Free Motion to Strike - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 290-3

Filed 02/09/2007

Page 1 of 34

Patrick McDuffie

March 18, 2002 Carlsbad, CA Page 11

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engineering from Texas A & M University from 1955. Post graduate work at Ohio~State in business management. Did not get my master's.
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Are you currently employed? Happily retired. What is your age, sir? Geez, 69. Have you ever been deposed before?
No.

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Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q.

By the way, if you'd like coffee or water, they're here. Thank you. Could you summarize for me your employment.

history after graduating from college? A. Okay. Convar, C-o-n-v-a-r, in San Diego.

Also now known as General Dynamics. I was an engineer in the Atlas missile program. Four years inthe Air Force mostly Wright Field, some part of it flight training .in North Carolina. After that, I went to work for General Precision which was in commercial navigation guidance and business, worked in Huntsville, Alabama for General Precision and for Ford Motor Company aerospace division, it's Ford Aerospace now, also in Huntsville. Then moved to California in '64 and worked as the manager of marketing for the defense

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Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM

Document 290-3

Filed 02/09/2007

Page 2 of 34

Patrick McDuffie

March 18. 2002 "Carlsbad, CA

Pagei2

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products group at Ford Aerospace or Ford Aeronautronic, A-e-r-o-n-a-u-t-r-o-n-i-c, as it was known in those days. After Ford, I worked for Merrill Lynch in Santa Ana, eight years as a stockbroker, eight or nine. And left there to go to Columbia Engineering in Richland, Wash'ington which was a job shop type operation. I was about to buy a partnership in it when the. world fell in so I didn't buy. Q. A. What year was that, just a time frame on it? '77, '78, somewhere in that area. And after

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that, I worked at Battelle, B-a-t-t-e-l-l-e, in Richland for 16 years at which time I retired. Q. Could you tell me the years at which you

worked at Battelle? A. Probably '78 to '95. Or '95 minus 16. That's

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the best way to go at it. Q. A. Q. A. Q. A. history. '95 minus 16; okay. Memory is the second thing to go. Sounds like about 1981 to me? Sounds good. Or maybe no, 1979. My math is not so good. Whatever. Pick a number. So that's the Left there, all the kids got out of college,

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.at Washington State, WSU, they all moved to California. I said what the hel! are we doing here. Came back to

Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM

Document 290-3

Filed 02/09/2007

Page 3 of 34

Patrick McDuffie Carlsbad, CA

March 18, 2002

Page .13

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California. Q. A. You moved back down herein 19957 No. It was '97, I believe. February of '97. And you've been retired here in California

Q.
A. Q.

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since 1997? Yeah. Retired in '95. All right. I'd like to focus on your work at

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Battelle. Can you tell me what your duties were during the 16 years you worked there, tell me about what you did? A. ¯ Sure. I started off in what they call program management which was Battelle was trying to become certified by the government as some special management, have a special management capability based on -- are

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you familiar with PERT charts and all of. that? Q. knowledge. A. Program management by the books is what it I would make no assumptions about my

amounts to. Spent four years do~ng that, writing procedures for Battelle on how to implement the management of programs, supposedly the most cost-effective method to meet their objectives. Then I worked on loss of coolant program, which was a nuclear program we ran out of Battelle and used the nuclear facilities, Chalk River in Canada,

Alderson Reporting Company, Inc, 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM

Document 290-3

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Page 4 of 34

Patrick McDuffie Carlsbad~ CA

March -18, 2002 . Page 49

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Northwest Labs; is that the same o~ganization? A. Battelle is the co,orate structure out of

Ohio. Columbus, Ohio. PNL, Pacific Northwest Laboratories, operated an independent Battelle facility and managed the government operationsat Richland, Washington. Partly government operations, the research part. It's since been renamed Pacific Northwest National Laboratory, PNNL. It's operated by Battelle/PNkrL for DOE, DOE/ER, I think, research department. Q. A. Q. A. Q. So your corporate employer was Battelle? Yes. And within Battelle you were working at PNL? PNL. That's fine, Can you tell me a little bit about what was

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happening contractually between the Department of Energy and Battelle/PNL? Do you understand my .question? MR. BANES: Objection. Vague. BY MR. TOMASZCZUK: Q. A. Do you understand my question? Yes. Every five years DOE evaluated

Battelle's abilfty to meet their needs at the research lab in Pacific Northwest Laboratory. If we were doing a good job, we always did, they renewed the contract.

