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

Case 1:98-cv-00126-JFM

Document 856-16

Filed 09/03/2004

Page 1 of 23
May 7 , 2002

Ronald A. Milner
"'" L

Washington , D.
Page 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C) (Merow, S. J. )
COMPANY

CeRTIFIED COP
) Volume I

CONNECTICUT YANKEE ATOMIC POWER

(98 - 154C) (Merow, S. J. ) (98 - 474C) (Merow, S. J.

MAINE YANKEE ATOMIC POWER COMPANY) Washington, D.
) Tuesday

Plaintiffs,
THE UNITED STATES,

) May 7, 2002

Defendant.
Deposition of RONALD A. MILNER , a witness

herein ,

called for examination by counsel for

Plaintiffs in the above- entitled matter, pursuant to

agreement, the witness being duly sworn by CHERYL
LORD, a Notary Public in and for the District of

Columbia, taken at the offices of SPRIGGS &
HOLLINGSWORTH , 1350 I Street , N.

, Washington , D. C.,

at 3:48 p. m., Tuesday, May 7,

2002, and the

proceedings being taken down by Stenotype by CHERYL

A. LORD, RPR, CRR, and transcribed under her

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

Case 1:98-cv-00126-JFM

Document 856-16

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Page 2 of 23
May 7 , 2002

Ronald A. Milner
Washington , D.

Page 40

speculation.
m certainly not an expert in that
but I don' t know of

area,

any.

BY MR. SKALABAN:

And having worked in the office of storage 1
and transportation in OCRWM and now as its chief

operating officer, have you ever heard anyone express
the opinlon that within OCRWM that failed fuel

couldn I t
to move?

be moved or would be technically infeasible

No.
Are you aware of any current OCRWM plans

to defer the acceptance of failed
MR. SHULTIS:

fuel?

Obj ection , calls for a legal

conclusion.
I guess my understanding of the current
situation -- and I think that I s provided for under

the standard contract - further in the queue.

that the failed fuel is back

BY MR. SKALABAN

Okay.

Maybe we can take a look at

that.
And

If you could please take out Milner Exhibit in particular, article six on Milner Exhibit

criteria for disposal, page 16602, if you could take
a look at article 6 A , 2 B.

1111 14th

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

Case 1:98-cv-00126-JFM

Document 856-16

Filed 09/03/2004

Page 3 of 23
May 7 , 2002

Ronald A. Milner

Washington , D.
Page 42

fuel for purposes of the

schedule.

BY MR. SKALABAN

Whether it would be technically feasible
to accept that spent fuel?
~ 5

On the currently agreed- to schedule.

Do you have an understanding of what would
happen if the department thought it wasn
technically feasible to do it at that point in time
on the currently agreed-to schedule?
MR. SHULTI S :

Objection, vague, calls for
(b) (6)

a legal conclusion.

Mr. Milner is not a 30

witness.
I guess ln my oplnlon if the department

determined that it wasn t technically
feasible on the schedule and since we' ve already

stated that we would accept it, it would move back in
the queue.

BY MR. SKALABAN

Well, does this read to you more like just
a basic operational provislon, whereas the department
lS going to look at the individual case , if it can

accommodate it at that
back a little bit?

time, it'

s going to move it

That'

s the way I would read

it.

MR. SHULTIS:

Asked and answered.

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-Case 1:98-cv-00126-JFM Document 856-16 Filed 09/03/2004 Page 4 of 23
May 7 , 2002

Ronald A. Milner
Washington , D.

Page 43

BY MR. SKALABAN

This doesn' t suggest to you that failed

fuel is going to be put back years later in the
queue, does

i t?
MR. SHULTIS:

Obj ection, asked and

answered, calls for a legal conclusion.

I couldn't say on

that.

It would depend

on the nature of the fuel.
BY MR. SKALABAN

Well , assuming that there was an
NRC- licensed container for that failed fuel, would

the department then accept it upon the currently
agreed schedule?
MR. SHULTIS:

Obj ection,

calls

for speculation , asks for a legal

conclusion.
I guess in my opinion , if for that specific failed fuel, if there were an NRC-

container, the NRC

certified said, yep, that particular fuel is
fuel. You can

okay to move in that container, then , yes.

