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

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 1 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1054

The paragraph reads
but this appears

Start of waste acceptance:

The

Upton/Towns Bill mandates a storage facility in 1998,

infeasible.

More realistic estimates

are that a storage facility could be available in five

to seven years after legislation is passed, depending
on the degree of procedural streamlining included in
the law.

Assuming passage of legislation 1995,

therefore acceptance could begin from 1999 to 2003.
Do you see that?

That'

s the statement you

referring to, correct?

Yes.
Earlier on your office believed that an
interim storage facility could be up and running

wi thin three- and-

half years of the start of

construction, correct?
MS. HERRMANN:

Obj ection.

Speculation.
half years.

I don t recall three- and-

You do not recall testifying in this
deposi tion that at an earlier point in time you

believed that it would take less than five to seven years to get an interim storage facility up and

running?

(202) 861- 3410

(800) 292-4789 (301)

D. REPORTING COMPANY, INC.
762-8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 2 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1055
All depends on the infrastructure and
degree of streamlining,

etc.

The shortest I think

ve ever said was four under some -- some
circumstances which I don t remember the details.

But

generally -- I'

ve never said less than

four.

You can

do it in three and a

half. That'

s the licensing phase
But go ahead.

or something, to put it in

context.

mean, what'

s the

what' s the question?

I f you

saying three and a half, I don t think you can do it
in three and a hal f .

My question is do you agree with the statement at page Bates 0579 that a realistic estimate

of the amount of time that it would take to get an

interim storage facility up and running would be from
five to seven years after the enactment of authorizing

legislation?
MS. HERRMANN:

Obj ection.

Speculation.

Could be four , could be five, could be

seven.

All depends on a lot of

things.
057 9?

Would an MRS facility be an interim storage
facili ty wi thin the meaning of this paragraph on

MS. HERRMANN:

Obj ection.

Foundation.

D. REPORTING COMPANY, INC.
(202) 861- 3410 (800) 292-

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 3 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1056
It would be very

similar.
Foundation.

Is that what was in mind?
MS. HERRMANN:

Obj ection.

Speculation.
The Upton/Towns Bill was straight

storage.

An MRS was more than straight
integral part of the

storage.

It was an

system.

Turn to page -- it' s a section that on the

top of the page it states " supporting initiatives for
policy options.

re going back in the document or

forward?

It' s -MR. MACDONALD:

Third-to-the- Iast

page.

-- third-to-the- Iast page.
I see that page.

And can you take a moment to read this
portion of the memorandum.

And to put it into context

for you, I' m

going to specifically ask you about, on

the following page, the section on policy

considerations.

Why don t you read this memorandum,

this portion of the memorandum so that you can respond

D. REPORTING COMPANY, INC.
(202) 861- 3410

(800) 292-

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Filed 09/03/2004 Page 4 of 12 DEPOSITION OF LAKE H. BARRETT , VOLUME 4

Document 856-12

CONDUCTED ON WEDNESDAY, MAY 8, 2002
1057

to the questions I have on that

section.

Am I supposed to read B or A?

m focusing on Subsection

Oh, I' m sorry, I' m doing A.

ve read
Okay.
Now , under page

0581.

Tell me which

one.

That'
Yes.

s the first page with " supporting
Do you see that?

ini tiati ves for policy actions.

In 1995, in April 1995 was the multipurpose

canister program still in force, or had you terminated
it already?

It'
early
' 95.

s my recollection it was still there in

And as you discussed earlier , the

mul tipurpose canister program would have been intended
to mitigate at least some of the harm suffered by

utili ties as

a result of the delay in acceptance of

spent nuclear fuel, correct?

Correct.
Well, why, as reflected in this Exhibit 50,

D. REPORTING COMPANY, INC.
(202) 861- 3410 (800) 292-

4789 (301) 762-8282

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Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 5 of 12

DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1058
was it also believed that -- by the department and the
Office of Management and Budget that additional

payments would be required to be made to the utilities
to supplement the provision of multipurpose canisters?
MS. HERRMANN:

Obj ection.

Foundation.

It doesn t say that.

It says it could be.

You know, if this option were adopted you could do

that to additionally compensate them for the

delays.

Because I thought when you explained the

mul tipurpose canister program, that would have been a

stand- alone

proposal, to compensate the utilities?

That was a -- that was a stand- alone

proposal, but what this is referring to, I believe, is
. 14

this would be in addition to the multipurpose

canisters.

It says right there, These payments would

supplement the multipurpose

canisters.

You indicated that the multipurpose

canister program was intended to mitigate the harm

suffered by the utilities, correct, as a result of the
acceptance delays?

Yes.
Why was the department in 1995 considering

(202) 861-3410

(800) 292-4789 (301)

D. REPORTING COMPANY, INC.
762-8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 6 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY , MAY 8, 2002

1059
the possibility of supplementing the provision of

mul tipurpose

canisters to utili ties

with additional

payments reflected in the proposal on page 0581 and
0582 of Exhibit 50?
MS. HERRMANN:

Obj ection.

Foundation.

Speculation.
It would be my understanding that many

utili ties were

not particularly satisfied that the

mul tipurpose canisters being supplied were sufficient
to cover the delays and wanted more. And this was

our -- an option that we were looking at that we could
provide more.

An example is one you said earlier, we

talked about earlier was that the multipurpose canisters did not cover the construction costs that

on- si te reactors

would have to

do.

And would the payments reflected in the

proposal set forth at page 581 have covered such
construction costs?

