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

-- --- - - -- - -----Case 1:98-cv-00126-JFM

-------- ---

.)

-- - -- --- ----Filed 09/03/2004

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Document 856-17

Page 1 of 16

Susan Klein (vol
Page 275
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY
(98- 126C)
(Merow, S.

CONNECTICUT YANKEE ATOMIC POWER COMPANY

FLORIDA POWER & LIGHT COMPANY (98- 483C)(Wilson , J. NORTHERN STATES POWER COMPANY
(98- 484C)
(Wiese, J.

(98- 154C) (Merow, S. MAINE YANKEE ATOMIC POWER COMPANY (98- 474C)(Merow, S.

DUKE POWER , a Division of DUKE ENERGY CORP.

(98- 486C)(Hodges, J. SACRAMENTO MUNICIPAL UTILITY DISTRICT
(98- 488C)
(Yock, S.

INDIANA MICHIGAN POWER COMPANY

(98- 485C)(Sypolt, J.

COMMONWEALTH EDISON COMPANY

SOUTHERN NUCLEAR OPERATING COMPANY, et ( 98 - 6 14 C) (Merow, S. J

ale

BOSTON EDISON COMPANY
(Allegra, J. GPU NUCLEAR

(98- 621C)

(Hewitt, J.

WISCONSIN ELECTRIC POWER COMPANY :
( 00- 6 9 7 C) (Merow, S. J POWER AUTHORITY OF THE STATE OF NEW YORK

, INCORPORATED (00- 440C)(Bush, J.
J.

(99- 447C)

VOLUME

II

OMAHA PUBLIC POWER DISTRICT
NEBRASKA PUBLIC POWER DISTRICT Discovery
(01- 115C)(Bush, J.

(00- 703C)(Damich ,

TENNESSEE VALLEY AUTHORITY : (Judge
(01- 249C)
(Bruggink , J.

(01- 116C)

(Sypolt, J.

:Judge:

Plaintiffs,

:Sypolt)
: PAGES

:275 - 533

Esquire Deposition Services

800-441-3376

- - - -- - - - -- - - - - - - -- - -- - -- - - - --Case 1:98-cv-00126-JFM Document 856-17

- - - - - - -- -- Page 2 of 16

Susan Klein (vol

Filed 09/03/2004

Page 276

THE UNITED STATES,

Defendant.

--x

Deposition of Susan Klein
Washington, DC

Thursday, April 25, 2002

Reported by:
JOB NO.

Denise Dobner Vickery, RMR, CRR

144540
800-441-3376

Esquire Deposition Services

Case 1:98-cv-00126-JFM

Document 856-17

Filed 09/03/2004

Page 3 of 16

Susan Klein (vol
Page 492

That'

s true.

They also haven' t proposed to

put it in a repository either , yes.
But you re aware of studies suggesting -- DOE

studies suggesting that the most economical place to

put commercial GTCC is in the repository?
I can' t cite you to any

studies, but that' s

an

understanding I have from conversations with people

that it could be economical to put it in the repository

when we are authorized to do

that.

And it would be difficult to get -- to site

another repos i tory for

disposal of GTCC, correct?

Yes, that is correct.
(Discussion off the record.
MR. MACDONALD:

46.

(Thereupon, the reporter marked for

identif ication Deposition
BY MR. MACDONALD:

Exhibit No.

4 6. )

Ms. Klein, I'
document entitled

ve had marked as Exhibit 46 a

Teleconference Call Summary.

is Bates page SNL- 00I- 0227 and it refers to a

teleconference call held on June 22, 1999.
have that before

Do you

you?
800- 441-3376

Esquire Deposition Services

)? , ~
Case 1:98-cv-00126-JFM

...

,.

. "
Page 4 of 16

Document 856-17 Filed 09/03/2004 Susan Klein

Page 274
ESQUIRE DEPOSITION SERVICES
1020 19TH STREET, NORTHWEST

SUITE 620
WASHINGTON, D . C .