There I S all kinds of failed
have a fuel rod that goes

the cladding is

slightly unzipped, or it can have it totally
failed and a bunch of pellets laying at the

bot tom of the

pool.

That'

s the extreme

case, of

Alderson Reporting Company, Inc.
1111 14th

Street , N. W. Suite 400 1- 800- FOR- DEPO Washington, DC 20005

Case 1:98-cv-00126-JFM

Document 856-16

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Page 5 of 23
May 7 , 2002

Ronald A. Milner
Washington , D.

Page 44

course.
BY MR. SKALABAN

And in the extreme case, do you
know whether or not the technology has been

developed to put that into a safe, licensed

container?
MR. SHULTI S :
Obj ection , calls for a legal

conclusion.
I don' t know.

That would be a utility

operation responsibility in any
BY MR. SKALABAN

event.

But it'

s possible that that kind of

situation would be dealt with?

As an engineer, I 1 ike
that most things are technically

to think

feasible.
And you have no reason to bel ieve
that it wouldn' t be technically feasible

to develop a safe, NRC- licensed

container to

handle that extreme situation you

posited?
MR. SHULTIS:

Objection, calls for a legal

conclusion.
I can' t think of

any.

MR. SKALABAN

Can we go off the record a

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

::

, /.,
course.

:? /

(-.

. " """"' ' .,

Case 1:98-cv-00126-JFM
Ronald A. Milner

Document 856-16
Washington , D.

Filed 09/03/2004

Page 6 of 23
May 7 , 2002

Page 42

Page 44

fuel for purposes of the schedule. BY MR. SKALABAN: Whether it would be technically feasible
to accept that spent fuel?

Q.

BY MR. SKALABAN:

Q. ' And in the extreme case , do you
know whether or not the technology has been developed to put that into a safe , licensed container? MR. SHULTIS: Objection , calls for a legal conclusion. A. I don t know. That would be a utility operation responsibility in any event. BY MR. SKALABAN: But it's possible that that kind of situation would be dealt with? As an engineer, I like to think that most things are technically feasible. Q. And you have no reason to believe that it wouldn t be technically feasible to develop a safe , NRC- licensed container to handle that extreme situation you posited? MR. SHULTIS: Objection , calIs for a legal conclusion. A. I can t think of any. MR. SKALABAN: Can we go off the record a

A. On the currently agreed- to schedule. Q. Do you have an understanding of what would happen if the department thought it wasn technically feasible to do it at that point in time on the currently agreed- to schedule? MR. SHULTIS: Objection , vague , calls for a legal conclusion. Mr. Milner is not a JO(b)(6) witness.

A. I guess in my opinion ifthe department

Q.

detennined that it wasn t technically feasible on the schedule and since we ve already stated that we would accept it , it would move back in the queue. BY MR. SKALABAN: Q. Well , does this read to you more like just a basic operational provision , whereas the department is going to look at the individual case , if it can accommodate it at that time , it' s going to move it back a little bit? A. That' s the way I would read it. MR. SHULTIS: Asked and answered.

A.

F""Page 43
Page 45

BY MR. SKALABAN: This doesn t suggest to you that failed fuel is going to be put back years later in the queue , does it? MR. SHULTIS: Objection , asked and answered , calls for a legal conclusion. A. I couldn t say on that. It would depend on the nature of the fuel. BY MR. SKALABAN: Q. Well , assuming that there was an NRC- !icensed container for that failed fuel , would the department then accept it upon the currently

Q.

second?

~Ct
t2
YJ'

(Whereupon . at 5:08 p. , the taking of the instant deposition adjourned.

SUBSCRIBED AND SWORN to before me this

20~, I :)/~;kiZ.,
:#a
ry Public 7:'

Signal11re of the Witness :dr;!;'

day of

agreed schedule?

13 My Commission Expires:

MR. SHULTIS: Objection , calls for speculation , asks for a legal conclusion. A. I guess in my opinion , if for that specific failed fuel , ifthere were an NRC-certified container , the NRC said , yep, that particular fuel is okay to move in that container, then, yes. There s all kinds of failed fuel. You can have a fue! rod that goes -- the cladding is slightly unzipped , or it can have it totally failed and a bunch of pellets laying at the bottom of the pool. That' s the extreme case , of

Ie-

12 (Pages 42 to 45)
Alderson Reporting Company, Inc.
I11I 14th Street ,

N. W, Suite 400 1- 800-FOR- DEPO Washington , DC 20005

~~$:

---------------Ronald A. Milner

\,.. '.. '

Case 1:98-cv-00126-JFM

Document 856-16
Washington, D.

