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

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Case 1:98-cv-00154-JFM Document 315-3

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-8
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- ~ X

YANKEE ATOMIC ELECTRIC
COMP ANY,

Plaintiff,

Case No.
Merow

98-126C

Senior Judge

THE . UNITED STATES,

Defendant.
- X

Washington, D.

C.

Friday, Jun~ 4 , 1999

b~po~ition of CHRISTOPHER A. KOUTS, a
witnes~ herein, called for examination by counsel
for Plaintiff in the above- entitled matter

pursuant to notice, the witness being duly sworn
by MARY GRACE CASTLEBERRY , a Notary Publ ic in and
for the District of Columbia , taken at the

offices of Spriggs & Hollingsworth , 1350

tree t , N. W., Washington , D. C.,

at

10:

0 a a. m. ,

Friday, June 4 , 1999, and the proceedings being

taken down by Stenotype by MARY GRACE
CASTLEBERRY , RPR , and transcribed under her

direction.
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ALDERSON REPORTING COMPANY , INC.
(202)289- 2260
1111 14th ST" W., 4th flOOR

(800) FOR DEPO

WASHINGTON, D, C.,

20005

0001

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was the

first.
Do you know where that date came from,

Q. '

how that date came to be included in the
presentat ion?

I was not directly involved in the
development of that report , so I couldn' t say.

Do you know who was involved?
I believe the staff person at the
was Vic Trevules, that' s T-r- e-v-u-

time

l-e-s.

Does he currently work for DOE?
Yes, he works for the Yucca Mountain

proj ect.
Do you have any understanding at all of
where the 2010 number came from , how it was

derived ,

what the basis for that number

is?

It was developed through working with

the ' repos i tory program , which was an area of the
program I wasn' t working with at the

time, so I

don t have any direct knowledge as to how that
date was developed.

Do you have any indirect knowledge?

No.
When do you believe that spent nuclear
fuel will start to be picked up from nuclear

utilities?
ALDERSON REPORTING COMPANY , INC.
1111 14th ST. ,

(202)289. 2260 (800) FOR DEPO , 4th FLOOR N. WASHINGTON, D. , 20005

0002

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I believe, assuming we get the

resources, that it can be done by

2010.

Do you believe it will be done by 2010?
I can' t really

say.

Any particular reason why you can'

say?

It'
budgets,

s predicated upon prece~ding

it'

s predicated upon many, many
I think our schedules are

dif f~rent variables.

reasonably based, but there are many variables

associated with it.
What do you expect to happen?
'I :

Do you
- all

I;

expect that you will g~t

the' budgetary -

these variables will fall into the place and that
the 2010 date will be met?
I don' t know.

I couldn' t say.

What will be the initial rate of
acceptance for spent nuclear fuel when the

program begins accepting the utility s spent

nuclear fuel?
My sense is it would be the same
acceptance rate that' s outlined in the annual

capacity reports that we' ve issued over the

years.
You said reports

plural.
D.

Did you say

ALDERSON REPORTING COMPANY , INC.
(2021289- 2260 (8001 FOR DEPO 1 i 11 14th ST., N. W., 4th FLOOR WASHINGTON ,

, 20005

0003

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report or reports?

I thought I ~aid

reports.
issued.

I thought

there were more than on~ ACRs

I asked that question because the

numbers have changed over the years, so which
particular annual capacity report are you

referring to?
The latest one, whichever one that was.
Is there more than one scenario of

acceptance currently being evaluated by DOE?
What' I mean by

that is,

is it a repository only
th

acceptance or

is it

interim storage or

i tory wi something else?
a repos

some

Our baseline program is acceptance in

2010 at a

repository.
Is there any plan or provision for

interim storage?

Lacking authority,

no.

Even without the authority, are ther~

any plans being made in the event that authorityis granted?

The Department has taken steps to allow
itself to implement interim storage as quickly as

possible, assuming it was given authority.

The

topical safety analysis report on the interim
ALDERSON REPORTING COMPANY , INC.
(2021289- 2260 (8001 FOR DEPO
1111 14th ST. ,
N.

W.. 4th FLOOR

WASHINGTON ,

D.

C., 20005

0004

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CERTIFICATE OF REPORTER

UNITED STATES OF AMERICA) ss.
DISTRICT OF COLUMBIA

, l\1ARY GRACE CASTLEBERRY, RPR, the officer before

whom the foregoing deposition was taken , do hereby certify that the

witness whose testimony appears in the foregoing deposition was duly
- sworn by me; that the testimony of said witness was taken by me to

the best of my ability and thereafter reduced to typewriting under my

direction; that I am neither counsel for , related to , nor employed by
any of the parties to the action in which this d eposition was taken , and

further that I am not a relative or employee of any attorney or counsel
employed by the parties thereto , nor financially or otherwise interested
in the outcome of the action.