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Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM

Document 290-3

Filed 02/09/2007

Page 5 of 34

IN

THE

UNITED

STATES

COURT

OF

FEDERAL

CLAIM{S

YANKEE ATOMIC ELECTRIC COMPANY CONNECTICUT YANKEE ATOMIC POWER COMPANY MAINE YANKEE ATOMIC POWER COMPANY FLORIDA NORTHERN POWER & LIGHT COMPANY

STATES

POWER COMPANY

DUKE POWER, A Division. of DUKE ENERGY CORP.) INDIANA MICHIGAN POWER COMPANY SACRAMENTO MUNICIPAL UTILITY DISTRICT SOUTHERN NUCLEAR OPERATING COMPANY, COMMONWEALTH EDISON COMPANY BOSTON EDISON COMPANY GPU NUCLEAR, INCORPORATED WISCONSIN ELECTRIC POWER COMPANY POWER AUTHORITY OF THE STATE OF NEW OMAHA ZUBLIC POWER DISTRICT NEBRASKA PUBLIC POWER DISTRICT TENNESSEE VALLEY AUTHORITY, Plaintiffs, YORK et al. ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES, Defendant. DEPOSITION OF ROBERT L. MORGAN March 21,and 22, 2002

) )

Volume I, Pgs. 1 - 212

Reporting

40

Case 1:00-cv-00697-JFM

Document 290-3

Filed 02/09/2007 Page 6 of 34 R. Morgan / Blanton

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Mr.

Qo

Are you currently employed,

Morgan? A.
No.

Q.
A.

Are you retired? Yes. How long have .you been retired? I retired from the Government in

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Q.
A.

1988, worked for a small.8(a) company in Washington, D.C., for five years after that, and have consulted with several people and companies up until last year. Q. Let's go backwards. Who have you

consulted for. since you worked for the 8 (a) company? Let me ask you a different way since that rocked you back in your chair~ A. corporations. Q. A. On what subjects have you consulted? Mainly defense program activities There are numerous companies and

within the Department of Energy. Q. ¯ Have you consulted for any electric

utilities that you know of? A. Q. A. C & C Yes. Who are they? It was the V.G. Sumner plant in COURT REPORTING 541/485-0111

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Document 290-3

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South Caroline when they were proposing to use their reactor for tritium production. Q. A. All right, sir. Anybody else?

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Any other utilities? Yes, sir.

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A.
Q.

None. Have you consulted at all with the

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United States Department of Energy?
At

Indirectly for their contractors. For which DOE contractors have you

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Kaiser in Los Alamos. Sandia in I can't recall of any other

dirActly for Department of Energy. Q. Since you left the 8 (a) company,

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have you consulted with any entity on issues that involve the management, storage, or disposal of spent nuclear fuel?
Ao

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I have not. What was the 8 (a)company that you

worked for? A. Meta, M-e-t-a. What business is it in? We were doing environmental

Q.
A.

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assessments for the Department~ of Energy. C & C COURT REPORTING 541/485-0111

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Q.

And the years you worked for Meta,

that was 1988 through 19937 Is my math right? A. I think there was a year fn between

-- or two years thit I consulted. I started working for them in 1990 and ended in 1995. Q. Did any of your work for Meta

involve spent nuclear fuel in any way? It did not. Is there a two-year period between '88 and '90 when you also consulted? understand that correctly? Yes. That's correct. Did I

Q.

Did any of your consulting work

during that period involve spent nuclear fuel? A. Q. No. Did any of that work -- was any of

that work for electric utilities during that period of time? A. I think it was that period of time

that I did the consulting at the V.G. Sumner plant.

Q.
A.

On tritium production? Yes. I'm not sure of the dates. Does that take us back to the date

Q.

of your retirement from the Government? C & C COURT REPORTING 541/485:0111

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A. Q. retired A.