Filed 09/03/2004

Page 7 of 23

May 8 , 2002

.,.If

Page 47

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C) (Merow, S.

J. )
Volume II
Washington, D . C .

COMPANY
CONNECTICUT YANKEE ATOMIC POWER

(98- 154C)(Merow, S. (98- 4 74C) (Merow, S.

MAINE YANKEE ATOMIC POWER COMPANY) Wednesday
) May 8, 2002

Plaintiffs,
THE UNITED STATES,
De f endan

CERTIFIED ~v~.
'r fl

t.

Continued Deposition of RONALD A... MILNER,
a witness herein, called for examination by counsel for Plaintiffs in the above-entitled matter, pursuant

to agreement, the witness being duly sworn by CHERYL
A. LORD, a Notary Public in and for the District of
Columbia, taken at the offices of SPRIGGS &
HOLLINGSWORTH, 1350 I Street, N. W., Washington, D. C.,

at 9: 20 a.

, Wednesday, May 8, 2002 , and the

proceedings being taken down by Stenotype by CHERYL
A. LORD, RPR , CRR, and transcribed under her

direction.
Alderson Reporting Come..any,

Inc,

111114th Street, N. W. Suite 400 1-8oo-FOR""VEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Ronald A. Milner

Document 856-16
Washington, D.

Filed 09/03/2004

Page 8 of 23

May 8 , 2002

Page 53

It'
do.

s hypothetical.

I don t know.

You

have to know what the situation was to say what you

But if there was an NRC canister system
that was fully licensed to transport that failed
fuel, you would still anticipate that there be could a problem with accepting the waste on an agreed-upon

schedule?
I think there s a potential of that , yes,

again, depending on the nature of the failure, what
it looks like.

And that I s based

on disposal problems?

Well, it I S based on

the ability to move

that fuel from the transport pack ~- transport cask

to a waste package and then place
example

it.

You know, for

if the requirement was that you had to

physically put this in a hot cell and deal with

it,

that'

s a different matter than unloading a standard

fuel assembly.

How likely do you think that kind of a
situation may arise, that you would have a failed fuel assembly that the NRC has blessed in effect for

transportation in a licensed canister that you would be technically unable to dispose of it in a

repository?
Alderson Reporting Company, Inc.

111114th Street , NoW. Suite 400 1-800-FOR-DEPO Washington, DC 20005

Ronald A. Milner

Case 1:98-cv-00126-JFM

Document 856-16
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Filed 09/03/2004

Page 9 of 23

May 8 , 2002

Page 54

MR. SHULTIS:

Objection, calls for

speculation.
I don t think I said that we were

technically unable to dispose of

it.

It was a

question of, do you handle that in the normal queue,

or do you have to make provision for special handling

of it.
To me it' s not a question of whether

you re disposing of

it. It' s
it.

just a question of~ you

have to delay receipt of that until you make special

arrangements to handle

BY MR. SKALABAN

Is the department making any plans at the

current time to handle failed fuel at the disposal

facility?
MR. SHULTIS:

Objection. Mr. Milner is

not a 30(b) (6) witness, calls for -- I think it also

calls for a legal conclusion.

Again, I guess in my opinion , if you had
failed fuel that was not badly failed -- not a very good term of art -- but it probably would not require

heroic special handling, and if you do, then I think

you re going to have to be able to deal with that on
a case u

by case.

Certainly it would be sufficient for

handling that, but again depending on the nature of

Alderson Reporting Company, Inc.

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

Ronald A Milner

Case 1:98-cv-00126-JFM

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Page 55

the failure, does that bring your receipt line to a
stop, for example, to handle that one particular

piece of fuel.
So, yes, the repository would be able to

handle failed fuel, but what does that do to the
receipt system.

