSS 22952 1 exercise; isn't that correct?
2 A (Callendrello) I don't recall without looking at 3 the interrogatory response what his role was.
4 Q Let me show you a document, Mr. Callendrello.
5 (Document proffered to all parties.)
6 BY MR. BROCK:
7 Q All right. ,
8 Mr. Callendrello, you have in front of you a 9 document entitled " Applicants voluntary responses to TOH's 10 informal discovery request," correct?
11 A (Callendrello) Yes, I do.
12 Q And that's dated January 9, 19897 13 A (Callendrello) Yes, it is.
14 The version I've got, I've got the complete 15 version. The one you have given me apparently doesn't 16 include all the responses. -
17 Q That is correct.
18 It includes responses to interrogatories 1, 2, and 19 5; correct?
20 A (Callendrello) Yes. That's correct.
21 Q Let me, since this document has been distributed, 22 let me just confirm.
23 It is accurate, is it not, that no New Hampshire 24 teachers participated in the exercise to demonstrate -
25 protective actions for school children?
(202) 628-4888 i
REBUTTAL NO. 23 PANEL - CROSS 22953 1 A (Callendrello) Yes, that's correct.
[ \ 2 We know of no teachers that participated.
(s / .
Now I believe that the second interrogatory has to 3 Q 4 do with the participation of school officials other than 5 teachers; correct?
- 6. A (Ca11endre11o) Yes. ;
. 7 It asks for the identification of administrators 8 and school personnel other than teachers who performed or 9 participated in protective actions for school children 10 during the exercise.
11 Q All right.
12 .Let me just -- if you would just hold that for a 13 second.
14 At page 51 of your testimony, in the middle part 7-~
N_, 15 of the page where it begins: " Communications and 16 coordination were demonstrated with at least one 17 administrative representative of each of the five SAUs."
18 Do you see that sentence in your testimony at page 19 51?
20 A (Callendrello) Yes, I do.
21 Q Is it fair to say that the administrative 22 representatives that you referred to in that testimony are 23 the ones identified in Applicants' response to interrogatory 24 No. 2 that we have just referred to?
25 A (Callendrello) With one correction. We provided
[
Heritage Reporting Corporation
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REBUTTAL NO. 23 PANEL - CROSS 22954 1 a supplemental response to those interrogatories that 2 indicated that we had not correctly identified the 3 representative of the Phillips Exeter Academy who had been 4 contacted.
5 Q All right.
6 So the statement in interrogatory 2 the response 7 of interrogatory 2 of January 9, 1989, where it says: .
8 " George Tucker, Dean of Faculty of Phillips Exeter Academy 9 participated in the exercise."
10 That was not a correct statement, correct?
11 A (Callendrello) That's right.
12 A (Baer) I believe we corrected that statement.
13 A (Callendrello) It was corrected.
14 A (Baer) Earlier.
15 Q Yes. I agree with you, Mr. Baer, it was 16 corrected. s 17 Is it fair to say that when that correctio'n was 18 provided that Applicants are now of the view that no 19 administrative representative of the Phillips Exeter Academy l 20 participa*ed in the exercise?
1 21 A (Callendrello) No, that's not what our answer is. '
j i
22 We said we don't know the identities.
23 Q No. I'm asking.-- well, Mr. Baer, you just 24 referred to a supplemental discovery response where you 25 corrected the error regarding Mr. Tucker's participation?
(202) 628-4888
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REBUTTAL NO. 23 PANEL - CROSS 22955 1- A (Baer) Yes.
,/ h g 2 Q And what was your response? l 1, /
3 What was that correction then? l 4 A (Baer) I would have to see a copy of it.
5 A (Callendrello) I've got that response. ;
l 6 Q What was the response?
j 7 A (Callendrello) The entire response was:
8 " Applicants' response to interrogatory No. 2 of January 9, 9 1989 incorrectly identified George Tucker, Dean of Faculty, l 10 Phillips Exeter Academy as the school official who was l 11 contacted during the June 28th, 29th, 1988 exercise.
12 Further review of player and controller information 1
'13 indicates that Mr. Tucker was not contacted. The telephone j_ 14 call was made to Phillips Exeter Academy by Town of Exeter
_,)-15 officials. No administrative representative of Phillips 16 Exeter. Academy could be contacted."
17 Q All right.
18 So it's fair to say that no administrative 19 representative of Phillips Exeter Academy participated in 20 the exercise; correct? 4
- 21 A (Callendrello) That's what that says, yes.
22 Q Mr. Callendrello, do you know -- and this is not a 23 quiz -- but Phillips Exeter Academy has an enrollment of 24 approximately 1,000 students.
25 Would you agree with that or do you know? t (m
< \m /
i Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22956 1 A (Ca11endre11o) I don't know.
\
2 3
6 4 l 5
6 5 7 ,
8 9
g 10 11 12 13 14 15 16 17 18 19 20 21 22 ,
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23 24 25 (202) 628-4888
l REBUTTAL NO. 23 PANEL - CROSS 22957 1 Q Again, focusing on the language in your testimony
,y 2 on page 51 concerning communication and coordination (x.J )
3 demonstrated with at least one administrative representati.ve 4 of each of the five SAUs.
5 And just so it's clear, there are five school 6 administrative units within the New Hampshire EPZ, Mr.
. 7 Callendrello?
8 A (Callendrello) Yes.
9 Q And one superintendent for each of the five SAUs?
10 A (Callendrello) That's correct. .
11 Q And they have jurisdiction over all of the public 12 schools within the EPZ?
13 A (Callendrello) Yes.
s 14 Q And is it fair to say that, with respect to at
/ %
k_- 15 least two of the five SAUs, that the extent of communication 16 and coordination during the exercise consisted of a phone 17 call to a secretary, if yod know?
]
18 A (Callendrello) I don't know. I think Mr. Baer I
19 has that information. j l
20 A (Baer) If you could repeat that? l 21 Q Yes.
22 My question is: Isn't it correct that the extent 23 of the communication and coordinati'on with respect to at 24 least two of the school administrative units, and I would be l 25 referring to SAU 16, Mr. William Clancey is the l
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[ Heritage Reporting Corporation I i \--} (202) 628-4888 l
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REBUTTAL NO. 23 PANEL - CROSS 22958 l
1 superintendent, and the Sanborn school administrative unit 2 where Mr. Mark Joyce is the superintendent, that with i 3 respect to those two SAUs the extent of coordination and 4 communication in the exercise was one phone call from the 5 emergency response organization to a secretary?
6 A (Baer) I don't know that for a fact. I know that 7 the Department of Education in the emergency operation ,
l 8 center at Concord made a phone call to each of the school l
l 9 administrative units.
1 10 Who they made actual contact with, I don't know.
11 Q Well, is it fair to say, Mr. Baer, that -- assume 12 that it was only a secretary, not a member of the 13 administrative staff who was contacted.
14 Would it be fair to say that, in your opinion, 15 that would not be an adequate demonstration of communication 16 and coordination with the particular SAU, if that was the 17 extent of the contact?
18 A (Callendrello) I don't agree with that. That's 19 fully within the Extent of Play which anticipated that, or 20 provided for the fact that there may be no contact with the 21 school administrative unit.
22 And in that case, the default values would be used ,
23 just as they would be used in actual emergency should the 24 state be unable to reach a school administrative unit.
I 25 Q So in your opinion, Mr. Callendrello, even (202) 628-4888 1
REBUTTAL NO. 23 PANEL - CROSS 23959 1 assuming that the extent of contact with two of the five 2 SAUs was one phone call to a secretary, that's an adequate 3 demonstration of the Objective 19 for those two SAUs?
4 A (Callendrello) That's adequate end is anticipated 5 in the Extent of Play. ,
6 Q Mr. Baer, let me go back to you.
. 7 ,
Is it fair to say that the extent of centact for 8 all five SAUs consisted of one phone call from, or consisted 9 of one maybe a couple of phone calls from state emergency j 10 operations, but requested no action that the SAUs take, did 11 not request that they provide any information, but simply 12 that somebody picked up the phone, and that was the extent 13 of the contact? ,
14 Would you agree with that?
15 MR. LEWALD: Objection. This is such another one 16 of these tortured questions that I submit that the form of 17 it is so bad, it really -- you don't know what part of it 18 you are answering.
19 HR. BROCK: I thought it ought to be clear to the 20 witness, Your Honor. If it's not, I'll rephrase it.
21 JUDGE SMITH: It's almost a rhetorical question.
22 MR. BROCK: Fine, Your Honor. Let me withdraw it 23 and try it again.
24 BY NR. BROCK:
25 Q Mr. Baer, to your knowledge, was the extent of Heritage. Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22960 1 communication and coordination with each of the five SAUs in 2 New Hampshire, that that consisted only of a telephone 3 contact, but no information -- well, consisted only of f I
4 telephone contact by New Hampshire emergency response?
5 JUDGE SMITH: Now here you are referring to the ,
6 method of contact.
7 MR. BROCK: That's correct, Your Honor. -
8 JUDGE SMITH: And this is by telephone.
9 MR. BROCK: That's correct.
10 THE WITNESS: (Baer) As we responded to that same 11 inquiry in interrogatories, to our knowledge at least one l 12 telephone contact was made from the Department of Education 13 representative in the EOC to the school administrative 14 units.
15 BY MR. BROCK:
16 0 You know of no other communication or coordination 17 with r.ay of the five SAUs other than the calls you have just 18 referrad to, correct?'
19 A (Baer) I personally know of no others.
20 Q Mr. Callendrello, let me ask you. l 21 A (Callendrello) Just to --
22 O Yes. .
23 A (Ca11endre11o) -- make sure that's a complete i
24 . answer, and I am verifying it with Mr. Baer.
25 I believe that the Portsmouth school l i
Beritage Rep ?r' .ing Corporation (202) 628-4888 i
REBUTTAL NO. 23 PANEL - CROSS 22961 1 administrative unit also had a representative at the local
[~ 2 emergency operation center.
\
3 Q There was a representative, Mr. Callendrello.
4 Assume that's true.
5 To your knowledge, that representative did not do 6 anything during the exercise, did he, other than observe?
7 A (Callendrello) I don't know what his role was.
8 Q Let me ask you this, Mr. Callendrello.
9 If the extent of the contact, or if the extent of 10 the communication and coordination was simply that somebody 11 picked up the phone at the other end at each of the five 12 SAUs, in your opinion'would that be sufficient to 13 demonstrate Objective 197 14 JUDGE SMIT 9: Just simply picked up the phone?
15 MR. BROCK: That's correct.
16 .THE WITNESS: (Callendrello) As I think I
' 17 answered before, yes, I would find that adequate, because 18 there-are other components and there are other compensating 19 mechanisms that take into account the fact that for whatever 20 reason it may not be possible to reach that school
- 21 administrative unit, and that's the concept of default 22 values and default planning.
23 BY MR. BROCK:
24 Q And to your knowledge, that is all that occurred 25 in this case, correct?
O, 3
Heritage Reporting Corporation (202) 628-4888
RE3UTTAL NO. 23 PANEL - CROSS 22962 1 (Pause . )
2 JUDGE SMITH: Just picking up the phone?
3 MR. BROCK: That is correct.
4 JUDGE SMITH: That's hard to believe. You know, 5 pick up the phone.
6 MR. BROCK: I agree with you, Your Honor, but I'm 7 asking -- I believe th,at is basically all that occurred and .
8 I am asking this witness if, to his knowledge, that is in 9 fact what did happen. i 10 JUDGE MCCOLLOM: You mean no one said " hello"?
11 MR. BROCK: Well, they may have said " hello", but 12 I don't think that ---
13 JUDGE MCCOLLOM: Well, that's where I'm hanging.
14 I'm waiting. You just pick up the phone and lay it back 15 down is what I'm reading you to ask right there. '
16 MS. CHAN: Does Mr. Brock have some factual basis 17 for this? And if he could just tell the witnesses, maybe we 18 can get directly to it.
19 MR. BROCK: Ms. Chan, I'm asking these witnesses 20 who are here testifying based on their understanding of what i
21 occurred in this exercise, what is their knowledge with i 1
22 respect to the testing of Objective 19 for New Hampshire l 23 schools. And my question Mr. Callendrello is, you have made 24 reference in the interrogatory concerning the phone calls to l
25 each of the SAUs. i
. i s
Heritage Reporting (202) 628-4888 Corporation Ol 1
REBUTTAL NO. 23 PANFr. - CROSS 22963 1 BY MR. BROCK:
. ,m 2 Q My question to you is: First of all, are you
\
.3 aware of anything regarding the content of those phone 4 communications?
5 A (Callendrello) No, ,I'm not aware of the content.
6 Q Assuming that there was no content to those 7 communications other than the fact that somebody at the SAU 8 picked up the phone and acknowledged that this is the SAU 9 and hung up.