Yes. Wha{ was your position when you from the Government? Manager, the Savannah River

Operations Office in Aiken, South Carolina. Q. What is A~ Q. What does the Savannah River site -the Savannah River site? What is it? Yes, sir. What is it? It's basically a material production the production of plutonium and tritium

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A. site for

for nuclear weapons. It ran four production reactors, area, and two separation canyons, waste tank tritium loading facilities. Are there other resource and activities that go on at Savannah

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Q. development

River other than weapons production? A. Q. A. Q. A. No. How long were you in that job? Seven years. So that takes us back to 19817 That's correct. No. Excuse me.

Eight years. Eight years as manager, then seven years as deputy manager. So I was at Savannah River for 15 years. C & C COURT REPORTING 541/485-0111

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1

During that period I had various details to Washington, D.C., where I commuted. Q. Describe for me, if you would, what

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a "detail" is in U.S. Government parlance? A. A detail is an assignment, to a

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specific job at another location. Q. Check my~math, but in some form or

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fashion you were at Savannah River either as manager or deputy manager from 1973 to 1988. that a'ccurate? A. correct. .Q. What details were you assigned to '73 .to ~'88. Yes. Yes, that's
Is

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during that 15-year periqd away from Savannah River? A. Acting Assistant Secretary for

Defense Programs on two occasions. Q. A. Q. A. you. The Do you remember the dates? No, I don't. All right, sir. I think I can construct that for first time was inFebruary after the

inauguration of President Reagan. And I held that job for about six months until a political appointment was made. C & C COURT REPORTING 541/485-0111

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Then was detailed to Washington just 2 after the passage of the Nuclear Waste Pblicy Act from February -- I guess it was 1983 -through the about one-year period. I was again detailed as .Acting

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Assistant Secretary for Defense Programs, again awaiting a new appointee in that position, and that lasted for approximately six months. Q. What was the scope of your authority

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as Acting Assistant Secretary for Defense Programs? A. What does that include? The entire weapons complex, which

included the laboratories -- Sandia, Livermore, Los Alamos -- and all the weapon production facilities, which included Savannah River; Rocky Flats; Richland; Oak Ridge, Tennessee. And that's all I can -- oh, Pantex plant in Amaril!o and Bendix plant in Kansas City. Approximately about a $5 billion operation. Q. After your detail to -- your second

detail as Acting Assistant Secretary for Defense Programs, did you return to Savannah River? A. Q. Yes, I did. And did you stay at Savannah River

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until your retirement? C & C COURT REPORTING 541/485-0111

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A. months. correct. that? A.

That's correct. There were no further details after

No.

Q.

As Acting Assistant Secretary for

Defense Programs, were you involved at all.in the issues of spent nuclear fuel management or storage? A. Only the spent nuclear fuel from the Nothing to do with

defense program activities. commercial fuel. Q. All right.

At that time was defense

spent fuel intended to be part of the DOE program that was initiated under the Nuclear Waste Policy Act? During the last detail, that's

Q.

That would have been from the first

quarter of '84 until -Mid -- until mid -I didn't get how long that lasted. I think that one was about six

Q.

As manager of the Savannah River

site, did you also have some involvement with C & C COURT REPORTING 541/485-0111

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spent fuel produced in weapons production? A. Q. Y~s. In that job did you have any

involvement in the DOE spent fuel program at all? A. The commercia! spent -Yes, sir. None. All right. Prior to Savannah River,

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Q.
A. Q.

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just briefly describe your career f0r me, prior to 1973. A. I had graduated from the Military

Academy in 1952, was commissioned, spent 13 years in the Army Corps of Engineers. First assignment was the Korean War; second in Japan; third, 82nd Airborne at Fort Bragg; fourth was a year in Indonesia as a special assistant to the Ambassador for Civic Action; and then resigned my commission in 1965 and ~went to work for the DOE -- or the Atomic Energy Commission at that time. Q. A. tool What was your job at the .AEC? Director of the heavy water organic

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reactor program at Savannah River for one

year from '65 to '66. C & C COURT REPORTING 541/485-0111

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Case 1:00-cv-00697-JFM
Ben Rusche

Document 290-3

Filed 02/09/2007

Page 14 of 34
May 16., 2002

Columbia, SC

UNITED STATES COURT OF FEDERAL CLAIMS YANKEE ATOMIC ELECTRONIC COMPANY, PLAINTIFF,
VS.