20036
ERRATA SHEET

Case Name:

Yankee Atomic Electric Co ~, et ale V.
Susan Klein

The United States
witness Name:

Deposition Date:
Job No.

April 24,
--9

2002

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Case 1:98-cv-00126-JFM
Alan Brownstein

. )

Document 856-17

Filed 09/03/2004

Page 5 of 16
April 9 , 2002

McLean , VA

Page 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

- - - - - - - - - - - - - - - - - - - - -x

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C)

(Merow, S.

CONNECTICUT YANKEE ATOMIC POWER COMPANY

(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
DUKE ENERGY CORP.

(98- 485C) ( Sypolt, J

Cll8l8Copy

INDIANA MICHIGAN POWER COMPANY

(98- 486C)
( 98 - 488

(Hodges, J.

SACRAMENTO MUNICIPAL UTILITY DISTRICT
C) (Y oc k ,

S. J . )

SOUTHERN NUCLEAR OPERATING COMPANY,
et ale

(98- 488C)

(Yock, S.

COMMONWEALTH EDISON COMPANY

(98- 621C)(Hewitt , (99- 44

J.

BOSTON EDISON COMPANY
7C) (Allegra , J.

GPU NUCLEAR, INCORPORATED

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800- FOR-DEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 6 of 16
April 9, 2002

McLean, VA

Page 2

(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.
OMAHA PUBLIC POWER DISTRICT

(01- 115C)(Bush, J.
NEBRASKA PUBLIC POWER DISTRICT

(01- 116C)(Sypolt, J.
TENNESSEE VALLEY AUTHORITY

(01- 249C)

(Bruggink, J.

Plaintiffs,
Discovery
THE UNITED STATES,

: Judge:

Defendant.
McLean , Virginia

: (Judge
t )

- - - - - - - - - - - - - - - - - - - - -xSypol

Tuesday, April 9, 2002
Deposi tion of ALAN BROWNSTEIN, a

witness, called for examination by counsel for
Plaintiffs in the above-entitled matter,

pursuant to notice, the witness being duly sworn

by CATHERINE S. BOYD , a Notary Public in and for
the Commonwealth of Virginia, taken at the

offices of Shaw Pittman, LLP, 1650

Tysons

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 8oo-FOR-DEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 7 of 16

McLean , VA

April 9 , 2002

Page 117

the letter that Mr. Kraft was concerned about

was in his mind, the department could
potentially meet its obligation again in my

mind, following commencement of facility
operations by accepting a single fuel assembly

from a utility, and, and they were concerned
abou t

that.
Did you have a view about that issue?

We viewed the contract and the
you know, contain sufficient performance

law,

standards.
It was clear that in return for

payment, ultimately and conditionally, we would be required to take their waste , and that' s the

ultimate performance

standard.

Everything else were intermediate

milestones or goals as opposed to contractual

commitments.
1--g

Q. Do you know whether the federal Courts \
""'lIlIIII

of Appeal have adopted your view as to the

condi tional nature of DOE' s performance that you
just articulated?

They have not, but that is how we,
that is what we believed, and that' s how we

acted really at all times prior to that decision

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800-FOR-DEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 8 of 16
April 9 , 2002

McLean , VA

Page 118

you referred to.

And what decision did you understand
me to be referring to?

Whether we had an obligation on

January 31st, 1998, whether in fact that was

conditional or not.
And you understand now that the courts
have concluded that that obligation was not

condi tional, is that correct? That' s correct.
MR. BANES:

Calls for a legal

conc 1 us ion.
THE WITNESS:

Sorry.

That'

s correct.

BY MR. TOMASZCZUK:

Do you think the courts were wrong

about that?
Can I answer that?
MR. BANES:

Yeah.
My --

THE WITNESS:
MR. BANES:

Objection

irrelevant,

but you can answer

that.
, my personal opinion

THE WITNESS:

is I absolutely believed my interpretation was

correct.
And the reason for that is there are

Alderson Reporting Company, Inc. 111114th Street, N.W. Suite 400 1- 800-FOR- DEPO Washington, DC 20005

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 9 of 16
April 9 ,

McLean , VA

2002

Page 193

BY MR. TOMASZCZUK:

Did you request that Mr. McDuffie

prepare

this memo?