10 Now, in your opinion, would that be sufficient 11 communication and coordination to meet Objective 19?
12 JUDGE SMITH: Well wait. His answer already 13 assumed not even answering the phone, I mean subsumed not 14 even answering the phone early on. And then, of course, the
(, ,/ 15 more you sweeten up the actual response, the less relevant 16 your questioning is.
17 MR. BROCK: All right.
18- JUDGE SMITH: Well, am I right?
19 I don't want to stop'you. But didn't he already 20 state that even if the phone hadn't been answered the
- 21 default plan would go into play?
22 MR. BROCK: . He did, Your Honor, and I'm asking if, i 23 in this case, during this exercise, whether in fact the 24 extent of the phone communication as I've described it was 25 all that occurred.
[h
\_ /
Heritage Reporting Corporation (202) 628-4888
I REBUTTAL NO. 23 PANEL - CROSS 22964 1 He has stated, as I understood his testimony, Your 2 Honor, that he has said as a general proposition that given 3 the way the default values operate if you can't reach a 4 superintendent, you use default values. And what I was 5 trying to focus in on is his knowledge in this case what was 6 the extent of the communication and coordination that's 7 referred to on page 51 of his testimony with respect to each ,
8 of the five SAUs.
9 If I have heard the witnesses correctly, they have 10 identified that at least one phone call was made to each 11 SAU. But as I understand it, Mr. Cal.lendrello has no 12 knowledge of what the content of those conversations where.
13 BY MR. BROCK:
14 Q Correct? i 15 A (Callendrello) That's correct.
16 Q Mr. Callendrello, is it also fair to say that only 17 two schools in the New. Hampshire EPZ were actually contacted 18 during this exercise?
19 And I'm referring to the last page of the 20 Applicants' voluntary responses that we have been referring 21 to. -
22 (Pause . )
I 23 BY MR. BROCK: )
24 Q Do you have that page?
25 It's the second page of a letter from Geoffrey (202) 628-4888 ;
l REBUTTAL NO. 23 PANEL - CROSS. 22965 1 1 - Cook of Ropes & Gray tx) me, dated March 20, 19897 2- Do you have that?
-(O)
- 3 A (Callendrello) I've got that letter. If you J
4 would just give me a moment, I'll take a look at it.
5 Q Fine. ,
6 (Witness reviews document.)
-7 , A (Callendrello) I've had a chance to read it now.
8 Q And to your knowledge, that's an accurate 9 statement, correct?
10 A (Callendrello) Yes, to my knowledge, except that 11 one is an elementary school. Country Kids, and I would have 12 to verify this with Mr. Bear, I believe is a pre-school or 13 day care center.
fe ~s 14 Q Fine. I appreciate that clarification.
'-- 15 So that it's fair to say that only one school in 16 the New Hampshire EPZ and one pre-school or day care center 17 was actually contacted during the exercise, correct?.
18- A (Baer) That la not correct. Those two schools 19 reflect those that we know about because we had some record 20 to support it.
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21 The Extent of Play included a provision that the 22 local emergency operation centers and the officials 23 responsible for ccntacting schools and day care centers 24 would in fact attempt to make those calls and contact those 25 people and those facilities.
1
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' ( Heritage Reporting Corporation (202) 628-4888 l
REBUTTAL NO. 23 PANEL - CROSS 22966 1 To the extent.that they did that, we don't know, 2 because we have no record. These are the only instances in 3 which we have some concrete record to rely on.
4 Q All right, Mr. Baer, if I understand your 5 testimony then, these are the only two instances of which 6 you know about sitting there, correct?
7 A (Baer) That's correct. That's how we answered .
8 the interrogatory.
9 I might also add, in terms of what we know about ,
1 10 the communication made by the Department of Education from 11 the EOC, as an example would be a record that we provided, I 12 believe, also to you. That was a record of a message that 13 was conveyed within the emergency operation center i'n 14 Concord by the Department of Education representative there, 15 who indicated after an evacuation, a five mile evacuation 16 had been recommended, that the schools in the zone will be 17 ready to evacuate and the host community schools are 18 standing by.
19 The message further says that schools in the five 20 mile zone evacuate and the hoct schools are awaiting 21 arrival. EPZ schools notified and host, assuming host 22 schools as well.
23 That's the only record we have as far as 24 understanding what would have been the content of any of 25 those communications.
(202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22967 1 Q Mr. Baer, that does not change the answer,.does-m il } 2 it, that the only two schools of which you can testify now 3 were actually contacted are the two schools identified on 4 the last page of the exhibit we just referred. to, correct?
'5 A (Baer) The two that we know about from our 6 records. .
- 7 MR. FLYNN: Excuse me. Was that of.fered or 8 identified as an exhibit?
9 MR. BROCK: I'm about to do that right now.
10 I would like it marked and I would also offer it, 11 Your Honor. I believe this would be Mass AG 104?
12 JUDGE SMITH: .That's right.
13 JUDGE COLE: That's all of Attachment 6, Mr.
. 14 Brock?
k- s 15 MR. BROCK: That is correct.
16 JUDGE SMITH: Any objections?
17 bm. LEWALD: No object'on, i Your Honor. We would 18 like to reserve to look at the rest of the document as to 19 whether or not we want to introduce the remaining questiohs 20 and answers that were excised apparently to form this 21 particular exhibit.
22 (The document referred to was 23 marked for identification as 24 Mass AG Exhibit No. 104 and 25 received in evidence.) ;
\-- (202) 628-4888 1
l
REBUTTAL NO. 23 PANEL - CROSS 22968 1
JUDGE SMITH: Do you want to take your afternoon 2 break now?
3 MR. BROCK: Yes, Your Honor.
4 JUDGE SMITH: Fifteen minutes.
5 (Whereupc.2, a recess was taken.)
6 7 -
8 9
10 11 12 13 14 15 16 17 18 19 20 21
- 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22969
. . 1 JUDGE SMITH: Mr. Brock? ,
~
4 ) 2 MR. BROCK: Thank you, Your Honor.
3 BY MR. BROCK:
4 Mr. Callendrello, you have made reference a couple !
Q 5 of times to the Extent of Play for objective 19. And.I'm 6 looking at page -- it's the second page of that. This is
- - 7 from Applicants' 61, the Extent of Play document, at page 4
8 3.3-5.
9 Do you have that?
10 A (Callendrello) Yes, I do.
11 Again, there are several Extents of Play that deal' 12 with objective 19.
13 Q I appreciate that.
14 A (Callendrello) You've got the one that deals with O 15 the school contacts.
16 Q And the section number is 3.3.1; correct?
17 A (Callendrello) Correct.
18 Q- This is page 2 of that section?
19 A (Callendrello) Yes.
20 Q Okay. 1
~
21 Now, about halfway down the page there is 22 entitled, " Methodology description, sequence of events,"
23 correct?
24 A (Callendrello) Yes.
25 Q All right.
Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22970 1 And it defines various events for the exercise; 2 correct?
3 A (Callendrello) Yes, it does.
4 Q Let's go to number four and it says:
5 " Participating, school superintendents will contact the .
6 appropriate schools in their districts per their 7 procedures." -
8 To you knowledge, that did not occur in this 9 exercise, correct, Mr. Callendrello?
10 A (Callendrello) Based on the exercise 11 documentation that I've been able to review, I don't know 12 one -- I haven't seen any contacts of school superintendents j 13 to the local schools. I don't know if any of them occurred.
14 Q Mr. Baer, is it fair to say that to your 15 knowledge, number four which I just read, did not occur? !
16 The school superintendents did not contact the appropriate 17 schools in their districts per their procedures?
18 A (Baer) I have no firsthand knowledge of that.
19 I have seen no documentation.
20 Q Mr. Callendrello, let's move on to number five on 21 the same page.
22 It says: "A list of school census data information ,
23 provided by school superintendents will be given a scenario 24 data live to the IFO and local EOCs."
25 Did I read that correctly?
(202) 628-4888
9 REBUTTAL NO. 23 PANEL - CROSS 22971.
1 A (Callendrello) Yes, you did.
.g.
'l 2 Q ThatLis what it says.
3 Am I correct that the purpose of obtaining that
'4 census data was to compute transportation requirements for 5 the particular schools?
6 A- (Ca11endre11o) That's right.
. 7 Q And.is it also correct that number five, as it is 8 stated there, did not occur in the exercise for New 9 Hampshire schools?
10' A (Callendrello) No , it did occur.
11 It was given - given that scenario data means 12- given by controllers. So the controllers would inject that 13- data into the exercise play to ensure that the plan was 14 tested to its maximum. So it would put in the census as to
\ 15' default values of census.
16 Q Well, Mr. Callendrello, isn't it correct that 17 number five says that: "The census data will be provided by 18 school superintendents, not controllers." Correct?
19 That's what it says?
20 A (Callendrello) That's what it says.
21 What I'm saying is that the census information was 22 provided by controllers.
~
I 23 Q So it was not provided by the school 24 superinten' dents; correct?
25 A (Callendrello) That's right. :
0 Heritage Reporting Corporation i- (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22972 1 Q And therefore, the school census data was not 2 provided live as indicated in number five; correct?
3 That did not occur?
4 A (Callendrello) Well, that's correct.
5 Schools were not in session. So that the school .
6 census information that would have been obtained would have
~
7 been no students. And that would have not been very much of 8 a test of the transportation system. )
9 Q It's fair to say, is it not, though, that there j 10 were certain, at least, day care or preschool that were open .
11 during the exercise; correct, Mr. Callendrello?
12 A (Callendrello) That's reasonable.
13 I don't know for certain which ones or how many.
14 But that makes sense that they would be open. They are not 15 seasonal facilities or have a school unit. Preschools do, 16 but not day care centers.
17 Q Let me just move on to, I guess it would be l l
18 section No. 3.3.2, this is regarding day care center 19 contacts, page 2 of that where it states at number two.
20 Are you with me? This is on page 3.3-77 21 A (Callendrello) Yes, I have that.
22 Q Number two it says under methodology description, -
23 sequence of events: " Local EOC school rep contacts and DPHS 24 day care notification personnel will contact affected day 25 care centers."
Heritage Reporting Corporation (202) 628-4888 9i 1
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i REBUTTAL NO. 23 PANEL - CROSS 22973 j 1 And except for the one day care center you !
7,); 2 previously alluded, to Country Kids, that did not occur in n-3 the. exercise; correct? To your knowledge?
4 A (Callendrello) To my knowledge.
5 But Mr. Baer may be able to amplify on that.
6 A (Baer) That was an activity that was expected to 7 occur at the state EOC on the part of the personnel from the 8 Division Public Health Services.
9 And it was expected to be accomplished by the 10 responsible officials in the local EOCs, most of whom are 11 known.as transportation coordinators.
12 And in the case of towns that did not participate 13 in the exercise by local liaison officers and the New rx 14 Hampshire incident field office, that activity would have l \
\~ / 15 occurred simply by their following their procedures.
16 We don't have direct -- a record that that 17 occurred. But by following their procedures those people in 18 those various facilities would have done that. Would have 19 attempted to make the contact. Whether they could make a 20 contact or not, or complete a contact or not, I don't know.
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21 Q All right.
22 But your testimony, at least, the procedure 23 provided they were to attempt to contact?
24 A (Baer) The Extent of Play provided they were to 25 attempt to contact by following their procedure.
/ Heritage Reporting Corporation (202) 628-4888 l
l L_________________
l RESUTTAL NO. 23 PANEL - CROSS 22974 1 Q This was to the day care centers?
2 A (Baer) That's correct.
3 Q And this would have been done by the New Hampshire 4 emergency management personnel. At least that's what the i 5 procedure provided for?- .
6 A (Baer) That's correct.
7 Q You have no knowledge that occurred; correct?
8 You don't know that occurred?
9 That is simply the procedures?
10 A (Baer) I would say that we don't have an exercise 11 record that confirms that it occurred. But we expected they 12 followed their procedure.
13 0 Well, it's fair to say that at the various local 14 EOCs there were controllers who obse.tved the events that 15 occurred there; correct?
16 A (Baer) That's correct.
17 Q There was a record made with respect to the events 18 that occurred in the various local EOCs; correct?
19 A (Baer) That's correct.
20 And there were many activities in each of those 21 facilities. And in most cases only one or two controllers.
22 So the events they could observe and note would have been .
23 necessarily limited. I 24 A (Gram) If I just might add something. j l
25 Q Yes.
Heritage Reporting Corporation (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22975 1 A (Gram) As you mentioned, Mr. Brock, every one of p-i, j 2 the local EOCs had a FEMA evaluator. As part of the v
3 anticipated Extent of Play, even though we don't have any 4 documentation and from sitting in these hearings I 5 understand the documentation of the FEMA evaluators no 6 longer exist, I can't bring myself to believe that 7 evaluators in 11 different EOCs all did not see the same 8 thing happen and all did not document it.