) CA NO. 98-126C

3 4

) ) )

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7 8

THE UNITED STATES, DEFENDANT.
)

MAINE YANKEE ATOMIC POWER COMPANY, PLAINTIFF,
VS.

) CA NO. 98-474C

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II

THE UNITED STATES, DEFENDANT.

) ) ) ) ) ) )

13 14

CONNECTICUT YANKEE ATOMIC POWER COMPANY, PLAINTIFF,
VS.

) CA ~0'. 98-1546
) .) ) ) ) ) )

15 16

THE UNITED STATES, DEFENDANT.

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Alderson Reporting Company, Inc. " .......... 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Ben Rusche Columbia, SC

May 16, 2002

Pagel3

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the other things that I'm doing, I'm doing through~ MTR. Q; Allright. So I think you just may have

answered this question, butthis Management Technical Resources you described as your consulting company, would you say generally you are employed in the consulting business? A. Q. Beg your pardon? Are you today generally employed in a

consulting business? Is that what you do for a living? A. On a part-time basis, yes. Part-time basis? Yes. It's far from full-time. And the other part-time is what? Are

Q.
A.

Q.
you -A.

My wife's husband and my son's father

and so forth. Q. A. Play golf? I occasionally go out, but some would

argue whether I play. Q. All right. What business is this

Swedish nuclear company in? And are they -- is it a generating company? A. No. They are a waste treatment company.

Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Ben Rusche

May 16, 2002

Columbia, SC
Page 39

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Waste Policy Act? MR. MILLER: THE WITNESS: MR. MILLER: answer.. THE WITNESS:. I did not, other than being aware with the Secretary that it was a matter that needed urgent attentiono Q. (Mr. Stouck) So during '81, '82 .you Objection. Compound. What does that mean? Go ahead. Go ahead and

were aware or is it true that the legislation was being developed at that time, do you know, or -Ao. Q. A.. Q. A. Q. A. Q. I do not know, but I presume so. But you weren't working on it? I was not. Directly? Not directly. Or indirectly? Or indirectly. Okay. Back up to you were appointed as

director of OCRWM, I believe, in early 1984; is that right? Do you recall when you started? A. was? When I started or when the appointment

Q.

Well, when was the appointment? Let's

start with that.

Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Document 290-3

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Ben.Rusche

May 16, 2002

Columbia; SC
Page40

1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 .18 19 20 21 22 23 24 25

A.

I think it was in January of '84 that I

v±sited the White Hous~. And the appointment followed thereafter° Qo A. And when did you actually start working? March, I believe, of '84 I was

confirmed. Q. Okay. And can .you tell me generally --

we're going to come back to some of these things and go into a little more detail~ but from 1984 -when did you leave the Department? I think you said -- earlier today you said early 1988, I think is what you said? A. I believe-- I believe that my actua!

retirement date from the Department was late November of '87. Q. Okay. Well, starting in March of 1984,

you know, when you started as director can you just tell me first generally, and as I say we'll come back to someof these things in more detail, but what were your major duties? What were you working on, let's say, when you first got there? .What was the task? A. I thinkthe most explicit statement that

I could refer to would be my confirmation statement.

Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Document 290-3

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Page 18 of 34

1 2

IN THE UNITED STATES COURT OF FEDERA$.CL~.~MS

3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 22

YANKEE ATOMIC ELECTRIC COMPANY; CONNECTICUT YANKEE ATOMIC POWER COMPANY; MAINE YANKEE ATOMIC POWER COMPANY; FLORIDA POWER& LIGHT COMPANY; NORTHERN STATES POWER COMPANY; DUKE pOWER, a Division of DUKE ENERGY CORP.; INDIANA MICHIGAN POWER COMPANY; SACRAMENTO MUNICIPAL UTILITY : 98-.488C, 98-614C,

: 98-621C, 99~449C, : 00-440C, 00-695C, : "00-703C, 0i~I15C, : 01-I16C, 01-249C
X

(Caption continued on the next page)

Deposition ofLAKE H. BARRETT Washington, D. C. Monday, April 22, 2002 9:31 a.m.