Notary Public in and for
the District of

Columbia

My commission expires: 06/30/2001

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0005

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Case !D' 1:98-cv-00154-JFM

U~ited

States General

Account~g Off~ce

GAO

Report to Congressional Requesters

December 2001

NUCLEAR WASTE

Technical , Schedule
and Cost
Un c ertain

ti~s 0

th,

Yucca M,ountain

Repository Proj.ect

GA
A~1I1ty *

Integrity * Reliability

, GAO-02- 191

0006

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Contents

Letter
Results in Brief Background
It May Be Premature for DOE to Make a Site Recommendation DOE Is Unlikely to Open a Repository in 2010 as Planned

Conclusions Recommendations for Executive Action Agency Comments and Our Evaluation

23,

sCope and Methodology

Appendix I
Appendix H

Objectives , Scope , and Methodology

Comments From the Department of Energy
GAO Contact and Staff Acknowledgments
GAO Contact

Appendix HI

AcknowLedgments

Figare
Figure 1: Comparison of Statutory Site Approval Process With
DOE' s Projected Schedule

Abbreviations
DOE EPA GAO NRC OCRWM USGS

Department of Energy
Enviromnental Protection Agency
General Accounting Office

Nuclear Regulatory Commission
Office of Civilian Radioactive Waste Management U.s. Geological Survey

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United States General Accounting Office Washington, DC 20548

December21, 2oo1
The Honorable Harry Reid

Chainnan, Subcommittee on- Transportation
Infr3stcticture, and Nuclear Safety
, Committee on Environment and Public W Qrks

United States Senat~
The Honorable Shelley B~rkley House of Representi,ltives

As reflected in tIle administration s energy policy, there is renewed . interest in exPanding nuclear power as a sollrce of electriCity. At the same

time, the natio~ cun-ently does not have a facility to pertuanently dispose
of th~ highly radioactive spent (used) fuel from existing commercial
;21

nuclear power plants. fu lieu of such a facility, plant owners are currently holding about 40 000 metric tons of spent fuel in temporary storage at 72 plant sites in 36 stateS. hl addition, the Department of Energy (DOE)
and 2 500 metric tons

estimates that it has over 100 million gallons of highly radioactive waste of spent fuel from the development of nuclear

weapons and trom research activities in temporary s1:orage. Because these
wastes contain radioactive elements that remain active for hlUldreds of thousands of years , the pennanent isolation of the wastes is critical for . safeguarding public h~th, cleaning up DOE' s nuclear facilities, and providing ;1. reasonable basis for increasing the number of nudear power

plants.

As required by tlleNuclear Waste Policy Act of 1982, as amended in 1987

DOE has been studying one site at Yucca Mountain , Nevada, to detem1ine its suitabilitY for disposing of highly radioactive wastes in a nuned geologic repository. If the Secretary of Energy: decides to recommend this

site to the President, the recommendation would begin a statutory process
for the approval or disapproval of the site that will involve the President

the state of Nevada, and the Congress. In addition, a subsequent
presidential site recommendation would trigger statutory time fi-ames for action by the state, the Congress , DOE , and the Nuclear Regulatory ConUllission, (NRC). If the site is recommended and approyed , DOE must apply to NRC for a license to construct a repository. If the site is not recommended and approved for a license application, or ifNRC denied a.

license to construct a repository, the administration and the Congress would have to consider other options for the long-teml management of existing and future nuclear wastes.
GAO- OZ- l!l ~udear WlISte

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Site investigation activities at Yucca MOlmtam include studies of the
physical cha111cteristics of the moun4dn and potential waste containers.

The investigation also includes the development and use of mathematical models to measure the probability thatvanous combinations of natural and engineered (man-made) features of a repository could safely contain wastes for 10 000 years. The Environmental Protection Agency (EP A) has
set health and safety st1p\dards for a reposito~ at Yucca Mountain that require a high probability of safety for at least that period of time. DOE' criteria. for detennining if the sitels suitable for a repository and the NRC' licensing regUlations are consistent ~th these stan~ards ~ DOE has designated the nuclear waste pr()gram~ includiI)g the site investigation, as a

major" programthatis subject to senior man~ement' s att~ntion and to its ag~cywide guidelines for nuinaging such programs and projects. The

guidelines require the development of a cost and schedule baseline system for managing changes to the baseline, and independent, cos,t and schedule reviews. DOE is using a management contractor to carty out the work on the prograiu. DOE' s management contractor develops and
maintafus the baseline. but senior DOE managers muSt approve signifiC3I\t changes to cost or schedule eStimateS. In February 2001 , DOE hired Bechtel SAIC Company. LLC (Bechtel), to manage the program and '

required the contractor to reassess the rem~ning technical work-arid the estimated schedule and cost to complete this work.
In 1996 , the U. S. Court of Appeals for the District of Columbia Circuit ruled that the NuClear Waste Policy Act ()bligatedDOE to start disposing

of the spent fuel from commercial nuclear power plants no later than
January 31 ,

1998; In 1998. because DOE could not meet this deadline , the S. Court of Appeals for ihe -Federal Circuit held in another case that plant owners are entitled to damages. One of the major issues in the

detetmination of damages is the schedule under which DOE will begin accepting the spent fuel. DOE does not expect to complete the sequence of site approval , licensing, and construction of enough of tIle repository facilities at Yucca Mountain to open it until at least 2010; Cowts in these 2 cases and 16 cases brought by other utiJjties are currently assessing the amount of damages that DOE owes the plant owners for delaying the disposal of their wastes by the estimated 12-year delay. Estimates of the potential damages Vary widely, from DOE's estimate of about $2 billion to the nuclear industry s estimate of $50 billion.
Given these circumstances and questions raised about DOE's investigation of the Yucca Mountain site, you asked lIS t.o detenuine the extent to whiCh

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. DOE has completed the work necessary to support a site recommendation for the development of a repository at Yucca Mountain and . DOE's goal of opening a repository at Yucca Mountain in 2010 is

reasonable.

