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

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 1 of 13

EXHIB

IT

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 2 of 13

826
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY;
CONNECTICUT YANKEE ATOMIC POWER
COMPANY; MAINE YANKEE. ATOMIC
POWER COMPANY;

Case Nos. 98-126C,

98-154C, 98-474C,

98-483C, 98-484C, 98-485C, 98-486C, 98-488C, 98- 614C,

FLORI DA POWER &

LIGHT COMPANY; NORTHERN STATES

POWER COMPANY; DUKE POWER, a
Di vision of DUKE ENERGY CORP.

98- 621C,

99'"""44 7C,

00- 440C, 0O- 695C,

INDIANA MICHIGAN POWER COMPANY;

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

SACRAMENTO MUNICIPAL UTILITY

(Caption continued on the next

page)

Deposi tion of LAKE H. BARRETT, VOLUME

Washington ,

D.

Wednes~ay, May 8, 2002

9:31 a.
Job No.

11792-

Pages: 826 through 1103

Reported by:

Diane Gomez, RPR

~(Q)(f)W
Washington, D. C.

D. REPORTING COMPANY, INC.
1100 Connecticut Avenue, NW . Suite 1150,
Fax: 202. 861. 3425

. 800. 292. 4789 . Website: Ladreporting. com

20036 . 202. 861. 3410 . E-maiL: Lisa~Ladreporting. com

NATIONWIDE COURT REPORTERS AND VIDEOGRAPHERS

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 3 of 13

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

827
DISTRICT; SOUTHERN NUCLEAR

OPERATING COMPANY, et a1.
COMMONWEALTH EDISON COMPANY;

BOSTON EDISON COMPANY; GPU

NUCLEAR, INCORPORATED; WISCONSIN
ELECTRIC POWER COMPANY; POWER

AUTHORITY OF THE STATE OF NEW

YORK; OMAHA PUBLIC POWER' DISTRICT;

NEBRASKA PUBLIC POWER DISTRICT;
and TENNESSEE VALLEY AUTHORITY,

Plaintiffs
THE UNITED STATES,

Defendant

D.

REPORTING COMPANY, INC.

(202) 861- 3410

(800) 292-

4789 (301) 762- 8282

(703) 288- 0026

"?

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 4 of 13

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

1044

A support role.
And please describe that support

role.

ve done technological issues with the

Nuclear Regulatory Commission to facilitate and
support vendors getting certifications.

An example of

would be burn- up

credit.

ve submitted topical,
use.
So we

reports to the NRC which all vendors can

play

a support role to certifications.

The actual approval or certification comes
from the NRC alone, correct?

For health and safety purposes,

yes.

What do you mean by " for
purposes

health and safety

The NRC evaluates and approves based upon

public health and safety.

They do not on economics or

interchange issues or other things like

that.

example would be under the contract on the DOE

accepting this

acceptable waste form, the re are size, loads, and things like that need issues such have have not done. worked out, which

approval, DOE has approval for receipt as well as the

NRC for health and

safety.

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

(800) 292-

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 5 of 13

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

1045

(Deposi tion Exhibit Barrett 50 was marked
for identification and retained by Counsel.

Mr.
you Exhibit 50,

Barrett, the court
which bears Bates

reporter has

handed

CTR- 04 0-05 68

through

0583.

It I S

dated April 26, 1995,

and it'

from T.

Glauthier, G-I-

u-t-h- i -

r, Associate

Director,
Do you

Natural Resources, Energy, and Science; and Charles
Curtis, Undersecretary, Department of
have that document before you?
I do.

Energy.

And do you see on the second page the

distribution includes a copy going to Daniel Dreyfus?

Yes.
Now , on April 26, 1995, you reported to

Mr. Dreyfus, did you not?

Correct.
Do you recall earlier today you I believe
indicated that on, I don t know if you used the term

frequent, "

but perhaps regularly you deal, in your

capaci ty as deputy director, with the Office of

Management and Budget?

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

4789 (301) 762- 8282

(703) 288- 0026..

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 6 of 13

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

1046
Yes.
And -Well, excuse me.

Primarily as the acting

director.
Primarily as the acting director?

Yeah.

Sometimes I

do.

And would you have dealt with the Office of

Management and Budget in 1995 in connection with the
issues addressed in Exhibit 50?

In a nonpolicy

sense.

So you would have dealt with the Office of

Management and Budget in connection with these

issues,

correct?
In a nonpolicy

sense.

Now , the memorandum, it' s on the letterhead

of the Executive Office of the
Management and Budget.
I see that.

President, Office of

Do you see that?

Who is T. J. Glauthier, if that' s how you

state it?
Yeah, T. J.

Glauthier.

Who was he?

(202) 861- 3410

(800) 292-4789 (301)

D.

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

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 7 of 13

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

1047
At that time he was the associate director
of natural resources and energy and science wi thin the
OMB.

And Mr. Charles Curtis, who the memorandum
is also from, was an official with the Department of

Energy, correct?
He was the Undersecretary at that

time.

Do you know why Mr. Curtis issued a

memorandum on April

26th, 1995,

on letterhead of the

Office of Management and Budget?
MS. HERRMANN:

Obj ection.

Speculation.

No.
Would that have been unusual based on your
experience in the office?

Not unusual.
I don t see any initials on

not sure this is a

final.

it.

m not sure this is

issued.
Have you ever seen another memorandum in which Undersecretary of the Department of Energy
issued a memorandum on letterhead of the Office of
Management and Budget?