9 So the fact that there are no issues relating to 10 contacting schools or day care centers brings me to believe 11 that it actually did happen.
12 Q Is it fair to say, Mr. Gram, that the significant 13 events would have been noted by, for example, through New
./N 14 Hampshire Yankee controllers, who were observing at the l
l (A 15 various local EOCs, would have been noted in their logs; 16 correct?
17 A (Gram) It depends on what was going on at the 18 time and what the controllers were involved in.
19 Q All right.
20 MR. BROCK: I would like to pass out a document.
21 This would be for identification Mass AG 105.
22 (Document proffered to all parties.)
23 24 25 (O,) Heritage Reporting Corporation (202) 628-4888
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REBUTTAL NO. 23 PANEL - CROSS 22976 )
1 (The document referred l 2 to was marked for 3 identification as 4 Mass AG 105.)
5 BY MR. BROCK: ,
6 Q Mr. Callendrello, you have in front of you what 7 has been marked for identification as Mass AG 105. That is 8 the State of New Hampshire's voluntary responses to Town of 9 Hampton's informal discovery request concerning the June 10 1988 joint exercise?
11 A (Callendrello) Yes, I do. 1 12 Q All right.
13 That's dated January 30, 1989; correct?
14 A (Callendrello) Yes, it is.
15 Q And the last two pages of that exhibit that is a 16 letter from Assistant Attorney General Jeff Huntington to me 17 dated March 16, 1989; correct?
18 A (Callendrello) Yes, it is.
19 Q All right.
20 Would you just take a minute to -- first of all, 9
21 have you ever seen that letter?
22 A (Callendrello) I believe I have. ,
23 I had a full set of interrogatories with me.
l 24 Unfortunately, I can't lay my hands on them.
25 I don't know whether that was attached to the Heritage Reporting Corporation ,
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. .I REBUTTAL NO. 23 PANEL - CROSS 22977 1 interrogatory responses or not in its original form.
2 I have seen the letter, though.
(}
L' 3 Q All right.
4 Let me just point out, Mr. Callendrello, I don't 5 believe that was the case. They were separate submittals.
l 6 The interrogatories are dated January 30, 1989.
- 7 The letter is March 16, 1989.
i 8 MR. FLYNN: Excuse me.
9 Mr. Brock, is this an excerpt from the answers or l l
10 is it the entire set of answers? j 11 MR. BROCK: It is an excerpt, Mr. Flynn. It is ;
12 answers 1, 2, and 5 of the State of New Hampshire's 13 voluntary responses on the interrogatories.
7-~g 14 MR. FLYNN: Thank you. '
\
V) 15 BY MR4 BROCK:
16 Q Have you had a chance to review that, Mt. 1 17 Callendrello?
18 A (Ca11endre11o) Just the letter?
19 Q Yes?
20 A (Ca11endre11o) Yes, I have.
21 Q And is it fair to say that that letter references 22 the fact that the State of New Hampshire incorporated 23 Applicants' responses to certain discovery? l 24 Page 1 of the letter, Mr. Callendrello?
25 A (Ca11endre11o) I'm looking at that.
(})
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0 REBUTTAL NO. 23 PANEL - CROSS 22978 1 The letter says: "In our response to interrogatory ;
2' No. 2-A," and I was just checking to see if that 2-A in the 3 January 30th. I 4 Q That's fine. Yes.
5 A (Callendrello) "The state incorporated Attachment l 1
i 6 1 of the Applicants' voluntary response to TOH's informal
]
7 discovery request." -
8 I do see that. Yes.
9 Q And it goes on to describe that attachment.
10 Is it correct that the attachment that is 11 described there is the one that is included in Mass AG 104, 12 which is the Applicants' voluntary responses of January 9 13 that were just admitted into evidence?
14 Do you have Mass AG 104?
15 A (Callendrello) No, unfortunately, I don't.
16 Q Let me give you another copy.
17 (Document proffered to witness. )
18 BY MR. BROCK:
19 Q The one I'm alluding to is, I think, the -- well, 20 it's attached to the Applicants' discovery responses.
21 Do you see that as part of Mass AG 104?
22 It's a two page document? ,
23 A (Callendrello) Yes, I do.
2 '4 Q Mr. Callendrello, and I believe the reference of 25 Mr. Huntington in this March 16 letter incorporating that (202) 628-4888 i
1 REBUTTAL NO. 23 PANEL - CROSS 22979 1 response, is it fair to say that Mr. Huntington agrees with j) 2 the Applicants that the extent of telephone contact during ,
3 the exercise with schools was limited to -- well, let me l 4 say, it agrees with Applicants with one exception. j J
. 5 I believe if you -- Applicants have identified two 6 schools that were actually contacted during the exercise. I 7 And Mr. Huntington is indicating that a third school, East 8 Kingston Elementary was actually contacted.
9 MR. FLYNN: I object. I'm having trouble with an 10 effort of getting a letter from another party, a party not 11 represented by the panel here, into evidence by reading it 12 to the panel.
13 MR. BROCK: Well, Your Honor, I agree it's a bit
,/N 14 of an awkward posture. The State of New Hampshire is a
\'"
15 party in this proceeding, Your Honor.
16 There has been suggestion by this panel that, at 17 least according to procedures, certain additional phone 18 contacts were made.
19 I believe the second page of Mr.- Huntington's 20 letter, who after all is representing the State of New 21 Hampshire and who was actually involved in implementing this
. 22 exercise and demonstrating these exercise objectives, 23 clearly states only three schools were con'tacted.
24 And it's offered to impeach this panel on that 25 point. And I don't believe there is any issue as to rh \
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l REBUTTAL NO. 23 PANEL - CROSS 22980 1 authenticity.
2 I do believe Mr. Hampe is. I don't know if he is 3 here representing the State of New Hampshire.
4 We would be offering it to impeach the panel on 5 that point, Your Honor. ,
6 MR. LEWALD: Your Honor, the significant letter 7 speaks for itself. If Mr. Brock wants to argue that the 4 4 8 letter impeaches the witness, I suppose he could do that at 9 a later time.
10 JUDGE EMITH: Well, it doesn't speak for itself if 11 Mr. Flynn's objection -- ;
i 12 MR. FLYNN: No. I think what Mr. Brock has said 13 clarifies it. If it is offered as an admission of a party, 14 I'm hard pressed to think of an objection. And indeed, I 1
15 don't have any objection if it is offered on that basis. '
16 What troubled me was the selective offering of a 17 statement, of a party other than that represented by the I 18 panel. !
19 JUDGE SMITH: So you don't have any objection?
20 MR. FLYNN: No.
21 I have an objection to the reading of excerpts 22 from the letter. I do not object -- ,
23 JUDGE SMITH: So you join Mr. Lewald in the 24 objection that --
25 MR. FLYNN: That the letter speaks for itself.
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. l l REBUTTAL NO. 23 PANEL - CROSS 22981.
l 1 ,
JUDGE-SMITH: Wait a minute. I
( 2; , They still have a. chance to have the witness have 3f his. memory refreshed or comment upon the letter, if they 4 wish' . If he wishes.to try that.
-5 MR. FLYNN: I' understand.
6 JUDGE SMITH: But as far as the letter itself is-
- 7 . concerned, it hasn't been offered yet. But it certainly is 8 an appropriate basis for cross-examination.
9 I-assume it will be offered.
'10 11 12 13
/ 14 V) 15 16 17 18 19 20 21
... 22 23 l 24
, 25 )
Heritage Reporting Corporation (202) 628-4888 1
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REBUTTAL NO. 23 PANEL - CROSS 22982 1 MR. BROCK: That is correct, Your Honor. ,
2 We, in fact, would offer it at this time, f
1 3 JUDGE SMITH: And there are no objections?
4 MR. LEWALD: No objection, Your Honor.
5 JUDGE SMITH: Attorney General Exhibit 105 is ,
6 received.
7 (The document referred to, =
8 having been previously 9 marked for identification as 10 Mass AG Exhibit No. 105 was 11 received in evidence.)
12 BY MR. BROCK:
13 Q Mr. Baer, just briefly on Mass AG 105, the second 14 page of the letter, and the two short paragraphs are brief.
15 Let me just read that and I'll ask you one or two questions.
16 "I have been assured that Attachment 1 is a result 17 of a thorough examination of controller logs and indicates 18 all simulated and attempted contacts made to schools as part 19 of'the June 1988 exercise. Based on the foregoing, I am 20 confident that the state's response to Interrogatory 2 is a 21 comprehensive listing of all contacts made to school 22 personnel as part of the June 1988 exercise. , ;
23 "I trust this clarifies this issue for your 24 purposes."
25 Do you agree with that, Mr. Baer?
Heritage Reporting Corporation (202) 628-4888
-REBUTTAL NO. 23. PANEL CROSS 22983. ;
i.' 1 MR.- LEMALD: . Objection, Your Honor.
He is.just
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reading'from-the letter.-
( 12 3 JUDGE SMITH: He's asking them --
'4- MR. LEWALD: :If he agrees. 'The letter says.what i
.5 it says'.
6 JUDGE SMITH:. I know. Excuseime.
. 7 MR. BROCK: I'm sorry, Your Honor.
8 JUDGE SMITH:- It was perfectly clear to me, 9 particularly following our. discussion as to what permissible 10 cross-examination would be. He's asking him if he agrees 11 with'the facts stated in there. .
12- MR. LEMALD: The facts are stated as to what Mr.
13 Huntington says he's assured of.
14 ' JUDGE SMITH: Well, all right.
15 MR. LEMALD: And this witness --
16 JUDGE SMITH: We can cut it short if you will 17 agree that these facts are facts. i l
18 MR.-LEWALD: Well, short of Mr. Huntington, I 19 don't know how we can agree that these facts are these 20 facts, other than the fact that he said so in the letter, 21 and the letter speaks for itself.
l 22 He can ask Mr. Baer --
23 JUDGE SMITH: Are the statements set forth in'this j l
24 letter, in your view, Mr. Lewald, statements upon which we 25 can make findings of fact?
( Heritage Reporting Corporation (202) 628-4888 1 l
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REBUTTAL NO. 23 PANEL - CROSS 22984 1 MR. LEWALD: To the extent that the findings of 2 fact are a literal repeat of what is stated in the letter, ,
3 yes.
4 JUDGE SMITH: All right. We can make a finding of -
5 fact, for example -- ,
6 MR. LEWALD: That Mr. Huntington said on a 7 particular day, or wrote in a letter that --
8 JUDGE SMITH: No. I think we can say that, the 9 way the record stands right now or what Mr. Brock is l
10 seeking, is that without attribution we can find that the 11 calls recorded by entry numbers 10,.11 and 12 of Attachment 12 1 were simulated, et cetera. We can make findings of fact 13 that that is what he is seeking.
14 MR. FLYNN: Well, in fact, Your Honor, the list to 15 which Mr. Brock is now referring is identical to the list 16 which appears in Mass AG Exhibit 104, which is an excerpt.
17 from the Applicants' responso. They are identical lists.
18 JUDGE SMITH: What are you seeking from this 19 letter?
20 MR. BROCK: Your Honor, you characterized it 21 correctly. I am looking for proposed findings specifically 22 as to Mr. Huntington, who represents the State of New .
23 Hampshire. He actually carried out the emergency response 24 for the state; has made, as he describes it, a thorough 25 examination and has made certain conclusions as to the level Heritage Reporting Corporation (202) 628-4888
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REBUTTAL NO. 23 PANEL - CROSS 22985 a
1 of participation. ,
I
'2 JUDGE SMITH: .The Board has already accepted that 3E as.an exhibit. And if the Board rules that this is suitable 4 for findings of fact directly, then you have no further need 5 to examine.the panel on that point..
6 MR. BROCK: All right.
- 7- JUDGE SMITH: Or do you? I don't know. You may 8 'if you'wish.
9 MR. BROCK: I had that one question of Mr.-Baer as
-10 to -- well, I will withdraw that question, Your Honor, and I 11 will let it stand as is at this point on this, with respect 12 to MAG 105.
13 BY MR. BROCK:
14 Q- Mr. Callendrello, do you have the FEMA exercise
\ 15L report there?
16 A .( Callendrello) Yes, I do. If you would just give 17: me a moment.
18 Q Okay.
19 ' (Pause . )
12 0 A (Callendrello) I've got it now.