Job No.: 11792-4 Pages 1 through 272, Volume 1 Reported by: . Diane~Gomez, RPR

L.A.D. REPORTING COMPANY, INC.
1100 Connecticut Avenue, NW - Suite 1150, Washington, D.C. 20036 ¯ 202.861.3410
Fax: 202,861.3425 ¯ 800.292.4789 ¯ Wehsite: [adreporting.com ¯ E-mail: [isa@[adreporting.com

NATIONWIDE COURT REPORTERS AND VIDEOGRAPH ER.'

53

Case 1:00-cv-00697-JFM

Document 290-3 LAKE 02/09/2007 Page 19 of 34 DEPOSITION OF Filed H. BARRETT, VOLUME 1

CONDUCTED ON MONDAY, APRIL 22~ 2002
2 1 2 DISTRICT; SOUTHERN NUCLEAR OPERATING COMPANY, et al.; COMMONWEALTH EDISON COMPANY; BOSTON EDISON COMPANY; GPU : : ~: :

3
4

5 6
7

NUCLEAR, INCORPORATED; wiSCONSIN : ELECTRIC POWER COMPANY; POWER AUTHORITY~F THE STATE OF NEW : :

8
9

YORK; OMAHA PUBLIC POWER DISTRICT;: NEBRASKA PUBLIC POWER DISTRICT; and TENNESSEE VALLEY AUTHORITY, Plaintiffs
V.

:

io
II 12 13 14

THE UNITED STATES, Defendant

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16 17 18 19 20 21 22

(301

762-8282

L.A.D. (202)

REPORTING COMPANY, INC. 861-9410 (800) 292-4789

(703)

288-0026

54

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DEPOSITION OF LAKE H. BARRETT, VOLUME 1 CONDUCTED ON MONDAY, APRIL 22, 2002 194

1
2 3 4

A Q

In the last five years. Before Congress? Have you testified

anywhere in the last five ye.ars other than before congress? A What do you mean by testify? ~~ You~just referred to testimony you gave in

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Q
A

the last five years,~ correct? Oh, Congress. Yes, I've testified before

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Congress regarding storage approval times in the last five years. Q And you testified that the period in

which -- the period that it would take to license an MRS facility would approximate 2.5 years,, correct? A Q It could be done that fast. You testified to Congress that that was an

appropriate projection of the required time, correct? A I believe so. I would have to go back and

(Deposition Exhibit Barrett 5 was marked for identification and was retained by counsel.) Q The court reporter, Mr. Barrett, has handed

you a document marked for identification as Exhibit 5.

(301) 762-8282

L.A.D. REPORTING COMPANY, INC. (202) 861-3410 (800) 292-4789

(703) 288-0026

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DEPOSITION OF LAKE H. BARRETT, VOLUME 1 CONDUCTED ON MONDAY, APRIL 22, 2002 195
1 2 The first page states Annual Capacity Report Briefing for OCRWM Executive Committee, November, there's no date, 1986. Do you have that before you? A Q Yes, I do. Were you a member in November 1986 of the

3 4

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OCRWM executive committee? A Q director, A Q I don't think so. In November 1986 you were a division correct?

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Correct. And yo~ don't believe that in.that capacity

you would have been a member of the executive committee? A

No, I was not then. Have you taken a moment to leaf through

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yogi.

Q
A Q

this document? Okay. I would like to turn your attention, on the

left-hand side it says HQ 0002904. A 290 -MR. CRAWFORD: Wait a minute. Oh, I got

(301) 762-8282

L.A.D. REPORTING COMPANY, INC. (202) 861-3410 (800) 292-4789

(703) 288-0026

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DEPOSITION OF LAKE H. BARRETT, VOLUME 1 CONDUCTED ON MONDAY, APRIL 22,.2002 196
1 2 3 status? A

Positions by decision group, current

Q

Yes. You see under Decisions Group it has

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aggregate acceptance, the first entry, system study on technical basis under review confirms 3,000 MTU per year? A Q I see it. That's consistent with your testimony

today, correct, that -MR. CRAWFORD:
Objection.