Either

did,

Mr. Svenson.

And what was Mr. Svenson I
this time, if you recall?

role at

By this time, he probably was a direct
report to me.

Okay.

And do you recall whether the

request from either you or Mr. Svenson was made
orally or in writing?

It probably followed the same, if I
did it, it followed the same procedure I

described previously to you , and if Erik did

it,

m sure he would follow the same

procedure.

Whether it was a call directly to Pat

or through the field office, it would have been

orally.
We would have had some task order , you know, that PNL works on these subj ects we ask

them to review

that, so

At or about this time, had you engaged
PNL representatives in discussions concerning
possible amendments to the contract?

They were part, consistent with other

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800-FOR-DEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 10 of 16
April 9, 2002

McLean , VA

Page 194

documents that you have shown me, they were part
of the, the issue resolution process as we

called it.
m going to refer back to Exhibit 11, since the beginning, so you know, they were,
they were involved to help me think about

changes in the contract from the Day One.

was nothing new.
So at this point in time , we re two

years beyond that initial December
as I recall?

1987 meeting

Right.
Was there a concern at this time about
the contractual definition of high- level waste
in the standard contract?

By?
MR. BANES:

Objection -- vague.

BY MR. TOMASZCZUK:

Was there a concern at DOE about the
definition of high- level waste used in the

standard contract?
Not by me, but -MR. BANES:
THE WITNESS:

Objection -- vague.

But maybe by others.

BY MR. TOMASZCZUK:

Alderson Reporting Company, Inc. 111114th Street, N. W. Suite 400 1-8oo-FOR- DEPO Washington, DC 20005

Case 1:98-cv-00126-JFM

Document 856-17

Filed 09/03/2004

Page 11 of 16

CERTIFICATE OF NOTARY PUBLIC I, Catherine S. Boyd, the Notary
Pub 1 i c

befo re whom the proceed

i ng occu r red,

pages

th rough

, do hereby cert i fy that the
taken by me and thereafter

wi tness was duly sworn, that the test i mony of

said wi tness was

reduced to th is

typewr it

ten t ransc

r i pt

under my

supervision, that said transcript is a true

record of the testimony given by said

witness,
s

that I am nei ther counsel for, related to, nor
employed by any of the part

i es to thi

proceeding, and further, that I am not a
relative or an employee of any attorney or

counse 1 employed by

the pa

ties the reto, 0

financially or otherwise interested in the
outcome of the proceeding, or any action

i nvol ved therewi th.
Witness my signature and

seal:

~.s: /J~
CATHERINE s. BOYD

Notary Publ ic
My commission

in and for

The Commonwealth of Virginia

expires:

February 28 , 2006

, -

--------------------. )

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17
McLean , VA

Filed 09/03/2004

Page 12 of 16
April 10 ,

2002

Page 242

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98-126C) (Merow, S.
CONNECTICUT YANKEE ATOMIC POWER COMPANY

(98- 154C)

(Merow , S.

FLORIDA POWER & LIGHT COMPANY

(98-483C) (Wilson ,

J.

NORTHERN STATES POWER COMPANY

(98- 484C) (Wiese, J.
DUKE POWER , A Division of
DUKE ENERGY CORP.
( 9 8 - 4 8 5 C) (S yp 0 1 t,
J

Certified Copy

INDIANA MICHIGAN POWER COMPANY

(98-486C) (Hodges, J.
SACRAMENTO MUNICIPAL UTILITY DISTRICT

(98-488C) (Yock, S.
SOUTHERN NUCLEAR OPERATING COMPANY

et al.
(98-488C) (Yock, S.
COMMONWEALTH EDI SON COMPANY

98- 621 C) ( Hewitt,

J.

BOSTON EDISON COMPANY
(99-447C) (Allegra, J.

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

- - - - - - - - - - - - - - - - - - - - Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17
McLean , VA

Filed 09/03/2004

Page 13 of 16
April 10 ,

2002

Page 243

(00-440C) (Bush, J.