Could have been used for

that.
purposes,

That would have been one of the

correct?
Could have been, yes.

D. REPORTING COMPANY, INC.
(202) 861-3410
(800) 292-

...I

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 7 of 12

DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1060
For what other purposes would the payments
reflected at page 051 have been used?
MS. HERRMANN:
I don t know.

Obj ection.

Foundation.

Well , rather than glvlng me all the
purposes, what other purposes can you think of?
you think of any other purposes?
MS. HERRMANN:
Same objection.

Can

Other than construction?

Well, if it was a payment in terms of

cash,

utili ties could

do with it what they wished to do in

conj unction with the PUCs.
In conj unction with the?

Public utility

commissions.

How would the amount of the payments have
been determined?
MS. HERRMANN:

Obj ection.

Foundation

speculation.
That' s a complexity that' s
the reasons why we never did
there and one of

it.

On the next page, page 0582.
MS. HERRMANN:

Can we get a title on the

(202) 861-3410

(800) 292-4789 (301)

D.

REPORTING COMPANY, INC.
762- 8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 8 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1061
top, please?
MR. CAYNE:

The first entry is Legislative

Implications.
MR. MACDONALD:

The second-to-the-last

page.
The next-to-the- last page?

Yes.

You said a moment ago the payments

weren t made because of the complexity of determining
the amount.

Do you recall that statement?

Yeah, I recall the

statement.

I shouldn

have made

it.
You didn t mean to indicate that the

department didn t make the payments because it didn
believe that it had an obligation to mitigate or
rectify the harm sustained by the utili ties as the
resul t of the delay in acceptance, did you?

MS. HERRMANN:

Objection.
testimony.

Foundation

calls for a legal conclusion.

Objection to the extent

it mischaracterizes prior

Cash payments are extremely

complicated,

and this was not pursued beyond the preconceptual

discussion that you see

here.

(202) 861-3410

(800) 292-4789 (301)

D.

REPORTING COMPANY, INC.
762- 8282 (703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 9 of 12

DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1062
But it was not pursued, if I understand
your testimony, because of the difficulty in

determining the amount of the cash payments as opposed
to a determination by the department that it didn

have an obligation to rectify the harm suffered by the

utili ties as
correct?

a result of the acceptance

delays,

MS. HERRMANN:

Obj ection.

Foundation,

calls for a legal conclusion.

Correct?
MS. HERRMANN:

Same obj ections .

I don t know how to answer that

question,
I don

because you had so many things mixed in
know how to answer that

it.

question.

If I understand your testimony, the

department basically threw up its hands and

said, It'

too complicated for to us figure out how much we
should pay each utility, so we re not going to pursue
this proposal.

Would that be a correct statement?

MS. HERRMANN:
prior testimony.

Obj ection.

Mischaracterizes

No, it would not be, because the amount

(202) 861-3410

(800) 292-4789 (301)

D. REPORTING COMPANY, INC.
762-8282
(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 10 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1063
that one would pay is probably one of the more easy things to do, and that is very complicated in

itself.

So there are many issues involving direct

payments, of

which determining what amounts to whom and when is a

very complicated one, but that is probably less complicated than the source of funds and the other things discussed in this

statement.
s a lesser

So I did say that, but that'
item.
Although that is a major

item.

I have nothing

to do -- in my statement on that, my remark had
nothing to do regarding obligations or anything else
that revolved through contractual matters.

Do you see under Policy Consideration it

says " mitigates the perceived problems of utili ties
having to pay twice for storage
I see that.

Do you see that?

What is that?
MS. HERRMANN:

Obj ection.

Foundation,

speculation.
I believe what the authors were trying to

do here was find a way to provide resources back to
the utili ties that were having to spend resources due

D. REPORTING COMPANY, INC.
(202) 861- 3410

(800) 292-

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 11 of 12

DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON WEDNESDAY, MAY 8, 2002

1064
to the fact that we didn t pick the fuel up, through
storage or whatever , while they were -- operating

utili ties, not

shut down ones -- were still paying

money into the waste

fund.

The ones who were

operating claimed they were paying twice; once to pay the waste fund and once to do with

storage.

So we

were trying to figure a way to cover some of the

storage costs that would alleviate the utili ties
have to, quote, pay

to

twice.

Under the statute the utili ties were

supposed to pay into the waste fund, and at that point
it became the obligation of the Department of Energy

to store and dispose of the spent fuel, correct?
MS. HERRMANN:
legal conclusion.

Obj ection.

Calls for a

Correct?
MS. HERRMANN:

Same obj ection.

Repeat the question

again.

The problem of the utili ties having to pay

twice for storage arose because under the Nuclear

Waste Policy Act it was the intention of Congress that
the utili ties pay once into the nuclear waste

fund,

D. REPORTING COMPANY, INC.
(202) 861-3410
(800) 292-

4789 (301) 762-8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-12

Filed 09/03/2004

Page 12 of 12

rff

DEPOSITION OF LAKE H. BARRETT, VOLUME 4 CONDUCTED ON WEDNESDAY , MAY 8, 2002

1100
ACKNOWLEDGMENT OF DEPONENT

I, LAKE H. BARRETT, do hereby acknowledge that I

have read and examined the foregoing testimony, and
the same is a true , cOrrect and complete transcription

of the testimony given by me and any corrections

appear on the attached Errata sheet signed by me.

~h

~/6

~47
(SIGNATURE)

(DATE)

(202) 861- 3410

D. REPORTING COMPANY, INC.
(800) 292-

4789 (301) 762- 8282

(703) 288- 0026