MR. CAYNE: Could I finish, counsel. MR. CRAWFORD: Sorry. Q That's consistent with your testimony today

that in 1986 your office was projecting a 3,000 MTU per year acceptance rate, correct? MR. CRAWFORD: Objection, vague. A Q Seems consistent. Do you know what the, or are you familiar

with the system study that is.being referred to in this entry? A Q Not the specific one. Do you have a genera! understanding of the

(301) 762-8282

L.A.D. REPORTING COMPANY, INC. (202) 861-3410 (800) 292-4789 (703) 288-0026

57

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DEPOSITION OF LAKE H..BARRETT, VOLUME 1 CONDUCTED ON MONDAY, APRIL 22, 2002 197 1 2 3 4 5 6 7 8 9 answered~ A
There were various studies done in the

system study being referred to here? MR..CRAWFORD: Objection. Asked and

eighties and also in the very early nineties on system performance rate, you know, what the costs were, schedules were, plausibility of them. Q And. these system studies looked at system issues, correct? A Q Yes. And am I correct that each one of these

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studies to which you've just referred confirmed an acceptance rate, an aggregate acceptance rate of 3,000 MTU per year? MR. CRAWFORD: Well, objection, vague. A I think it's overstated to say it confirmed

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it. It showed that, you know, at 2,000 it does this, at 3,000 it does that, 4,000 it does something different. I don't know if they actually reached an absolute confirmation that 3,000 was the exact number, but generally they supported the system rate of 3,000 was a reasonable rate.

(301) 762-8282

L.A.D. REPORTING COMPANY, INC. (202) 861-3410 (800) 292-4789 (703) 288-0026

58

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DEPOSITION OF LAKE H. BARRETT, VOLUME 1 CONDUCTED ON MONDAY, APRIL 22, 2002 198 1 2 3 4 5 6 7 Q So it's your understanding or your

knowledge that each of the various system studies to which you just referred that were undertaken in the -from the mid-1980s to I think you said the mid-1990s, supported an acceptance rate of 3,000 MTU per year, correct? MR. CRAWFORD: Objection, vague. Objection, assumes facts not in evidence. Objection, mischaracterizes prior testimony. A Q Yes. I'll ask you to turn to page HQ 0002909 of

8
9 I0 II 12 13 14 15 16 17

this same exhibit. A Q Okay. Do you see under the second entry,

allocation of acceptance under consequences of decisions, it says "allocation required to plan maximum storage at some sites." Do you see t~at statement? A Q A
I see it. Do you understand that statement? No. Do you understand that statement to refer

18
19 20

2i
22

Q

(301) 762-8282

L.A.D. REPORTING COMPANy, INC. (202) 861-3410 (800) 292-4789

(703) 288-0026

59

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Alan Brownstein

. McLean, VA ....

April 9, 2002

1 2

IN THE UNITED STATES COURT .OF ]E~'~E"P,~L CLAIMS
-X

YANKEE ATOMIC ELECTRIC COMPANY (98-126C) (MeroW, S.J.) CONNECTICUT YANKEE ATOMIC POWER cOMPANY
6 7

(98-154C) (Merow, S.J.) FLORIDA POWER & LIGHT COMPANY (98-483C) (Wilson, J.) NORTHERN STATES .POWER COMPANY (98-484C) (Wiese,J.) DUKE POWER, A.Division of

8 9 i0
ii

12 13 14 1.5
16

DUKE ENERGY CORP. (98-485C) (Sypolt,J.)
INDIANA MICHIGAN POWER COMPANY

(98-486C) (Hodges, ..J.) "
SACRAMENTO MUNICIPAL UTILITY DISTRICT (98-488C) (Yock, S.J.) SOUTHERN NUCLEAR OPERATING COMPANY, et al. (98-488C) (Yock, S.J.) COMMONWEALTH EDISON COMPANY

17 18
19 20 21

22
23

(98-621C) (Hewitt, J.)
BOSTON EDISON COMPANY (99-447C) (Allegra, J.) GPU NUCLEAR, INCORPORATED

24 25

Alderson Reporting Company, Inc. I 111 14th Street, N.W. Suite 400 t-800-FOR-DEPO Washingtoh, DC 20005

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Alan Brownstein McLean, VA

April 9, 2002

Page 2

1 2 3 4

(00-440C) (Bush, J.) WISCONSIN ELECTRIC POWER COMPANY (00-697C) (Merow, S.J.) : :

POWER AUTHORITY OF THE STATE OF NEW YORK : (00-703C) (Damich, 'J.) : : : :

6

OMAHA PUBLIC POWER DISTRICT (01-I15C) (Bush, J.) NEBRASKA PUBLIC POWER DISTRICT (01-II.6C) (Sypolt, J. ) TENNESSEE VALLEY AUTHORITY (01-249C) (Bruggink, J.) Plaintiffs,.
V.