And I don t know that we have -- we

have certainly asked the utilities in -- I believe we asked the utilities in the RW 859 form something

about failed

fuel. fuel,

I don t know that we -- the department --

have a very, very good handle on all the failed

the nature of the failed fuel.

m not sure even the

utilities themselves would know exactly what they
have in the way of failed fuel in their pools until

they do an in- depth
Who I s

check.

BY MR. SKALABAN:'
looking at the failed fuel, the

integrating failed fuel into the acceptance and
disposal system at DOE?

Well, that would be part of the overall
design effort that' s being done by our M and 0

contractor.
I mean, is it fair to say that for the -in general you re envisioning that most failed fuel

would be accepted and taken without

problems, but

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

Case 1:98-cv-00126-JFM
Ronald A Milner

Document 856-16
Washington, D.

Filed 09/03/2004

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May 8 , 2002

Page 56

there may be a few exceptions that would require an
individual careful study?
MR. SHULTIS:

Objection, mischaracterizes

the prior testimony.
MR. SKALABAN

m not trying to

mischaracterize. understand it.

I just want to make sure I

MR. SHULTIS:

Calls for speculation.

I mean, I just simply don ' t know, because
I don

t feel that I have a handle on how much failed

fuel is out there, what are the nature of the

failures.

If you have a fuel assembly that has one

or more pins that have pinhole leaks in

them, that I s
ve got very

14 ' not necessarily a

large problem.

I f you

badly unzipped cladding, that could be a
BY MR. SKALABAN

problem.

And how so?
MR. SHULTIS:

Objection, asked and

answered.
Again, you know, this is pure speculation,
.. 21

because I don

t know the nature of the failed

fuel.

BY MR. SKALABAN

Sure.

But I guess I I m just
in your mind you

trying to explore --

I re drawing

a distinction between

Alderson Reporting Company, Inco 111114th Street , No Wo Suite 400 1- 800-FOR- DEPO Washington, DC 20005

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Ronald A Milner

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And I believe you testified earlier that
that was -- even though the MPC program had been
canceled, that that was a positive that came out of
it, is that industry did look and develop this

technology?
In my opinion, that was a positive, yeah.
And I mean, if it I S not going to be

compatible with the waste management system that RW
is developing, then that wouldn t be a positive,
would it?

That would be a negative.
, 13

TQat I S right.

And so I mean as you sit here today, are
you aware of any DOE plans to cut off that kind of technology from the system and not integrate it into
the system?
MR. SHULTIS:

Objection, asked and

answered.
I think the department is certainly
considering that it may have to open those canisters.
BY MR. SKALABAN

So at this point in

time, there I s

possibility in your mind that the DOE is not going to
integrate multipurpose canisters into its system?
I think that
We I re

I s a mischaracterization.
be able to integrate and

certainly

going to

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

, n

Ronald A Milner

Case 1:98-cv-00126-JFM

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Page 60

handle multipurpose canisters.

The decision as to

whether or not that canister gets disposed of in the
repository is not the department

I s decision.
I s decision.

Tha ti

the Nuclear Reg~latory Commission
I see.

Again, I'

m not trying to

mischaracterize.
Yeah.

m trying to understand.

And again - ~ so if I understand correctly,

I mean, it I S your
of canisters.

understanding, I mean, as COO of

OCRWM, that the system is going to accept those kind

It I s just

a matter of whether or not for

disposal the NRC will let you dispose of them as is
or in an overpack, I guess?

Correct.
You I re not planning to go just cut that

technology off and kind of leave the utilities
hanging so to speak?

No.
MR. SKALABAN:

I I d like to mark as Milner

Exhibit 96 the 1992 annual capacity
BY MR. SKALABAN

report.

And Mr. Milner , if you can look at this,

and also Milner 51, which is the 1995 annual capacity

report, and Milner

42.

So the numbers are 42, 51,

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Case 1:98-cv-00126-JFM
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Document 856-16
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Page 61

and 96.
(Milner Exhibit No.

was marked for

identification.
BY MR. SKALABAN

And Mr. Milner, before we start on these

documents 1 I want to ask you a followup about what we just talked about. And I understand your, testimony

to be it I S not

the department' s intent to not accept

this kind of multipurpose canister technology that'
being implemented by utilities.

It plans to accept those kind of waste

packages?
That'
s correct.