WISCONSIN ELECTRIC POWER COMPANY

(00- 697C) (Merow, S.
POWER AUTHORITY OF THE STATE OF NEW YORK

(00-703C) (Damich, J.
OMAHA PUBLIC POWER DISTRICT

(01- 115C)
(0 1-116C)

(Bush , J.

NEBRASKA PUBLIC POWER DISTRICT

Sypolt, J.
(Bruggink, J.

TENNESSEE VALLEY AUTHORITY

(01- 249C)

Plaintiffs,
Discovery
THE UNITED STATES,
: Judge:

Defendant.
McLean , Virginia

: (Judge xSypol t)
Wednesday, April 10, 2002

Continued deposition of ALAN
BROWNSTEIN , a witness, recalled for examination

by counsel for Plaintiffs in the above- entitled

matter, pursuant to notice, the witness being

previously duly sworn by CATHERINE S. BOYD , a
Notary Public in and for the Commonwealth of

Virginia, taken at the offices of Shaw Pittman

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

'?
Case 1:98-cv-00126-JFM
Alan Brownstein
McLean , V A

Document 856-17

Filed 09/03/2004

Page 14 of 16
April 10 ,

2002

Page 443

dollar investment In dry storage capabili ty.
BY MR. HIRSCH:

But if the DOE was golng to miss the

acceptance date by a long period, say

12 years,

then the utili ties might
those high- cost,

be forced to engage In

high- capital alternatives,

correct?
MR. BANES:

Obj ection.

Calls for

speculation.
THE WITNESS:

It, it lS, it is

possible.
Again, we made no secret of this

program ,

where we were and the difficul ties of

commencing facili ty operations, and we also made

it clear in all the documents that we reviewed

that until that time, we believed it was the
responsibility, so you know , that burden exists on the, existed on the

utili ties '

utilities.

I should say that responsibili ty.
BY MR. HIRSCH:

And so In DOE' s Vlew , if the

government was golng to miss the

1998 acceptance

date by 20 years say, that entire burden of

storing waste was the utili ties
The, the statements, and if

necessary,

IIII

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

Case 1:98-cv-00126-JFM
Alan Brownstein

Document 856-17

Filed 09/03/2004

Page 15 of 16
April 10

McLean , V A

2002

Page 444

we can go back In the ACRs as that I recall

them, you know,

made it clear until we accepted

waste, we used that type of statement, or until

the facili ty operations commenced,
responsibili ty for

the spent fuel rested wi

the utili ties.
That was our interpretation of the

law.
wi thout going over this too many

times, that particular interpretation was

rej ected, correct?
MR. BANES:

Obj ection -- misleading;

calls for legal conclusion.
THE WITNESS:

Yes.

BY MR. HIRSCH:

Now Mr. Brownstein, will you look at

page 2394 or 2395 of Exhibit 38?
Do you see there lS a reference on
here to NOI response summary?

Yes.
And do you know what the NOI response
summary was?
I do.

What was it?

That refers to a Notice of

Inquiry.

IIII 14th Street ,

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

Case 1:98-cv-00126-JFM

Document 856-17

Filed 09/03/2004

Page 16 of 16

CERTIFICATE OF NOTARY PUBLIC

I, Catherine S. Boyd, the Notary
Pub 1 i c

befo re

whom the proceed i ng occu r red,

pages ---- through ---- '

do hereby certi fy that

the wi tness was duly sworn, that the test i mony of sai d wi tness was taken by me and thereafter
reduced'
to this typewritten transcript under my

supervision, that said transcript is a true
record of the testimony given by said

witness,

that I am nei ther counsel for, related to , nor
employed by any of the part

i es to the

proceeding, and further, that I am not a
relative or an employee of any attorney or

counsel employed by the parties thereto, or

financially or otherwise interested in the
outcome of the proceeding, or any action

involved therewith.
Wi tness

my signature and seal:

f1~
CATHERINE s. BOYD

Notary Publ ic
My commission

in and for

The District of Columbia

expires:

August 31, 2002