~
21 Q And could you turn to Appendix B, page 10?
22 A (Callendrello) I've got that page.
23 Q All right. .
24 Is it fair to say that, in the 1986 exercise for 25 Seabrook station, that with respect to school participation,
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k RE2UTTAL NO. 23 PANEL - CROSS 22986 1
1 FEMA found a deficiency? j 2 A (Callendrello) Just give me one moment to read 3 it, please.
4 Q Fine.
5 (Witness reads document.) ,
6 A (Callendrello) Yes. FEMA found a deficiency as 7 regards to capability to demonstrate the ability to effect 8 an orderly evacuation of schools.
9 Q I'm sorry, Mr. Callendrello, I didn't hear the 10 answer.
11 A (Callendrello) Yes. FEMA found a deficiency with .
12 regards to, and it's a long deficiency that's cited, but to 13 summarize, they found a deficiency in the state's capability 14 to demonstrate the organizational ability to effect an 15 orderly evacuation of schools. And then there is more, but 16 that's the essence of it.
17 Q And in response to that deficiency, the state 18 indicated in Column 2 that the organizational ability to 19 coordinate protective actions for schools will be 20 demonstrated during the 1988 NRC/ FEMA-graded exercise. That 21 was what the state stated there, correct?
22 A (Callendrello) Yes, that is the action proposed. .
23 Q I would move to another line at this point.
24 Gentlemen, I would like to refer you to page 54 of 25 your testimony. I believe that's where at the bottom of Heritage Reporting Corporation (202) 628-4888 i
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REBUTTAL NO. 23 PANEL - CROSS 22987 1 that page begins a discussion with respect to FEMA Objective l 2 No. 18; is that correct? .
3 A (Callendrello) Yes, that's correct.
4 Q All right.
. 5 Now, is it fair to say that that portion of the 6 testimony addresses the process by which the various 7 transportation resources were exercised for New Hampshire?
8 A (Callendrello) It talks about -- I guess I don't 9 understand the question.
10 Q Well, I was just trying to summarize. I mean this 11 focuses upon the vehicle providers and extent of their 12 involvement in the exercise; isn't that correct?
13 A (Callendrello) This particular section of 14 testimony discusses the implementation of protective actions 15 as the header on page 54 says. " Implementation of
, i 16 protective actions for impacted populations in New 17 Hampshire".
18 And by that we mean the hospital and nursing home 19 patients.
20 Q Fine. And a component of that is transportation 21 resources, correct?
. 22 A (Callendrello) Yes, for those particular 23 populations.
24 O And it was part of the requirements in the 25 exercise to demonstrate the capability of those service Heritage Reporting Corporation
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REBUTTAL NO. 23 PANEL - CROSS 22988 1 providers to provide that transportation in an actual -
2 emergency, right? It was testing,that capability.
3, A (Callendrello) One component of that function 4 would be a field activity. There- are other components of 5 that func. ion that would be demonstrated to satisfy that .
G objective.
7 Q Is it fair to say that, with respect to the 8 special facility bus routes, that approximately one-fourth, 9 I believe it's 26 percent did not perform the coutes 10 successfully?
11 .
(Witness reviews document.)
12 A (Callendrello) I don't know the exact 13 percentages. But in looking at the total number of routes, 14 which would include transit-dependent routes, nursing home 15 routes and hospital routes, 49 out of 66 were completed 16 successfully.
17 Q Whatever percentage that works out to be. I won't 18 quiz you on that one.
19 And referring on to page 57 of your testimony, 20 it's fair to say you discuss -- a nrimary objective of the 21 exercise scenario was to test the sufficiency of the 22 coordination and integration of various -- .
- 23 A (Callendrello) I'm sorry. I'm a little bit 24 behind you.
25 Q I'm sorry. Page 57 of your testimony.
l l
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REBUTTAL NO. 23 PANEL - CROSS '22989 1 A (Callendrello) Okay.
And it refers to a primary objective of the
'( 2 Q' 3 exercise scenario was to test the sufficiency of the 4 coordination and integration of the various personnel state 5 and local, and the resources needed to evacuate the special-6 populations pursuant to the NHRERP.
- 7 That was a primary objective,' correct?
8 A (Callendrello) Yes.
9 Q And certainly those resources included the 10 transportation resources, correct?
11 A (Callendrello) That is one;of the resources, yes.
12 Q And is it fair to say that that communication and 13 coordination process for the majority'of the transportation 14 routes -- well, let me strike that.
I 15 . Is it fair to say that the majority of the 16 transportation routes for the State of New Hampshire were 17 run out of the time line on day two of the exercise rather 18 than day one?
19 A (Callendrello) In the case of the population we 20 are talking about, hospitals, nursing homes and transit-
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21 dependent routes, of the.66 routes that were run, 31 were 22 run on day one; 35 on day two.
23 So, yes, the majority were run on day two.
24 Q And out of sequence with the scenario events, 25 correct?
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l REBUTTAL NO. 23 PANEL - CROSS 22990 1 A (Callendrello) That's correct.
2 Q All right. And so to the extent that there was ,
3 communication or coordination regarding the scenario events, .
l 4 the majority of the transportation runs were not included in.
5 that coordination process, correct? ,
6 A (Ca11endre11o) The confusion I'm having is the 7 coordination aspect does not necessarily link to when the
- 9 runs are made. The coordination is the assessment of the 9 need for transportation resources, the assignment of the 10 transportation resources from the pool, and the 11 establishment of the routes and who would run the routes.
12 The actual running of the routes, while it was 13 demonstrated, did not need to be demonstrated in sequence 14 with the rest of the decisionmaking process. It was more of 15 a mechanical activity of checking accuracy of maps and the 16 ability of drivers to follow a map and reach the location. l l
17 Q So if I understand your testimony, it is not 18 significant to demonstrate coordination between 19 transportation providers and the actual scenario events.
20 That it is not necessary.
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21 A (Callendrello) No, I didn't say that. k i
22 I said that the field activity, the actual , i 1
23 mechanics of running a route, it was not critical that that
)
24 be run in sequence with the rest of the scenario events. )
l 25 Transportation providers are a different story. That goes Heritage Reporting Corporation (202) 628-4888
, . 1 REBUTTAL NO. 23 PANEL - CROSS 22991 :
1 along with the overall transportation assessment process of
' f' 2 assessment of need, assessment of supply and allocating the i s, -
3 necessary transportation resources.
4 0 . Well, Mr. Callendrello, it is a fact, is it not, 5 that the process is the contact goes to the transportation .
! 6 providers who, in turn, have to mobilize and deploy 7 transportation resources.
8 That's the plan, is it not?
9 A (Callendrello) Yes, it is.
10 Q All right. And to the extent that the plan calls 11 for that transportation provider to mobilize and coordinate 12 the deployment of his resources in conjunction with 13 emergency events, that was not tested in this exercise for 14 the majority of the vehicles, correct?
k'-
15 A- (Callendrello) No, that's not correct.
16 The routes that were run on the second day were 17 run by private vehicles and members of the. backup driver 18 pool. The buses that were provided by the transportation ,
19 providers were mobilized on day one of the exercise.
20 Q All right, but the routes that were run on day two
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21 were to demonstrate that those routes actually -- the 22 vehicles could be put in the field and get where they needed 23 to go, correct?
24 A (Callendrello) They were to demonstrate that the 25 maps could be followed.
Q Heritage Reporting (202) 628-4888 Corporation 1
I REBUTTAL NO. 23 PANEL - CROSS 22992 j i
1 If you go back to the ' 86 exercise inadequacy, it J 2 .was a problem with maps. So there was a large sample of 3 maps that were taken and actually run during the exercise. l l
4 -Some in sequence on day one. Some out of sequence on day 5 one. Some out of sequence on day two. , ,
6 A (Gram) Also, Mr. Brock, I might just add.
7 Part of the reason that these routes were run out 8 of sequence was to facilitate just the time involved. FEMA. ,
I 9 insisted that they ride with every one of these routes -- on !
1 10 every one of these routes, either buses or private vehicles.
11 So they didn't have 65 evaluators to ride on all these l 12 vehicles in one day. And they had a limited number of FEMA 13 evaluators for transportation evaluations in New Hampshire.
l 14 So they would evaluate a route, and then they 15 would get off of that vehicle and go on to another vehicle.
I 16 And actually, I believe Mr. Donovan testified that the 17 actual process on day one went until 10:00 or 11:00 in the i 18 evening,.long after their regular drill had shut down. 1 1
1 19 So there was a limitation of the amount of FEMA evaluators !
l 20 involved. l 21 22 .
1 23 24 25 Heritage Reporting Corporation (202) 628-4888 l
REBUTTAL NO. 23 PANEL - CROSS 22993 1 Q Would you agree, Mr. Gram, that there is a ,
- 1 2 coordination process contemplated in the New Hampshire plan j Q/
3 for transportation providers mobilizing and deploying the 4 actual buses into the field? .
5 I mean, that is part of the plan; correct?
o A (Gram) Yes, that's part of the plan.
- 7 Q All right.
8 A (Gram) And demonstrated on Day 1 of the exercise.
9 Q Now, Mr. Callendrello, you referred to a problem 10 with maps and map reading by transportation providers in the 11 1986 exercise; correct?
12 A (Callendrello) Yes, I did.
13 Q And if we look at Appendix B-29 of the FEMA report
,3 14 it's fair to say -- sorry.
l )
\m / 15 Do you have that?
16 A (Callendrello) Yes, I do.
17 Q It's fair to say that that problem resulted in a 18 deficiency in 1986; correct? i 1
19 A (Ca11endre11o) That problem, there was an i 20 ancillary issue on a driver or bus arriving low on fuel.
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21 Butthebulkofthatinadequacydeficienc/wasrelatedto 22 maps. ,
)
23 Q All right. l 24 And the state responded by proposing that the maps 25 be revised; correct?
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REBUTTAL NO. 23 PANEL - CROSS 22994 1 A (Callendrello) Yes. In part. -
2 d And they also proposed further driver training; 3 correct?
4 A (Callendrello) Correct.
5 Q But it's fair to say that, in 1988, FEMA comments ,
l 6 that the maps are, quote: " Big improvement," unquote, but 7 they are still difficult to read; right? -
8 A (Callendrello) Yes.
9 Q There are no street signs or very few street signs 10 or town line markers in the New Hampshire EFZ; correct?
11 A (Callendrello) That's what the comments say; yes.
12 Q All right.
13 And several of the transportation providers got 14 lost; correct? <
15 A (Callendrello) It says: "Several bus routes to 16 schools, day cara, and bus routes were aborted because the 17 driver got lost -- drivers got lost."
18 Q That's at least similar in nature to the problem 19 which resulted in a deficiency in 1986; correct? i 20 A (Callendrello) I don't think it's a similar type 21 of problem. I don't think it's similar in nature to the 22 problem. ,
23 The comment indicates that the maps are a big 24 improvement. I know there has been a commitment to further 25 refine the maps and enhance the maps. l I
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L . .I REBUTTAL NO. 23 PANEL - CROSS 22995 1 . ,.Q Now, Mr. Callendrello, it's correct, is it not, j l-("'\ that three bus companies of the 18 that are under contract 2
3 for the State of New Hampshire actually provided buses for' 4 the exercise; is that your understanding?
5 A (Baer) Yes, that's correct.
6 Q Is that your understanding?
. 7 I'm sorry.
8 A. (Callendrello) I deferr,ed to N . Baer on that 9 answer.
10 Q Fine.
11 Mr. Baer, can you be helpful on that?
12 A (Baer) That's correct.
13 There were three bus companies that actually f-s 14 provided buses.
\msl 15 Q. And those buses had been recontracted? I mean, 16 they knew in advance of the exercise day when the buses 17 would be needed and how many buses would be needed; correct?
18 A (Baer) I don't know the details of the 19 rearrangements that had been made with them.
20 Q All right.
21 Well, to refresh your memory', Mr. Baer, I'm 22 looking at page 7.4-24 of the scenario document.
23 I doa't know if that's readily available to you?
24 A (Callendrello) We don't have a copy of that up ,
I' 25 here.
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REBUTTAL NO. 23 PANEL - CROSS 22996
~1 Q Let me just show you my copy.
2 (Counsel approach witness table and document shown 3 to witnesses.)
4 BY MR. BROCK:
5 Q Mr. Baer, I'm sorry but this is the only copy. , i 6 I'm showing you part of the scenario document, 7 Applicants' 61, page 7.4-24. '
8 That does identify the transportation companies 9 which actually provided vehicles in the exercise for New 10 Hampshire; correct?
11 A (Baer) That identifies three bus companies who 12 provided buses. One company that provided a wheelchair van.
l 13 And one company that provided an ambulance.
14 Q All right.
15 And it states there, does it not: "That advance 16 arrangements have been made with the companies for use of 17 the vehicles." Correct?