MR. SHULTI$:

Objection, calls for a legal

conclusion.
BY MR. SKALABAN

And if you weren' t going to do that, that

would potentially create some very serious problems
for the industry, wouldn t it?
MR. SHULTIS:

Objection, calls for

speculation. I f we

were not going to accept

multipurpose canisters, I think it would certainly
cause some problems for the utili

ties.

They would

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Is that a fair characterization?

Yeah.

I think that' s probably fair,

saying that if the contract w:~re amended and

that

amendment somehow affected the method by which
priority was granted -- or allocation was granted,

then, yeah, the schedule would

chanqe.

And so my question is, after telling
Yankee Atom1C that there s going to be a rule making
and that that rule making may affect its DCSs or its

schedule, then what is the effect if the department

doesn

t follow through with what it told Yankee

Atomic it' s going to do and have a rule making?

MR. SHULTIS:

Objection, calls

for..

speculation, asks for a legal

conclusion.

Yeah.
be, because to do

I can t judge what the effect would

so, I' d

say have to judge -- at

least make some projection as to what the outcome of

the rule making would

be. ,

The outcome of the rule

making may ultimately end up with no effect, or it

may have some

effect.

BY MR. SKALABAN:

Now, on page 2 in the last paragraph, it

says:

If an acceptable year one DCS is not received

within 30 days, the contracting officer will issue a
decis10n regarding the status of Yankee Atomic to

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BY MR. SKALABAN:

Well, what language would you think would be required to change these provislons on OFF and
shutdown that we

I ve just been looking at little part

A, little part B?

What change would be needed for the
department to have the ability if it wanted to grant

priority?
MR. SHULTIS:
Same objection.
Ob j ection

,

calls for speculation, asks for a legal
asked and answered.
I don '

conclusion,

t know.

I would have to spend some

time looking at the language and conferring with the

contracting officer, attorneys, et
BY MR. SKALABAN:

cetera.

Now, going back to the document we were
origlnally talking about , Milner 62 , the letter from

you dated June 16,

1994, in the very last paragraph

of the attachment under the heading, question No.
and again , the ending Bates No. 0327, this letter

,- 21

from you states:

While article six , B 1 , B of the

standard contract provides that the department may

and may is underscored -- grant priority acceptance

to shutdown reactors, when you said this
that -- isn

here, isn

t that indicating that the contract as it

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Page 203

assumption would be that if a utility for whatever

reason needed to move itself up in the queue, it
would need to do that regardless of whether the

department began accepting in '
" 5

98 or in 2010.

BY MR. SKALABAN

But if the utilities were considering
exchanging amongst themselves, wouldn

t it be very

important for them to know whether the department was
going to be begin in 1998 or 2010?
MR. SHULTIS:
Same objection.

I I ve always held

the personal belief that

it was important that the utilities have the best

estimate available as to when we would start

operation.
BY MR. SKALABAN

Well , different utilities might have
dramatically different storage needs in 1998 and

2010.
Isn I t

that a fair assumption?

Yeah, I think that would be
So if there

fair.
that

I s uncertainty whether the
98 or 2010, '

department is going to perform in '
willing to swap, don t you think?
Potentially, m- hm.

could have a large effect on whether they would be

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there was no adverse effect, and I wouldn t limit

that to the need or not need -- or no need for

building additional storage, just a general, if
everybody agreed that, yes, it was demonstrated that
there was no adverse effect whatsoever in anyone '

mind, then, yeah, that would have made
I don

sense.

t -- I can recall of nothing that

was ever said, demonstrated, whatever , that went

along those lines.

I think it remains the position

of quite a number of utilities to this day that any priority for shutdown reactors would adversely affect
a utility.

BY MR. SKALABAN:
Well, wouldn

t the answer to the question

on whether there would be an adverse impact to other
purchasers -- wouldn t that be influenced to a very

large extent by how great the acceptance rate is if
the -- if, for example, there

I s a steady state rate

of 3, 000 MTUs, as opposed to, say, 400 MTUs, there

would be a lot less need to build or to allow for
additional storage at operating reactor sites?
Do you agree with that?
MR. SHULTIS:

Calls for speculation.

I would agree with a part of the statement
that said, if you -- well , if you up the acceptance

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