;ResultS in

Brief

RecolI\mending to the PreSident that the Yucca Mountain site is suitable
for a repository is within the discretion of the Secretary of Energy but, for the reasons noted below, may be premature. Once the Pl:esident ' considerS the site qualified for- a license application and recommendS the site to the Congress, the Nuclear Waste Poliq Act ,requires POE to submit a license

application to NRC within about 5 to 8 months. I On the baSis of
inforn\ation we reviewed, DOE will not be able to submit an acceptable

application to NIUJ within the express statUtory time frames for, several years because it will take tlu1t long to resolve many technical issues.
Specifically, DOE is currently gathering and analyzing technical inforn1ation required to satisfy 293 agreements that it made with NRC. According to NRC , completing this ongoing, technical ,""ork is essential for

it to accept a licens e application from DOE. Some, of these agreements, for example; provide for the additional study of how water would flow
through the repository area to the lli1derlying' grotmdwater and the durability of waste contah1ers to laSt for thousands of years. Many of the
tect-mical issues that were the subject of these agreements have also been of concern to the U. S. Nuclear Waste Technical Review Board, which was

established by the Nucle3r Waste Policy Act to review the technical and
scientific validity of DOE' s investigation of Yucca Mountmn.Bechtel's
September 200 1
,

detailed reassessment of the work required to submit a

licenSe application, including the 293 agreements with NRC and a$Suming expected ftmding leVels, concluded that DOE would be in a position to submit a license application to NRC in January 2006, or about 4 years from . now. Under the Nuclear Waste Policy Act and DOE;s siting guidelines

I If the President makes a recommendation to the C.ongress , Nevada. has 60 da.~ disapprove the site: If disapproved, the ())ngress has 90 days of continuous seSsion . to enact legislation overriding a disapproval. If the C.Qngress ovenidl's the state
di-;approval. the SecretaJ.y is required to submit a license application to NRC \\-ithin 90 days after-the site recommendation is effective. These time frames l)t'Ovide about 150 to 240 , days. or about 5 to 8 months, from the time the President recomrilcnds Ulcsite Wltll DOE

submits a license application.
~ The acceptance of a license application is riot the same as approving an application. A decL')ion to approve or disaI)prove any application would be niade by NRC fonowing ext.ensh' e review and testing.

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while a site recommendation and a license application are separate processes , DOE will need to use essentially the same data for both,
On the basis of the infomlation we reviewed, DOE is unlikely to achieve its
goal of opening a repository at Yucca Mountain by 2010 and cUlTently does

not have a reliable estinmte of when,

and at what cO$~,

sllch~Jepository

can be opened.' Since DOE stopped using the cost and sched1.tle baseline

manage the site investigation in 1997 , the repository progrMn s baseline
has not reflected changes in the program. For example , when the program s fiscal year 2000 appropriation was $57. 8 million less than requested , DOE defelTed some planned technical work without adjusting a result, it was not clearly visible As the baseline to reflect this action, when, and at what cost, the site investigation would be completed and a license application submitted to NRC. Bechtel , in its September 2001
of expected program detailed reassessment, concluded, on the basis application in January 2006 at a total funding,thatDOE could submit the cost of $5, 5 billion. This date is approximately 4 years later, and the

$5. 5 billion figure is about $1.4 billion more than DOE' s projection in 1997. Using Becht.el's estimate, sufficient time would not be available for DOE to
obtain a license from NRC and construct enough of

the repository to open

it in 2010. Therefore , DOE is exploring alt.ernative approaches to opening a

repository in 2010 , such as developing surface facilities for storing waste at the site lmtil sufficient underground disposal facilities can be constructed.
Weare recormnending that the Secretary of

Energy fully consider the

timing of the statutory process before he decides when to make a site recommendation to the President, We are also making recommendations
to DOE to better manage the nuclear waste program and to prepare of the schedule and costs for opening a repository at Yucca estimates

Mountain that are tied to a new baseline for the program.
DOE disagreed that it may be premature for the Secretary

Energy to of make a site recommendation to the President on the grounds that we did

not understand the statutory and regulatory requirements for a site

recommendation, (See app, II. ) We agree that the Secretary haS the discretion to make such a recommendation at this time; however, we
question the prudence and practicality of making such a recommendation at this time , given the express statutory time frames for a license application and the significant amOtmt of work remaining to be done for NRC to accept a license application from DOE. Our conclusion is based on the relationship between a site reconunendation and DOE' s readiness to submit an acceptable license application to NRC , as set out in law and

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