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:

:Discovery :Judge: :(Judge -xSypolt McLean, Virginia Tuesday, April 9, 2002 Deposition of ALAN BROWNSTEIN, a

THE UNITED STATES, Defendant.

witn~$s~ called for examination by counsel for Plaintiffs in the above-entitled matter, pursuantto notice, the witness being duly sworn by CATHERINE_S. BOYD, a Notary Public in and for the gommonwealth ~f Virginia, taken at-the offices of Shaw Pittman, LLP, ~650 Tysons

Alderson Reporting CQmpany, Inc. 1 ! 1 ! 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Alan Brownstein McLean, .VA

April 9, 2002

Page 74

1 2 3 4

acceptance, it shows 2,200 pre-1998, yes. ¯ Q. Okay. And the first table that we looked at, the one at page 26, makes no or does not rely upon the availability of anMRS, is that correct? A. Q. That's correct. I'm going to hand you, Mr. Brownstein,

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6 7

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another document, Brownstein Exhibit 4. Ms. Reporter, if you would mark it? And it is a document entitled, "Spent Fuel Acceptance Rate," and it appears to'be an eight-page document with a Bates number stamped in the lower right-hand corner PNL-030-0063 ¯ through 0070. (Brownstein .Exhibit No. 4 was marked f~r identification.). THE WITNESS: Okay.. BY MR. TOMASZCZUK:
Qo

Have you seen this document before

today? A. document. I have no recollection of this So the answer to my question is no,

Q.

¯ you haven't seen it before today?
Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Alan Brownstein

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April 9, 2002

McLean, VA Page 75

1 2 3 4 5 6 7 8 9 today.

I don't bel-ieve I have seen it .before

Q.
A.

You don't know who prepared it? I can read the bottom of the page and

know the organization that purPortedly prepared it, but it says PNL. Q. A. Do you recall any discussions with PNL I don't, recall seeing the document personnel concerning the document?

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before, so I do not. Q. Could you read the first paragraph of the document? A. Q. S.ure. You don't have to read it out loud.

You can just reaj it to yourself. A. Thahk you. (The'witness reviewed the document.) THE WITNESS: Okay. BY MR. TOMASZCZUK: Q. document? MR. BANES: legal conclusion. You can. answer.
Alderson R~porting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20003

Do you agree with the .first sentence

as stated in the first paragraph of this

Objection.

Calls for a

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Alan Brownstein

Document 290-3

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April 9, 2002

Page 29 of 34

McLean, VA Page 76

1 2 3 4 5 6 7 Q.

THE WITNESS: Ido agree with it. BY MR. TOMASZCZUK: You would agree the current contracts do not commit the department to accept spent fuel on any specific .schedule? A. Q. needs? You agree with' that part of the schedule? A. Yes. MR. BANES: Objection. Calls for a legal conclusion. MR. TOMASZCZUK: I'm sorry. What about that calls for a legal conclusion? MR. BANES: You're asking h±m about, to interpretthe contract. Every time you ask him to interpret the contract, we file a motion for summary .judgment on the contract because it's a question of law and interpreting the contract, so every time you ask him to interpret the contract, I~'m going to say calls for a legal conclusion. ¯Y MR. TOMASZCZUK: B
Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

I am agreeing~to that, yes. And therefore do not provide.a basis

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for utilities to plan for meeting their storage

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Alan Brownstein McLean, VA

April 9, 2002

Page 77

1 2 3 4 5 6 7.

Q.