18 A (Baer) That's correct.
19 Q And you know of no reason to dispute the accuracy 20 of that?
21 A (Baer) No.
22 Q So it's three out of 18 bus companies and there .
23 were advance arrangements made for them.
24 Is that correct, Mr. Baer? That's your I
25 understanding at this point?
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- I REBUTTAL NO. 23 PANEL - CROSS 22997 1 A (Baer) That's my understanding.
g
( ) 2 , Q Now let me ask you: is it your understanding, Mr.
3 Callendrello, that part of the commitment that the various 4 transportation providers, bus companies for New Fampshire, 5 undertake when they enter into a letter of agreement is t,o 6 participate as requested in the exercises and drills and in 7 an actual emergency, and that's all part of the commitment 8 that the companies make when they sign on? -
9 A (Calle. mello) I haven't looked at one of the 10 letters of agreement for the bus companies in quite some 11 time.
12 I just can't recall offhand without seeing one 13 whether it talks about exercises and drills. I know it does talk about their commitment to respond in an emergency.
(}
14 15 Q So is it your view that bus companies in New 16 Hampshire do not have any obligation to participate in 17 drills or exercises or training?
18 A (Callendrello) That's not my position.
19 It's just, I can't recall without looking at a 20 letter what specific mention is made of drills and exercise
~
l 21 participation.
22 O Well, I'm not trying to quiz you and ask for total 23 recall as to, you know, the letters say whatever they say.
24 What I'm asking is: based on the fact that this 25 has been a process, as I understand, you've had some l
1 ,m
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! REBUTTAL NO. 23 PANEL - CROSS, 22998 1 involvement with over.a period of years.
2 Is that correct?
3 A (Ca11endre11o) The process being the development
. 4 of emergency plans? 1is, I have.
5 Q And that includes letters of agreement; correct? ,
6 A (Callendrello) I was involved in letters of 7 agreement to the extent that I ensured they were -
8 incorporated in the plan. ,
9- I didn't go out and solicit any or develop the 10 text of a letter of agreement, though.
11 Q So you have no understanding one way or another 12 about whether or not New Hampshire bus companies have to 13 participate in exercises, training, or drills? l l
14 A (Callendrello) I don't recall the provisions of !
I 15 the letter of agreement. In fact, I don't think I've even l l
16' got a New Hampshire plan here. If I did, I could look it l
17 up. .
18 Q Is it fair to say, Mr. Callendrello, that the l
19 emergency exercise is a primary and important means of l 1
20 training the various response components and personnel?
21 A (Ca11endre11o) I missed the first part of that 22 question. ,
23 Q Let me withdraw the question.
l 24 Isn't it fair to say that the emergency exercise, 25 the prelicense exercise is a primary means by which the (202) 628-4888
REBUTTAL NO. 23 PANEL - CROSS 22999 j 1 emergency response organization not only is tested but, in
/m '
( i 2 fact, is trained to respond?
As,/ .
3 A (Ca11endre11o) One of the components of an 4 exercise is a training component, or one of the purposes of 5 an exercise is training as well as evaluation of the 6 capability to respond.
- 7 So to that extent it is. I wouldn't say it's the 8 primary purpose. But it is one of the purposes.
9 0 Well, certainly, let's take drills. Something 10 less than the prequalifying exercise, those are also events 11 that are conducted to train the emergency response personnel 12 in their various functions; correct?
13 A (Callendrello) A drill is more of a training l
l ,s 14 function than an exercise, is the way I would rank the l / T s t
\_./ 15 events. The drill is, as I said, more training than 16 evaluation. An exercise is probably more evaluation than 17 training.
18 Q All right.
19 So training is one of the purposes of the 20 qualifying exercise, but it's not the most important, that
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21 being evaluation by FEMA?
22 A (Callendrello) I didn't discriminate between 23 qualifying exercise and another type of an exercise.
24 Training is one of the purposes and one of the l 25 components of an exercise. -
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1 Q Well, let me ask.you, Mr. Callendrello, would it 2 concern you th'at if, during the course of the exercise, 3 various transpor'tation providers refused to participate in 4 the exercise when contacted? Would that be a concern?
5 A (Callendrello) I don't understand the question.
6 Q Well, the question is this, Mr. Callendrello.
7 You have indicated that, at least, a purpose if -
8 maybe not the primary purpose, but a purpose of this 9 prelicensed exercise last June was training the various 10 response components of the plan; correct?
11 A (Callendrello) That is certainly one of the 12 purposes of an exercise.
13 Q And it's also true, is it not, that the letters of 14 agreement that are incorporated into the plan are making a 15 representation by the Applicants that those resources will 16 be available when called upon to respond to an emergency; 17 correct?
18 A (Ca11endre11o) I'm confused.
19 I don't know if you're referring to the New 20 Hampshire plan or the Massachusetts plan.
21 Q I'm referring to the New Hampshire plan at this 22 point.
23 A (Callendrello) Could you please repeat the 24 question then. .
25 (Whereupon, the reporter played back the pending Heritage Reporting Corporation l (202) 628-4888 l
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REBUTTAL NO. 23 PANEL -. CROSS' 230Ol'
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REBUTTAL NO. 23 PANEL - CROSS 23002 1 JUDGE SMITH: You mean a representation to the 2 Board?
3 MR. BROCK: That's correct, Your Honor. That they 4 are representing that as a fact that those resources will 5 respond. ,
6 THE WITNESS: (Callendrello) Yes, we are. Those 7 letters, of course, are between the state and the 8 transportation providers.
9 BY MR. BROCK:
10 Q Which Applicants rely on?
11 A (Callendrello) I don't know if you're talking 12 about in the legal sense. We have presented them as a 13 statement that those resources are available.
14 JUDGE SMITH: I think that in this instance you i
15 are pushing the witness. N' ell, he's the licensing official.
l 16 I guess it's fair enough.
17 BY MR. BROCK:
18 O Let me ask you this, Mr. Callendrello.
19 (Pause . )
20 MR. BROCK: May I just have a moment, Your Honor?
21 (Pause . )
22 BY MR. BROCK: .
23 Q Mr. Callendrello, can I refer you to the Extent of 24 Play for Objective 18? .
25 This is Section No. 3.3.7 at page 3.3-26.
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PEBUTTAL NO. 23 PANEL - CROSS 23003 7
-1 A (Callendrello) I've got~that.
i 2 LQ And at the bottom of the page under " Extent-of
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3 Play", it states, does it not, that actual supply / demand 4 calculations will be made per RERP procedures, correct?
5 A (Callendrello) Correct.
6 Q And let's focus on the supply side for a minute.
. 7 Isn't it fair to say that, in making that 8 determination of actual supply, that this Extent of Play 9 required that each of the transportation providers determine 10 actually how many vehicles were available at the time of the 11 exercise?
12 A (Baer) Would you repeat the question again, 13 please, Mr. Brock?
s 14 Q Yes. I'm referring to page 3.3-26 of the Extent S 15 of Play document, correct? You have that?
16 A (Baer) Yes.
17 Q The last sentence on that page states, " Actual 18 supply / demand calculations will be made per RERP.
19 procedures." Correct? That's what it says?
20 A (Baer) Yes.
21 Q Let's just take a smaller bite.
22 The RERP procedures for determining vehicle supply 23 call for each bus company, when called, to make a 24 determination of how many buses they actually have available 25 to deploy, correct?. That's the procedure.
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REBUTTAL NO. 23 PANEL - CROSS 23004 1 A (Baer) During an actual emergency, that's the way 2 the procedure would work, yes.
3 Q Isn't it fair to say that that statement in the 4 Extent of Play document contemplates that that procedure 5 will in fact be performed by each of the bus companies 6 during the exercise?
7 A (Baer) That particular provision of the Extent of ,
8 Play refers to the procedures of the EOC personnel who had 9 responsibility for contacting the providers per their 10 procedure.
11 Q And per their procedure is to call each bus 12 company and ask how many buses do you have; isn't that 13 correct?
14 A (Baer) That's what their procedure calls for, 15 yes.
16 Q And the actual supply figure would be the figure l
17 given by the bus company to the EOC, correct? )
l 18 A (Baer) That's correct.
19 A (Callendrello) Well, there's two ways of 20 interpreting that, and I don't know for certain what the 21 exercise documentation shows in this regard, whether the bus -
22 companies or transportation providers provided the actual 23 supply information. But I read that as actual calculations 24 will be made.
25 To the extent that schools weren't in session, we 1
l Heritage Reporting Corporation (202) 628-4888
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REBUTTAL NO. 23 PANEL - CROSS 23005
,,~ 1 know that the demand information was not actual; that it was 2 default values. I just don't know for certain whether the 3 supply information was actual, or whether we used the number !
l 4 from the letters of agreement to calculate the available
- 5 supply of vehicles and make the transportation allocations.
6 A (Baer) As I recall from the exercise 7 documentation, the positions of the persons in the state 8 emergency operation center in Concord were provided a 9 controller message which asked them to initiate contact with 10 the transportation providers shown in their procedure.
11 And there was a message that was appended to that j
12 message, the controller message, which the persons in the l 13 EOC were to read to the transportation providers they
/ 14 contact.
() 15 Q Let me just stop you here.
16 This was an actual contact by EOC to each of the 17 transportation providers?
18 A (Baer) Correct.
19 And as part of that message, they asked whether 20 they were participating in the drill that was being 21 conducted that day. And the purpose of the contact was to 22 verify that they had the correct phone numbers, and to 23 verify that they could make contact.
24 In fact, the actual supply vehicles that were to I 25 be available that day was provided by a controller message.
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REBUTTAL NO. 23 PANEL - CROSS 23006 1 And I believe that information had been provided to you.
2 O It's your testimony that the last sentence on 3 Objective 18 at page 3.3-26 did not contemplate or require 4 bus companies to actually determine the supply of vehicles 5 on hand? That's your testimony. -
6 A (Baer) That's correct.
7 Q So to your knowledge, that procedure was not 8 tested in this exercise, correct?
9 A (Baer) I'm sorry. What procedure? j 10 0 The procedure by which the bus company determines 11 how many vehicles are actually available for deployment and 12 communicates that to the EOC. That was not tested in this 13 exercise.
14 A (C'allendrello) No, that was tested. As Mr. Baer 15 indicated, the bus companies were contacted. It's imply I
16 that the controller provided the actual bus information, or l 17 available bus information consistent with the scenario.
18 Q Just so we are clear. It did not matter, for 19 purposes of meeting Objective 18, whether or not the bus j 20 company provided the actual availability of transportation 21 resources to EOC. That was not a requirement in this 22 exercise. ,
23 A (Baer) No, sir, it was not. It was not part of ,
1 24 the Extent of Play. j 25 A (Gram) If I might just add. j
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REBUTTAL NO. 23 PANEL - CROSS 23007 1 l
1 Q Yes. , ;
d g,,) 2 A (Gram) I believe Mr. Donovan also testified that l j
3 verification of resources, transportation resources was part .]
J 4- of his evaluation of the exercise and the plan. And he
. 5- evaluated all of.the transportation resources in I
6 Massachusetts and New Hampshire and found them to be l l
7 adequate.
l 8 Q Well, Mr. Gram, he at least didn't evaluate how 9 many buses were actually available on the day of the 10 exercise in New Hampshire, did he?
11 A (Gram) Not on the specific day of the exercise.
12 But I believe his evaluation process did go into on any 11 3 given day what types of resources would you have available,
14 or how soon could you make all your resources available.
15 Q That was not demonstrated during this full 16 participation exercise, though, was it, Mr. Gram, that 17 determination by FEMA on actual availability of bus 18 transportation resources for New Hampshire? That was not 19 demonstrated.
20 A (Gram) For the day of the exercise, no, it was 21 not.
22 Q Whatever basis there was for Mr. Donovan's 23 opinion, it did not involve an actual determination of bus 24 resources in New Hampshire. It was not part of his 25 information.
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1 REBUTTAL NO. 23 PANEL - CROSS 23008 1
1 A (Gram) No , I don't agree with that 2 characterization. His evaluation did include an evaluation ,
3 of resources, transportation resources in New Hampshire.
4 Q But you are saying that occurred on some day other 5 than the, exercise? .
6 A (Gram) Yes, sir.
7 Q Let's refer for a moment to Attachment H of your 8 testimony.
9 Do you have that?
10 A (Callendrello) Yes, I have that.
11 Q Okay. And there is a cover letter to Mr. Gram 12 from Richard Donovan, correct?
13 A (Ca11endre11o) Yes, that's correct.
14 Q Mr. Callendrello, I would like Mr. Gram to 15 respond, particularly since he's the one apparently this 16 letter went to.
17 'Now, Mr. Gram, following that cover letter there 18 is what's entitled " Summary of Survey of Seabrook Facilities 19 and Services", correct?
