Free Memorandum - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 1 of 6

Exhibit 7

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 2 of 6
Fact)

4/18/2002 Zabransky, David Vol. 2 (Coordinated Plaintiffs

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY;

Case Nos. 98- 126C,

CONNECTICUT YANKEE ATOMIC POWER
COMPANY; MAINE YANKEE ATOMIC
POWER COMPANY;

98-154C, 98-474C,
98-483C, 98- 484C,

FLORI DA POWER &

98-485C, 98-486C, 98-488C, 98- 614C,

LIGHT COMPANY; NORTHERN STATES
POWER COMPANY;

DUKE POWER

98- 621C, 99- 447C,

Di vision of DUKE ENERGY CORP.

00- 440C, 00- 695C, 00- 703C, 01- 115C,
01-116C, 01-249C

INDIANA MICHIGAN POWER COMPANY;

SACRAMENTO MUNICIPAL UTILITY

(Caption continued on the next

page)

Continued Deposition of DAVID ZABRANSKY
Washington, D.

Thursday, April 18, 2002

9:44 a.
Job No. : 112597-2

Pages 227 through 459, Volume 2

Reported by:

Diane Gomez , RPR

227

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 3 of 6
Fact)

4/18/2002 Zabransky, David Vol. 2 (Coordinated Plaintiffs

out to be failed fuel?
MR. OLSEN:

Obj ection to the extent it

calls for a legal conclusion, and obj ection, vague.
Well, the DCS per the instructions assumes

the delivery of standard

fuel. So we submitted these,

we basically told the department we were going to
submi t, provide standard fuel in these quanti ties and

this range.

It would have been our obligation

pursuant to the contract to let them know if we were going to have to submit nonstandard fuel pursuant to

Appendix E and provide in accordance wi th the contract -- basically Article 6. 2. B of the contract
covers what a purchaser does if it needs to deliver

other than standard fuel.
I think you testified yesterday that you

were involved in the early nineties in the ACR issues
resolution process?

Did I Bay that right?

Yes.
Let me show you what' s been marked as
Exhibi t 31.

(Deposition Exhibit Zabransky 31 was marked

for identification and was attached to the

256

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 4 of 6
Fact)

4/18/2002 Zabransky, David Vol. 2 (Coordinated Plaintiffs

transcript.
MR . BLANTON:

Give one to counsel.

Do you recognize that document?

Not specifically,

no.

Does this appear to you to be a DOE

documen t ?

Gi ven the text in the third paragraph on
the first page, it appear to me to be a document

crea ted by the

M&O at the

time.

Okay.

Tha t would be DOE' s M&O?

DOE' s contractor.

And M&O means what?
Management and operating.

Okay.

The first sentence of that document

says " The

standard disposal contract which defined the

spent nuclear fuel and high-level radioactive waste

acceptance process was unfortunately developed in such
a way that the terms and conditions contained numerous

omissions, inconsistencies, ambiguities, and

contradictions. "

Did you ever hear anybody describe

the standard contract that way in the course of the
ACR issues resolution process?

257

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 5 of 6
Fact)

4/18/2002 Zabransky, David Vol. 2 (Coordinated Plaintiffs

I don t recall the specific use of all

those words that way.

Any of them?
I think there was a -- it' s fair to say

that a discussion of the contract was one that

required interpretation and

review.

You had to look

at it; you had to understand

it.

But it wasn t a

simple contract.

It also -- but it was no more

complicated than many other nuclear fuel

contracts.

Were you ever in the presence of DOE

officials when anybody discussed the contract and the

gist of the conversation

was, Gee, we read the

contract, and we can t tell exactly what happens?
I don t recall that conversation -- a

conversation like

that.
Who was DOE' s M&O contractor in

Okay.

December 31 of 1991, do you know?
I believe that would have been what was TRW

Environmental and Safety Systems, TESS.

Okay.

What does an M&O contractor do with

respect to the spent nuclear fuel program?

They provide technical and management

258

Case 1:98-cv-00126-JFM

Document 858-9

Filed 09/20/2004

Page 6 of 6
Fact)

4/18/2002 Zabransky, David Vol. 2 (Coordinated Plaintiffs

support.
Do you think that the standard contract has

any omissions that needed to be filled in through the
ACR issues resolution process?

m not sure I would find any

omissions.

It has a lot of -- for both parties, a lot of clauses
that give discretion to each party on different
issues, and it would be nice to know how parties
intended to use discretion, and that' s an omission.

How about inconsistencies?

The only term that I would classify from
memory as an inconsistency could be or would be the provision that allows a trading of a DCS I believe up
to six months prior to delivery as opposed to someone
wi th an FDS or exchange provision of the

contract.

Could you explain?

And I feel like you

were trying to start and wanted to look at the

contract, which is fine, but could you explain to me
how that' s inconsistent?

I said it appears to be an inconsistency.

Purchaser shall have the right to determine -- Article

5. E of the

contract.

I won t read it, but it gives

259