Well, I'm not sure I have asked you,

at least in this most recent question, to interpret the contract~, and it's not my intention to ask you for lega! conclusions, but you were here for ten years, as I understand it, responsible for administering the contract, a~d I think it's fair that, that I should be entitled to ask you some questions about th~at, and that's what I.'m going to purport to do. Okay? MR. BANES: I'm not going to prevent you from asking those questions. I'm just going to preserve my objection for the record because it doesn't, .we don't need testimony to interpret the contract. MR. TOMASZCZUK: Well, we don't agree with that statement of the law, but we don't need to debateit here. MR. BANES: Okay. BY MR. TOMASZCZUK: Q. Do you see the second sentence in this first paragraph, Mr. Brownstein? A. Q. Yes. Would you agree or disagree with that

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16 17 18 19 20 21 22 23 24 25

sentence as written?
.Alderson Reporting Company, Inc. 1111 14th Stree< N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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McLean, VA

April 9, 2002

Page 78

1
2 3 4 5 6 7

A. Q.

Let me just read it again. Sure.. (The witness reviewed the document.) THE wITNEss: Okay. I agree it says

it discusses it, yes. BY MR. TOMASZCZUK: Q. Okay. Was it your understanding that DOE's intention~was to begin to dispose of spent fuel at a rate which would allow utilities. starting in 1998 to store their discharges in their pools? MR. BANES: Objection -- vague as.to the meaning of intention. THE WITNESS: I really don't understand the question. I need you to -BY MR. TOMASZCZUK: Q. worded. This~ document, and in particular the second and third sentences ofthe first paragraph, as I read them, suggest to me that DOE was considering a commitment to begin in 1998 removing spent fuel at a rate which would be sufficient to allow storage ±n~those pools of subsequen~ reactor discharges.
¯ Alderson Reporting Company, Inc. 1111 14th Street, N~W. Suite 400 1-800-FOR-DEPO Washington, DC 20005.

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9

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It may not have been very artfully

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Alan Brownstein

April 9, 2002
McLeani VA

Page 79

.i
2 3 4 about? A.

That's the subject we're talking Yes. And my question to you is do you agree

Q.

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that that was DOE's intention at or about the time that this document was prepared in July of 19867 MR. BANES:

Objection -- vague. I must tell you that

9 I0 Ii 12 13 14 15 16 17 18 19

THE WITNESS:

contractor, contractors prepare a number of documents for many different parts of the organizationto do many things. I can agree with what this is. is separate from the department policy.~ Contractors do contractor work, provide .input to the department. The department considers that. So this is a contractor document, not a DOE document, and that's why I'm hesitating in your answers. BY MR. TOMASZCZUK: Q. Okay. Was~it a goal of DOE at this time, July Of 1986, that utilities would not need to expand their storage capacities after 19987
Alderson Reporting C~ompany, Inc. 1 ! 11 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

This

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Alan Brownstein

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April 9, 2002

McLean, VA.

Page 80

1 2

MR. BANES: ahead.

Objection -- vague.

Go

3 4

THE WITNESS: The best as I recall, the~ you know, the goal of the department was, was to have the facilities available'as, soon as we could and start accepting waste as soon as we could and as much as we Could. That was a g0al of the department. BY MR. TOMASZCZUK: Q. SO it was not a specific goal, that the utilities would not needto expand their sto~age capacities after 19987 A. goal. Q. A. And was that goal communicated .to the To the best of my recollection, in, I utilities at any point in time? That, that was a goal. That was a

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6 7 8 9 I0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25

believe that that may have been communicated in, for example, inCongressional testimony by the director of what the department's goals are. It may have been reflected in documents. I .wouldhave to look at them. been a long time. (There was a pause in the
.Alderson Reporting Company, Inc. 111 ] 14th Street, N.W. Suite 400 !-800-FOR, DEPO Washington, DC 20005

. . It has

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CERTIFICATE OF FILING I hereby certify that on this 9th day of February, 2007, a copy of foregoing "DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S DEPOSITION AND TRIAL TESTIMONY DESIGNATIONS AND, IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE RELIANCE UPON THOSE DESIGNATIONS AS SUBSTANTIVE EVIDENCE PURSUANT TO RCFC 32(a) AND FEDERAL RULE OF EVIDENCE 801(d)(2)," was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Marian E. Sullivan