20 A (Gram) Yes, sir. It reads, " Summary of Survey of 21 Seabrook Facilities and Services, February 23 through 26, 22 1988". .
)
23 Q And your understanding is that was the time within 24 which FEMA made various communications to the identified 25 transportation providers, correct?
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REBUTTAL NO. 23 PANEL - CROSS 23009 1 -A (Gram) Yes, sir. I believe this is the. survey.
() 2 Q And then following that there is a series of 1 3 pages, one page-for each transportation provider, indicating 4 certain information regarding those transportation s
. 5 resources, correct?
6 A (Gram) Yes, sir.
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7 Q Now, I want to understand,-sir, first of all, did 8 you personally have any involvement in obtaining this survey
-9 data which appears beginning at page 6 of Attachment H and 10 continuing to the end?
11 A (Gram) I believe the only involvement that I 12 personally had was to provide facilities for the FEMA 13 evaluator that actually did the contacts. New Hampshire
(N 14 Yankee provided a place for a phone, and we also provided at 15 that time a redacted list of the resources for -- an 16 unredacted list of the resources in Massachusetts, because 17 they were under protective order.
18 Q You personally did not call any of these 19 companies, correct?
20 A (Gram) No , sir.
21 And you were not present when the calls were made, l Q
. 22 correct?
23 A (Gram) No, sir.
24 Q And it's fair to say that, at least on this 25 document, it indicates that someone by the name of Eleanor s .
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REBUTTAL NO. 23 PANEL - CROSS '23010 1 ' Castle apparently made these calls, correct? ]
2 A (Gram) Yes, sir. I believe she works for FEMA.
i 3 Q And, Mr. Callendrello, you had no involvement in j 4 the preparation of this survey document, correct?
5 A - (Callendrello) That's correct. I think that Mr. ,l 6 Donovan testified as to how this was developed. 3 l
7 Q I'm not asking for Mr. Donovan's testimony. l 8 I'm asking, you personally were not involved in ,
i 9 preparing this, correct? j 10 A (Callendrello) No, I was not.
11 Q And, Mr. Baer, you were not either, correct?
l 12 A (Baer) No, sir, I was not. !
13 Q It's fair to say no one on the panel can vouch for 14 the truth of the information contained therein that was >
15 obtained by this Eleanor Castle, correct?
16 No one was involved in preparing this survey 17 document.
18 A (Callendrello) Nobody here was involved in 19 preparing the survey document, no. l 20 As far as vouching for the truth, I think Mr.
.I 21 Donovan --
22 Q Again, Mr. Callendrello -- . I 23 A (Callendrello) -- was examined on it.
24 Q I understand. All right.
I 25 All right, Mr. Gram, so that if I understand the Heritage Reporting Corporation (202) 628-4888 O1 l l l l
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.. 1 sequence theni you' requested a copy of this survey from.Mr.
\s,/ 2 Donovan, correct? -
3 I'm referring to the cover page'for Attachment H, 4 the~ letter to you. Well, it.says, "as requested by your
- 5 staff", correct?.
I -6 A (Gram) Yes, sir. ,
7 MR. BROCK: Your Honor, I would move to strike 8 Attachment H. I don't'believe this panel has any -- they 9 can't vouch for the truth of any of the facts contained in 10 .here; were not involved in the process of accumulating the 11 - information. It's a document that apparently was prepared i 1
12 by an Eleanor Castle through whatever series or. process 13 within FEMA.. Richard Donovan, as requested, conveyed a. copy
.h - 14 ' to this panel and now it's being offered as part of their g
15 testimony.
16 I think it should be stricken, Your Honor.
17 MR. FLYNN: And I oppose the motion. For one 18 thing, Mr. Callendrello attempted to answer the question can 19 he vouch for the accuracy of the document, and he was cut
- 20 off by Mr. Brock. Mr. Brock let him know that he did not 21 want to hear the answer to that question.
- 22 For another, it's my recollection that there has 23 been testimony from Mr. Donovan about the procedures used to 24 develop this list.
- 5 2 MS. DOUGHTY
- Your Honor, I would also join in the Heritage Reporting Corporation (202) 628-4888
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REBUTTAL NO. 23 PANEL - CROSS 23012 1 motion to strike on grounds of relevance. The whole issue 2 before us is whether the New Hampshire Yankee, State of New 3 Hampshire and State of Maine could carry out an emergency 4 response. And here we have a demonstration that FEMA knows 5 how to contact bus companies and figure out information. ,
6 But that in no way demonstrates that the individuals 7 responsible for actually carrying out the emergency response -
8 can perform this function.
9 And again, as elicited by Mr. Brock, they had 10 participation in this process.
11 MR. BROCK: It's also involving events, Your 12 Honor, which occurred not on the day of the exercise. And 13 to the extent that it's trying to be shoe-horned into 14 testimony supporting that the exercise demonstrated certain 15 things, it would be irrelevant on'that ground as well.
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t REBOTTAL NO. 23 PANEL - CROSS 23013 1 MR. BACHMANN: Your Honor, I would like to know
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2 from Mr. Brock. I haven't been able to find it. This must 3 be referred to in the testimony. And therefore, we could 4 see what use is being made of it by this panel. It might be
. 5 easier to determine its status.
6 JUDGE SMITH: The attachment is being used to 7 support the statement of what FEMA's finding was. It is not 8 being offered to support any testimony as to the relevant 9 facts from the minds of this panel or their colleagues.
10 But it is being offered to show that there was a 11 FEMA finding as to the availability of the resources. And 12 it's apparently genuine. It is obviously genuine. It's 13 relevant. It is relied upon by them.
14 MR. BROCK: Your Honor, that may --
15 JUDGE SMITH: Now, it might have been a different 16 matter if they hadn't -- they used a handle on this and that 17 is, they' re depending upon a FEMA finding. This is good 18 evidence of a FEMA finding. It is. It's adequate evidence 19 of a FEMA finding. It's reliable. It's genuine. It's in 20 the course of FEMA's official duties.
21 MR. BROCK: Your Honor, if I could --
. 22 MR. LEWALD: Your Honor, I make the observation 23 that it appears from the record before me that the -- not 24 the covering letter but the attachment covering letter with ,
25 a different covering letter is Mass AG Exhibit No. 73.
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REBUTTAL NO. 23 PANEL - CROSS 23014 1 JUDGE SMITH: I'm looking at a letter dated i 2 October 21st, '88 from Donovan to Krimm.
3 MR. LEWALD: Correct 4 And it's an attachment that follows that letter.
5 JUDGE SMITH: Well, what I see after that .
6 immediately goes into summary of survey.
l 7 MR. LEMALD: Correct.
8 And that same summary of survey, outside of a 9 different covering letter, makes up Mass AG Exhibit No. 73.
10 It would appear to be the same document except for 11 a different covering on it.
12 JUDGE SMITH: I have 73 as a memo from Donovan to 13 Krimm.
14 MR. FLYNN: But the attachment to that is the same 15 attachment as we are talking about here.
16 JUDGE SMITH: So what is it that you're concerned 17 about? The conclusions?
18 MR. BROCK: To the extent this panel, Your Honor, 19 is giving an opinion as to what this survey shows or what 20 FEMA says it showed, we don't think that's appropriate.
21 Now to the extent that Mr. Donovan may have been 22 questioned on the matter and gave whatever testimony he did, -
23 that's a different issue. That's his agency.
24 But this panel is simply attaching a document, a 25 survey document, they had no role in preparing. They can't Heritage Reporting Corporation
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. , _ 1 vouch for the facts.
-f 5 2 I just think at least for this panel it should be 3 stricken to the extent --
4 JUDGE SMITH: That's somewhat different than
. 5 having a finding which is made by the agency charged with 6 the finding and evidence of the finding.
7 Now, I don't know how good evidence of the finding 8 it is, because I don't see the finding in Donovan's letter.
9 I think that may be something that can be inferred from the 10 summary, I don't know.
11 Let me read again what they are using it for.
12 What was that page again? 27?
13 THE WITNESS: (Callendrello) Page 27, Your Honor.
14 (The Board reviewing document.)
15 JUDGE SMITH: Tell me again, your objection is?
16 Go ahead.
17 MR. BROCK: I just want to be clear.
18 First of all, Your Honor, I don't agree, at least, 19 with what I understand the suggestion at page 27 of the 20 testimony is. Which is, first, that somehow this survey was 21 used by FEMA not for plan review,.but in some sense to show
, 22 that the exercise met objective 18.
23 JUDGE SMITH: They don't claim that.
24 MR. BROCK: Well, okay. '
25 JUDGE SMITH: They claim in this paragraph that a
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REBUTTAL NO. 23 PANEL - CROSS 23016 1 resource survey conducted by FEMA -- as I read it -- ,
2 resource survey conducted by FEMA --
3 MR. BROCK: It talks about " relied upon for 4 implementation of the SPMC."
l 5 Now, if they are talking about simply that there .
6 are,some resources, and, yes, they have whatever the 7 commitment is under the LOA, that's one thing.
i 8 But to the extent that they are trying to infer or 9 ask this Board to make some finding that these resources, in 10 fact, were shown to implement the plan or capable of 11 implementing the plan on the exercise day, that didn't l
l 12 happen.
13 JUDGE SMITH: I don't read them as saying that 14 those resources were demonstrated on exercise day. I just !
15 read it that FEMA has made the finding, alluded to several 16 times by Mr. Donovan, that one of the things they do is they 17 count resources.
18 MR. BROCK: Could I just make one other 19 observation, Your Honor.
20 There is reference to -- this is Attachment C of 21 the testimony which is a letter from Krimm to Thomas of 22 FEMA, In that it makes -- I bet.'ieve it makes reference to -
23 this preexercise evaluation, which is sne thrust of this 24 testimony for determining availability of buses and training 25 of bus drivers.
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I REBUTTAL NO. 23 PANEL - CROSS 23017 1 But it goes on to talk about guidance for i
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(;g) 2 determining extent of exercise demonstration and evaluation l
3 for bus drivers in the exercise. That's a different matter. {
l 4 And that's on the attachment which talks about the !
. 5 representative --
6 JUDGE SMITH: I've lost your argument now.
7 MR. BROCK: My distinction is this, Your Honor.
8 I have two problems. First, that this panel is 9 offering a FEM 4 survey document.
10 JUDGE SMITH: All right.
11 The thing that you have brought to our attention 12 that we don't have the answer to is, where do they get from 13 "The survey to FEMA's determination that transportation
(
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14 resources relied upon for implementation of the SPMC do 15 exist and are adequate."
16 Where do they get that? I don't see it in 17 Attachment H. I see the survey and i see a simple 18 forwarding letter.
19 I don't see the determination to which they 20 allude.
21 MR. BROCK: Your Honor, I believe, is correct.
. 22 JUDGE SMITH: Is that a problem?
23 MR. BROCK: I think it is a problem.
24 Several of these attachments are simply FEMA 25 memos, internal FEMA memos, not all but some. And they're rm I I (m / Heritage Reporting Corporation (202) 628-4888
1 REBUTTAL NO. 23 PANEL - CROSS 23018 1 attached to this testimony; and then, certain statements are 2 made about what these memos mean.
3 I don't think that these witnessec are qualified 4 to --
5 JUDGE SMITH: See, that's in a different little ,
6 context that you have to take into account. FEMA is in the
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7 business of evaluating their plant.
8 MR. BROCK: Correct.
9 JUDGE SMITH: They have to have FEMA's evaluation 10 and approval. They are in the business of getting FEMA's 11 evaluation and approval and acting on it. So when they do 12 get relevant information from FEMA that is generated in the 13 course of FEMA's official business and ends up in their 14 possession and they do rely upon it and they do use it to 15 come to the NRC and get a license, it is relevant and it's 16 reliable. I mean, if it is otherwise genuine and all that.
17 MR. BROCK: Right."
18 JUDGE SMITH: It is competent.
19 So that aspect of your objection is not well made.
20 But the other aspect of it is that the Attachment H doesn't 21 support their statement. I think that's correct. I don't 22 see how Attachment H supports the statement. ,
23 MS. DOUGHTY: Your Honor, Mr. Donovan said there 24 was a plan review process which is separate from the 25 exercise process, and this attachment goes to the FEMA plan l
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REBUTTAL NO. 23 PANEL - CROSS 23019 i
1 review process, but not to any way, shape, or form showing s
, ) 2 that the performance of the exercise was accurate. !
i 3 JUDG7 SMITH: They do not state on page 27 ]
4 anything. They don't make any claim about the exercise that j
- 5 I can see.
