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

Case 1:01-cv-00249-CFL

Document 179

Filed 05/17/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TENNESSEE VALLEY AUTHORITY Plaintiff v. UNITED STATES Defendant TVA'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TVA TESTIMONY BASED ON THE GOVERNMENT'S MODEL OF TVA'S COSTS IN THE BUT FOR WORLD AND MOTION FOR EXPEDITED CONSIDERATION One of the Government's expert witnesses, economist Raymond S. Hartman, developed a computer-based spreadsheet model in Excel (the GMA Model), which he used to form opinions about the present value of the costs that the Tennessee Valley Authority (TVA) would have incurred for spent nuclear fuel (SNF) dry storage facilities in various hypothetical worlds constrained by Government assumptions. Each of Mr. Hartman's hypothetical worlds, for example, assumed the Government started SNF acceptance operations in January 1998 and continued thereafter at one of three acceptance-rate scenarios specified by the Department of Justice; and Mr. Hartman concludes that TVA would have had to build SNF dry storage facilities at all three specified rates. As of Mr. Hartman's April 25, 2005 deposition, he had not run the GMA model at the rate that TVA contends is applicable to evaluate the Government's breach of its obligations in this case (i.e., 400 tons in 1998, 600 tons in 1999, 900 tons annually 2000-2007, and 3000 tons annually in 2008 and thereafter). Accordingly, at the deposition, TVA counsel asked Government counsel about having Mr. Hartman run the No. 01-249-C (Judge Lettow)

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Case 1:01-cv-00249-CFL

Document 179

Filed 05/17/2005

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GMA Model at the TVA rate with a view toward possibly stipulating to the GMA Model results at various rates. Government counsel refused to do so unless TVA counsel stipulated to the GMA Model results in advance. After further discussion in which TVA counsel learned that the computer files furnished to TVA would enable TVA to run the GMA Model at the TVA rate, TVA counsel indicated that TVA probably would do so. Government counsel then agreed, rather than consume more of Mr. Hartman's costly time ($450 per hour) in deposition, to allow informal communications between TVA's technical people and Mr. Hartman's staff to permit TVA to run the GMA model. Based upon this conversation among counsel, the Government now has moved in limine to preclude TVA from presenting testimony about running the GMA Model using different input assumptions than those employed by Mr. Hartman, primarily on the ground that any such effort necessarily implicates expert testimony. We do not think there is anything so exotic about Mr. Hartman's model that the skills typically used by utility employees who estimate SNF storage capacity would not be sufficient to run and critique that model. Regardless, however, the Government's motion should be denied as moot because TVA has no current plans to introduce evidence about the GMA Model results through a TVA witness (and TVA would have so informed the Government had it asked). Indeed, after Mr. Hartman's deposition, TVA counsel recognized that no reason for running the GMA Model at the TVA acceptance rate exists because no dry storage facilities are needed at that rate. Thus, there would be no dry storage facility costs for the GMA Model to calculate and reduce to present value.

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Case 1:01-cv-00249-CFL

Document 179

Filed 05/17/2005

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For purposes of clarification, however, TVA does reserve the right to run the GMA Model and to cross-examine Mr. Hartman based on the results should TVA choose to do so. Also for purposes of clarification, TVA notes that the Government's motion only goes to the GMA Model. TVA reserves the right to utilize the output data from the two components of the Department of Energy (DOE) Model (SNF discharge information and acceptance priority information based on data provided by utilities to DOE) which Mr. Hartman used as input data to the GMA Model and which form the basis for DOE's own publications such as the Acceptance Priority Ranking document that establishes SNF acceptance priorities. CONCLUSION For the foregoing reasons, Defendant's motion should be denied as moot. Respectfully submitted, May 17, 2005 Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 Maureen H. Dunn General Counsel Edwin W. Small Assistant General Counsel s/Peter K. Shea Peter K. Shea Senior Attorney/Attorney of Record Telephone 865-632-7319 Attorneys for Tennessee Valley Authority
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