What?

D.

REPORTING COMPANY, INC.

(202) 861- 3410

(800) 292-

4789 (301) 762- 8282

(703) 288- 0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 8 of 13

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

1048
Are you familiar with any other situation
in which an official of the Department of Energy
issued a memorandum on letterhead of the Office of
Management and Budget?

You used the word " issued.
this is issued.

m not sure

Usually I r m used

to seeing a little

curlicue, a signature,
issued.

something with

it.

This may be

But assuming it was issued, are you aware
of any other instance in which an official of the

Department of Energy issued a memorandum on letterhead
of the Office of Management and Budget?
I don t know of

any, but it I s --

I would

think it I S not uncommon.
Well , assuming this memorandum was, In

fact ,

issued, why do you believe that Mr. Curtis would

have issued a memorandum on the letterhead of the
Office of Management and Budget?
MS. HERRMANN:

Objection.

Speculation.
T. J.

The first name on there is

r s, not
So whose

Charlie

So this was a joint acti vi ty.

letterhead it is

, it' s going to be one or the other.
D. REPORTING COMPANY, INC.

(202) 861-3410

(800) 292-

4789 (301) 762-8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 9 of 13

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

1049

J. is first.

That' s probably why it'

s on his

letterhead, but I' m
0571.

speculating because I don t know.

Can you turn to page two , Bates number

m sorry, 05 -- mine
the second page?

s cut off. So it'

Second page,

yes.
Fourth page 0 f

Okay. '

m there.
the

MR. MACDONALD:

document.
THE WITNESS:

Says page two on the bottom?

MR. MACDONALD:

Yes.

Under Issues in the first

paragraph, will

you take a moment to read

that.

Yes.
Have you read the first paragraph?

Yes.
Is the first paragraph consistent with your

understanding?
When you said the first -- I haven
read -- you says

issues.

The first paragraph, not

down to " expectation for waste

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

4789 (301) 762-8282

(703) 288-00

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 10 of 13

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

1050
No.
My question is with respect to this

statement:

When the nuclear waste policy was

enacted,

policy act was enacted, it was envisioned that the
department would have a repository available for

permanent waste disposal in 1998, and the department
entered into contracts with the utility to begin

accepting waste in 1998 on that

basis.

Is that

statement consistent with your understanding?

Yes.
MS. HERRMANN:

Obj ection.

Foundation,

calls for a legal conclusion.

Yes.
On page three could you please turn to the
first paragraph on the top of the

page.

Do you see

that?
Yes.
Why would continued on- site storage of
spent fuel threaten the orderly operation of the

nation

s civilian nuclear reactors?
MS. HERRMANN:

Obj ection.

Foundation.

You can take time to read it if you need

to.
REPORTING COMPANY, INC.
762-8282

(202) 861-3410

(800) 292-4789 (301)

D.

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 11 of 13

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

1051
THE WITNESS:

Yeah.

You re referring to a phrase in this

paragraph?
looking at the last sentence of the

first full paragraph on page
The last sentence.

three.

Do you see that?

I see the last

sentence.
And my question is how or why would the
continued on- site storage of spent fuel threaten the

orderly operation of the nation ' s

civilian nuclear

reactors?
MS. HERRMANN:

Obj ection.

Foundation.

The example of this would be the Prairie

Island situation.
And please explain to me that

example.

Where due to local state -- state law they
had difficulty getting storage and may have to shut
the reactor down.

Are there any other situations that you
familiar with which at- reactor storage could threaten

the orderly operation of nuclear reactors?

No specific

ones.

(202) 861- 3410

(800) 292-4789 (301)

D.

REPORTING COMPANY, INC.
762-8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 12 of 13

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

1052
Do you believe that to be generally a

concern?
Yes.
Do you recall I asked you about an Upton
Bill, U-

p-t-

n, the last session of this deposition?

Vaguely.
Could you please turn to what' s marked as

page one, Bates number 0579 of this
MS. HERRMANN:

exhibit.
copy,

The next page in our

right, counsel?

Policy options, option one?

Yes, that I s the

page.

I see it.
It'
s Option

sorry.

Option 4?

Yes.

The bottom of the page is Bates

number 0579.
MS. HERRMANN:

Our Bates numbers are cut

off so we re going to need a better
MR. CAYNE:

reference.

It' s Option 4.
page.
For the record, a good

Yes, I see the
MS. HERRMANN:

D.

REPORTING COMPANY, INC.

(202) 861-3410

(800) 292-

4789 (301) 762- 8282

(703) 288-0026

Case 1:98-cv-00126-JFM

Document 856-11

Filed 09/03/2004

Page 13 of 13

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

1053
number of these pages are numbered page number one and
page number two, so that' s not going to help.

Just so you know , ten minutes from now

need to

go.

It'

s 3:45.

Oh, I' m a whole hour off.

Sorry about

that.
MS. HERRMANN:

Wishful thinking.

I I d like to turn your attention to towards the bottom of the page there I s a paragraph that begins
start of waste acceptance.
Do you see that?

Yeah,

see

the paragraph.

Would you please

read that.

Okay.
Have you read that passage?

Yes.
Now,

the reference

the storage

facility

here is to an interim storage facility, correct?
MS. HERRMANN:

Obj ection.

Foundation.

That'

s my understanding.

And just for the record, let me just read

the statement so it'

s clear what we re talking about.

(202) 861-3410

(800) 292-4789 (301)

D.

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