6 In fact, they get into exercise demonstration in 7 the next subsection, although it is under the Extent of Play ]
8 section. ;
9 It may very well be argued -- I suppose. I don't 10 know about the categorization -- it may very well be argued 11 that when FEMA surveys resources and measures resources as a 12 part of their plan approval, that could have come in under 13 the plan evaluation aspect as compared to the exercise 14 aspect. I don't know.
['L.)}
15 But what it is, it is something beyond reading the 16 language of a plan and exercising it, somewhere in between.
17 I don't know, I think it can belong at either place.
18 But the fact is that they do not rely upon it for 19 any exercise demonstration, only as a resource survey.
20 But still, it seems to me, that you have prevailed a
21 in that H does not support the statement. Does it?
- 22 MR. BROCK: I don't believe it does.
23 . JUDGE SMITH: Does it, anybody?
24 THE WITNES3: Supports it, Your j (Callendrello) 25 Honor, in terms of the plan finding, the overall SPMC I
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REBUTTAL NO. 23 PANEL - CROSS 23020 !
1 finding.
2 One of the reasons why "H" is in there is that it 3 needs to be read along with Attachment C. And in Attachment 4 C Mr. Thomas --
5 JUDGE SMITH: Oh, I see. ,
6 "H" is the underlying survey which supported "C."
7 THE WITNESS: (Callendrello) Attachment C on the 8 second page, the response to the issue raised, and it was an 9 issue regarding the scope of the demonstration o f bus 10 drivers, was that the focus of the ersluation should be on 11 preexercise activities.
12 MR. BROCK: Your Honor, I would just point out 13 that, first of all, I don't think that is a correct 14 characterization of what FEMA said. And I think, first of 15 all, that points out a difficulty in trying to v ermine 16 what FEMA said. ,
1 17 JUDGE SMITH: Let me catch up.
18 MR. BROCK: All right.
19 But Mr. Callendrello has referred to Attachment C.
20 JUDGE SMITH: Well, let me read it.
. 1 21 MR. BROCK: All right.
22 (Board reviewing document.) ,
23 JUDGE SMITH: All right.
24 You're next step, you have gone one step further.
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-s 1 find that FEMA -- as I read it, FEMA comes up with issue two
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'\ 2 -and says, well, the correct way to resolve. issue two is l 3 apparently in accordance with the way Attachment H handled
! 4 that aspect of it. -
5 So where do you bridge the gap to a finding that 6 FEMA determined that the transportation resources were 7 adequate? Is that elsewhere in the memo?
8 THE WITNESS: (Callendrello) No.
9 That's in the SPMC evaluation. I don't have a 10 copy of it in fror' of me.
11 JUDGE SMITH: That's an SPMC.
12 I'm having difficulty right now figuring out why 13 "C" is in the testimony.
14 THE WITNESS: (Callendrello) Your Honor, as far 15 as the concerns of transportation resources, we were 16 attempting to explain why the scope of the exercise or the
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17 Extent of Play of the exercise was what it was.
18 And one of the influences on the Extent of Play 19 for transportation was Attachment C. And in that Attachment 20 C, Mr. Krimm informed Mr. Thomas, specific to the Seabrook l
21 site, that the focus of that activity should be on the ;
22 preexercise evaluation of resources. i 23 And we put in Attachment C to show that that was 24 an influence on how much we demonstrated at the time of the i l
25 exercise.
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l 1 We included Attachment H because that is the l 2 product of FEMA's preexercise evaluation of transportation 3 resources.
4 So those two documents limited the Extent of Play 5 that needed to be demonstrated regarding transportation .
6 resources. .
7 JUDGE SMITH: I see.
8 It's relevant. And as far as reliability, it is 9 reliable. It meets all the reliability standards.
10 I still think, however, that there is a void in 11 your testimony. Not that your testimony isn't accurate.
12 But the testimony does not support -- the attachment does 13 not support -- Attachment H provides the survey but it does 14 not support the following statement: that FEMA determined 15 that the transportation resorrces are adequate.
16 Maybe your problem is simply, you don't have a 17 reference or a citation. Maybe that's the only problem you L8 have.
19 THE WITNESS: (Callendrello) That's correct.
20 MR. LEWALD: Your Honor, if I might submit.
21 The problem that then exists is not including the 22 covering letter to the FEMA survey. .
23 JUDGE SMITH: The "H?" FEMA "H?"
24 MR. LEWALD: Along with "H" that was on the part
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25 of the Massachusetts Attorney General Exhibit No. 73.
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l-1 REBUTTAL NO, 23 PANEL ~-. CROSS 23023 i
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JUDGE SMITH: But I don't see it in the letter {
2 from Donovan to Krimm on October 21st. I see simply --
3 MR. LEWALD: It says: Attached is a documentation 4 of our verification effcrts. We found numbers of vehicles."
. 5 I'm referring to the last full paragraph of that letter.
6 This is under the date of March 21, 1988.
7 (The Board confers.)
i 8 JUDGE SMITH: I see what you're stating about the !
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9 memo from Donovan to Krimm.
10 Where would you have been if Attorney General had 11 not offered Exhibit 73 into evidence?
12 MR. LEWALD: We have enough problems with what we 13 have --
14 JUDGE SMITH: Without speculating on it.
V 15 (Laughter) 16 JUDGE SMITH: That is not the fact, so you don't 1 17 have to worry about it.
10 MR. LEWALD: We try to be more resourceful.
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REBUTTAL NO. 23 PANEL - CROSS 23024 1 Q Now, it's correct that those were the only state !
2 police in the field with the qualifications you have ,
3 described, correct, from Troop A? <
4 You have identified certain additional -
5 participation by people at the IFO or at dispatch. But .
i 6 actually went in the field and staffed these points, that's i 7 the extent of it, correct?
8 A (Callendrello) That's correct.
9 Q Now is it fair to say that -- well, can you tell 10 me how were the traffic and access control points determined 11 for Extent of Play as to which would actually be exercised?
12 Do you know, Mr. Gram? i 13 (Pause . )
14 A (Gram) I can't recall specifically. But I 15 remember during the discussions of picking the traffic and 16 access control points that would be activated by the local 17 communities -- by local officials in the participating local 18 communities and by state police for nonparticipating 19 communities, we either referred to -- I believe it's Volume 20 6 of the New Hampshire plan, which is the ETE study, or the
.. l 21 traffic management manual. I believe that's also part of 22 volume 6. -
23 Q Well, when you say you referred to volume 6, what l 24 criteria were used to select the traffic control points and ,
l 25 access control points for the exercise?
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REBUTTAL NO. 23 PANEL - CROSS 23025 1 MR'. FLYNN': Excuse me. Could I ask for a 1 2 clarification?
3 'Do you'mean' selection of the traffic control 4- _ points at the_ time of the exercise or at the time the Extent 5 of Play was negotiated?
6 MR. BROCK: Well, maybe I am making an assumption 7 here.
8 BY MR. BROCK:
9 Q As described in the Extent of Play at page 3.3-30, 10- now that identifies two traffic and two access control 11 points, correct?
12 .A. (Callendrello) That's correct.
13 Q And were those the points --
14 -A (Callendrello) For state police.
15 Q For state police.
16 Were those the points actually exercised by state 17- police during the exercise?
18 A (Callendrello) Yes, they were. ,
19 Q. And.when I say -- I'm sorry, go ahead.
20 A (Callendrello) The general guidance, I can give 21 you. I don't know the specifics on how a specific point in
- 22 a town was selected.
< 23 But for each town that was expected to 24 participate, there was one point to be manned by local 25 police in that town. There were two traffic control points I
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REBUTTAL NO. 23 PANEL - CROSS 23026 1 that were established for state police manning, and those 2 were in communities that either don't normally man them, or 3 were considered nonparticipating communities such as 4 Hampton. And then there were two access control points !
5 selected. .
6 Q All *ight. And just so that I'm clear then, the 7 ones actually e::tercised by Troop A troopers are the ones 8 identified at page 3.3-30?
9 A (Callendrello) Yes.
10 Q What criteria were used to select those particular 11 points for the exercise?
12 Mr. Gram, do you know?
13 A (Gram) No , I do not. I cannot recall.
14 Q When you just indicated that Volume 6 of the New 15 Hampshire plan was consulted, the ETE study, does that 16 refresh your memory at all as to what people were looking 4
17 for in reviewing that volume and to select the points?
18 A (Gram) As I stated before, I can't recall what 19 specific criteria we applied. But I do remember going to 20 the ETE studies and the traffic management manual. And just 21 based on my knowledge of the process, we would have been 22 looking for traffic control points, you know, that weren't -
23 out-of-the-way traffic' control points or weren't out-of-the-24 way access control points, that they were main routes 25 usually.
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I REBUTTAL NO. 23 PANEL - CROSS 23027 1 Q I see.
2 So at least in your mind there was some hierarchy 3 of the various traffic and access control points. Some of L 4 them'being more in the mainstream evacuation routes, and
. 5 those would be the ones that, in your judgment, were more 6 focused upont is that correct?
7 A (Gram) Yes, that's my best recollection of the 8' process. You know, I can't specifically say that's exactly 9 what happened in every control point. But that was the 10 general process that we went through. ,
a 11 Q All right, you wanted --
12 A (Gram) Thought process.
13 Q Excuse me.
14 You wanted to pick what were important or 15 significant' traffic and access control points to be 16 exercised, correct?
17 I mean, is that a fair statement?
18 A (Gram) I would say that generally, yes, that was 19 the general intent. There may have been some access or 20 traffic control points that may not have been a major 21 traffic control point but may have been a-more complicated
- 22 traffic control point.
23 As an example, the one that was activated for the 24 State of Maine involved three different agencies: a local 25 community, a local county and the State of Maine actually I
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REBUTTAL NO. 23 PANEL - CROSS 23028 1 manning a traffic and access control point.
2 Q Well, Mr. Callendrello, you would agree that in 3 the New Hampshire plan traffic control points and access 4 control points have been ' there is a hierarchy of those 5 points, correct, from most significant and then I believe .
6 those are numbered 1, and then in descending order as they 7 become less significant in terms of impacting on ETE.
8 There is such a hierarchy, correct?
9 A (Callendrello) There is a hierarchy that I'll i
10 call a manning sequence. There is a manning sequence on 11 when particular points should be manned during an evacuation 12 of any specific region.
13 Q And the manning sequence reflects the fact, does 14 it not, that you want to man the TCPs which impact the most 15 on an evacuation time, correct? You want to get those 16 staffed first.
17 You want those staffed first, correct?
18 A (Callendrello) You want the most important points ,
19 staffed first.
20 Most important obviously being those that assist )
I 21 evacuation, and Mr. Lieberman talks about the parameters on l l
22 what makes a traffic control point important. There are -
23 others besides making the ETEs short.
24 It may be to increase capacity, to provide 25 reassurance to motorists, things like that, some of which i 1
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i REBUTTAL NO. 23 PANEL - CROSS 23029
,_s 1- affect evacuation time, some of which don't.
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Qq_,)/ 2 Q All right, and --
3 A .(Gram) Excuse me.
-4 Q Oh,'I'm sorry.
5 A I might add it also depends on protective (Gram) 6 action recommendations and what -- as an example, what ERPAs 7 are being -- protective actions are being recommended for. ,
8 So your priorities can change from ERPA to ERPA, or your 9 manning sequence-from ERPA to ERPA, depending on wind 10 direction and protective actions that are decided.
11 Q All right. But if you are talking about basically 12 a full EPZ evacuation, that's when the hierarchy comes into 13 play that you have identified that Mr. Lieberman has 14 referred to.
(N 15 Isn't that correct, Mr. Callendrello?
16 A (Ca11endre11o) Yes. There is'a manning sequence
.17 for a full.EPZ evacuation. There is also manning sequences 18 for evacuations of areas less than that.
19 JUDGE SMITH: There is a sufficient chain of nexus 12 0 between H and C and Exhibit --
21 JUDGE COLE: MAG 73.
. 22 JUDGE SMITH: Massachusetts Exhibit 73, although 23 '
it's not as neat as some presentations I have seen or 24 typical of them. But it is there. I mean there is an
- 25 evidentiary causal linkage that brings it all together.
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RE2UTTAL NO. 23 PANEL - CROSS 23030 i It's all reliable. It is all official. It is all in the l l
2 course of their program. It is all of the information that 3 they by regulation have to rely upon. It has regulation 4 regularity. It has all the elements of reliability. And 5 your objection is overruled. -
6 But I have to confess, without extended
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7 discussion, I could not have put together the events leading 8 to that statement in the testimony.
l 9 The motion to strike is denied. I 10 BY MR. BROCK:
11 Q Mr. Callendrello, so it's your testimony that a 12 necessary component, or demonstrating the capability of 13 transportation resources to implement the plan occurred 14 prior to the exercise in this FEMA survey.
15 A (Callendrello) Yes, consistent with the guidance 16 that Mr. Krimm provided Mr. Thomas that the focus of the 17 transportation issue should be on pre-exercise evaluation.
18 Q And if there had not been that survey done prior 19 to the exercise, the demonstration of transportation 20 resources that occurred on the exercise day in your opinion 21 would not have been sufficient to demonstrate the Objective 22 187 -
23 A (Callendrello) No , I didn't say that.
24 Q I am asking do you agree with that.
25 A (Callendrello) No, I do not.
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REBUTTAL NO. 23 PANEL - CROSS -
23031 1 Q And, Mr. Callendrello, given that survey was done .
-(C\ ,) 2 prior to the exercise, in your opinion, would it affect i 3 FEMA's conclusion, assuming it made thet conclusion, that i
4 the transportation resources were adequateHas indicated in
. 5 the survey? ,
6 Would it affect that judgment if on the day of the ;
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1 7 exercise the majority of the bus companies declined to 8 part'icipate in the exercise? -
9 A (Callendrello) I don't know what FEMA would find.
i 10 Q Sir, I'm asking if, in your opinion, you have --
11 well, let me withdraw that.
12 You have provided Attachment H to your testimony 13 in this case, correct?
14 A (Callendrello) That's correct.
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15 Q All right. Which involves a pre-exercise survey 16 conducted by FEMA of transportation resources, correct?
17 A (Callendrello) Correct.
18 Q And part of the purpose for that survey, which you 19 have offered to the Board here, is to demonstrate the 20 capability to actually implement the New Hampshire plan, 21 correct?
- 22 A (Callendrello) This is the New Hampshire Yankee 23 ORO plan.
24 Q I'm sorry. The ORO plan.
25 A (Callendrello) The SPMC.
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REBUTTAL NO. 23 PANEL - CROSS- 23032 1 Q Well, would it undermine the reliability of that 2 survey if on the day of the exercise the majority of the bus f 3 companies contacted refused to participate in the exercise?
- 4 MR. LEWALD: Objection. We can "what if" the 5 entire plan out of existence. , ,
6 MR. BROCK: I'll withdraw the question.
7 JUDGE SMITH: Mr. Brock.
8 MR. BROCK: Yes, Your Honor. ,
i 9 JUDGE SMITH: When would you like to break? If it 10 isn't soon, I would like to take a short break.
11 Are you comfortable that you are going to be able 12 to conclude tomorrow?
13 MR. BROCK: Yes, Your Honor. I don't expect I'll 14 have much more. And based on what I have heard from other 15 counsel, I expect that everyone would be finished by 16 tomorrow. That's my understanding, at least.
17 I do not have many more questions, but it would be i 18 fine with me to break at this point if that's Your Honor's 19 pleasure.
20 JUDGE SMITH: Well, go on for awhile, and let's 21 break.
22 Let's take a very short break here. ,
23 MR. BROCK: Okay.
24 (Whereupon, a recess was taken.)
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REBUTTAL NO.-23 PANEL ' CROSS 23033
' l'- BY MR. BROCK:
Q Mr. Callendrello, is it a fact that, for purposes 3 of the 1988 exercise in New Hampshire, the only state 4 troopers utilized who actually performed functions in the u .. 5 exercise came from Troop A7 6- Is that your understanding, or do you know?
7' ' A' (Callendrello) Yes,.it is.
8 Q That is your understanding?
9 A (callendrello) Yes, it is.
10 Q- And would you state, first of all, how many 11 troopers from Troop A participated in the exercise? Do you
'12 recall?
13 Was that in accordance with the Extent of Play for 14 Objective 20?
15 A (Callendrello) If you would.just give me one
- 16. moment,' I'll find it.
17 Q Okay.
18 Well, the page reference I have, Mr. Callendr'ello, 19 is 3.3-30 in the Extent of Play document.
20- (Pause . )
21 A (Callendrello) . That's consistent with the
.. 22 information I have from the exercise. That four state 23 troopers participated.
24 Q And they were all from Troop A, correct?
25 A (Callendrello) I'm sorry, let me just correct a
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REBUTTAL NO. 23 PANEL - CROSS 23034 1 that. That's not a correct answer.
2 Four state troopers manned traffic control points.
3 Other Troop A personnel participated in terms of being in 4 the incident field office, also being involved in their own 5 dispatch facilities. ,
6 So there were others, but four manned traffic i 7 control points in the field.
8 O And to be precise, there were two traffic control 9 points staffed and two access control points staffed, 10 correct?
11 A (Callendrello) That's correct.
12 Q And two troopers for each, correct?
13 A (Callendrello) No.
14 Q All right, how --
15 A (Callendrello) One trooper for each. North 16 Hampton, it's Point D-NH-02. Hampton, D-HA-01. Those are 17 the traffic control points.
18 And then the access control points were EP-1 and 19 NW-3.
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REBUTTAL NO. 23 PANEL - CROSS 23035
1' Q And it's accurate, is it not, that Mr. Lieberman 2 in this proceeding.has submitted testimony identifying those 3 TCPs that are, in his opinion, the most significant as I
4 impacting on ETE.'
.. 5 Do you recall,that, Mr. Callendrello?
6 JUDGE SMITH: On full evacuation?
7 MR. BROCK: Correct.
8 THE WITNESS: (Callendrello) I recall he-9 testified regarding traffic and access control points. I 10 think more legitimately his input as to which traffic 11 controls. points are important is reflected in the manning 12 sequence.
13 BY MR. BROCK:
'~' 14 All right.
Q.
15 .Well, I don't have the -- the cite I have, and I'm
-16' sorry it's not a complete cite, but it's from Applicants' 17 direct testimony No. 7 (evacuation time estimate and human 18 beh,avior in emergency) dated November 5, 1987 at pages 67 19 and 68.
20 Let me show you -- again, this is taken, I will 21 represent, from that testimony, although this is not, in
. 22 fact, the testimony, and see if that refreshes your memory 23 with respect to Mr. Lieberman's discussion on that point.
24 (Document proffered to witnesses. )
25 THE WITNESS: (Callendrello) I've had a chance to (202) 628-4888
REBUTTAL NO, 23 PANEL - CROSS 23036 1 read it.
2 (Counsel approaches witness tab'le.)
3 MR. BROCK: Thank you.
4 And because I only have one copy if I could just 5 stand right her,e. .
6 BY MR. BROCK:
7 Q Does that refresh your memory that, in fact, Mr.
I 8 Lieberman has identified three TCPs in the State of New 9 Hampshire that, in his opinion, -- well, should have top 10 priority as to manning sequence in a full EPZ evacuation?
11 A (Callendrello) You have drawn an implication from 12 what he said.
13 He said that there are three locations that have 14 been designed primarily as capacity enhancing, and he lists 15 the three.
16 And in the text that precedes it he does say that 17 there are several functions -- and I'm paraphrasing what his 18 testimony is -- that there are several functions for a ;
19 traffic control point. The functions in decreasing 20 importance include, and the first one is, enhance roadway 21 capacity. So that this would -- these three points would 22 have been designed primarily to achieve what Mr. Lieberman -
23 calls the most important function.
24 Q And for the record if you would identify those .
25 three?
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REBUTTAL NO. 23 PANEL - CROSS 23037 1 A (Callendrello) A-HB-03; A-HB-04; and D-HA-02.-
( 2 Q Thank you.
- 3 JUDGE SMITH: Old friends.
4 THE WITNESS: (Callendrello) 'They sure seem like
. 5 it. .
6 BY MR. BROCK:
) ,7 -Q Ecne of those points were tested in the exercise; 8 correct?
9 No staffing of those points?
10 A (Callendrello) What was the third point?
11 Q D-HA-02.
12 A (Callendrello) No, none of those points were 13 staffed.
-(g j 14 Q It's also fair to say, none of the TCPs in the "C/ 15 beach areas were exercised or staffed either; correct?
16 A (Callendrello) Could I just have one moment to 17 confer.
18 JUDGE SMITH': Well, these are not in the beach 19 areas? You exclude these from being considered in the beach 20' areas?
21 MR. BROCK: I'm sorry, you mean the ones that were
.- 22 just identified?
23 JUDGE SMITH: Yes.
24 -
MR. BROCK: Actually, I believe, Your Honor --
25 JUDGE SMITH: Those are in the towns.
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REBUTTAL NO. 23 PANEL - CROSS 23038 1 MR. BROCK: I believe two of those are in Hampton ,
2 Beach.
3 JUDGE SMITH: Yes.
4 MR. BROCK: And the third is in Hampton, but not t 5 in the beach; that's my recollection. ,
l 6 But there are other TCPs in the beach area.
7 JUDGE SMITH: Oh, I understand your question. '
8 (Pause) 9 THE WITNESS: (Callendrello) The one point in 10 Hampton that was staffed by state police was D-HA-01 and 11 that was at the intersection of Route 101C and Route 1.
12 That's not at the beach, but that's at that intersection 13 right near Route 95.
14 BY MR. BROCK:
15 Q All right.
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16 So you would agree that none of the beach TCPs 17 were staffed or exercised; correct? 4 1
l 18 A (Ca'11endrello) I just need to check the Seabrook 19 traffic control point.
20 No , that's not at the beach area. i I
21 So, yes, I would agree with that.
22 Q Now, would you also agree that during the 1986 , ,
1 23 exercise that certain state troopers unfamiliar with the 24 area, the EPZ, had trouble locating where they needed to be 25 during the exercise?
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REBUTTAL NO.-23 PANEL - CROSS ~
23039
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. 1, A. (Callendrello)' I don't recall if that was the 2 case or not. I'have no knowledge of that.
3; Q Let me r'efer you to Appendix B-36 of~the FEMA 4 report.
.., 5 And in that first left hand column it suggests, 6 does it not, that there were state police troopers not 7 familiar with the area who had some difficulty, they needed
.8 better maps; correct?
9 A (Callendrello) It was an area requiring 10 corrective action. An ARCA that said, stats police troopers
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11 indicated that better maps were needed, especially for 12 troopers who were not familiar with the area.
13 And then there was a proposed action, which I know 14' the state accomplished of developing the traffic management 15 manual which contain the maps describing the location and 16' how the traffic control point should be set up. And those 17 are to be placed'in each squad car.
18~ Q It's fair to say that the New Hampshire plan 19 contemplates that state ' troopers from all over the state, at 20 least under certain emergencies, would be called on to come 21 to the EPZ and respond to a Seabrook emergency; correct?
. 22 A (Callendrello) They could be called from anywhere 23 in the state. The state police provides a pool of resources 24 that would be used to supplement local resources. Possibly 25 in a compensatory fashion. Well, in a compensatory fashion
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l RBRUTTAL NO. 23 PANEL - CROSS 23040 1 or as part of their own manning sequence.
2 Q Well, you would agree that the New Hampshire plan 3 provides for mobilization of state police troopers from all 4 over the state --
5 JUDGE SMITH: We found that. That's given. ,
6 MR. BROCK: All right. !
7- THE WITNESS: (Callendrello) Yes.
8 BY MR. BROCK:
9 Q But notwithstanding the fact that there was some 10 problem in 1986 with troopers unfamiliar with the area 11 exercising properly, that no troopers outside of the 12 immediate area were included in the 1988 exercise? And by 13 'immediate area I mean Troop A?
14 A (Callendrello) As I indicated, the corrective 15 action was taken to resolve that area requiring corrective 16 action. That was the development of the traffic management 17 manual, and the placement of that in Troop A.
18 What happens is that troopers report to Troop A to 19 get their assignment and that's when they would get their 20 map and find their location.
21 Q My point is, Mr. Callendrello, no troopers outside 22 of Trooper A troopers actually went through that procedure, .
23 received a map, and went to a designated location in the 24 exercise? That was not done;, correct?
25 A (Callendrello) That's correct.
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I PEBUTTAL NO. 23 PANEL - CROSS 23041 1 MR. BROCK: Your Honor, this would be a good time i
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.( 2 to break.
i 3 DVDGE SMITH: Anything further before we adjourn 4 tonight?
. 5- (No respons,e) .
6 JUDGE SMITH: All right, n~
7 We will meet tomorrow at 8:30.
.8 (Whereupon, at 5:05 p.m. the hearing was adjourned 9 to reconvene tomorrow morning, at 8:30 a.m., Friday, 10 May 26, 1989.)
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CERTIFICATE O,
This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter ,
of:
Name: Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
Docket No: 50-443-OL 50-444-OL (Off-site Emergency Planning)
Place: Boston, Massachusetts Date: May 25, 1989 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
/S/ - ,
a { s (Signature typed) : Donna L. Cook Official Reporter Heritage Reporting Corporation HERITAGE REPORTING CORPORATION O :
(202)628-4888
,