Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

Document 846-7

Filed 07/14/2004

Page 1 of 22

EXHIBIT

-(,
Case 1:98-cv-00126-JFM Alan Brownstein Document 846-7 Filed 07/14/2004 Page 2 of 22 9, 2002 April
McLean, VA
Page 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C) (Merow, S. J . )
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) (98- 486C) (98- 488C)
et ale

(Sypolt,

CII8d Copy

INDIANA MICHIGAN POWER COMPANY
(Hodges, J.

SACRAMENTO MUNICIPAL UTILITY DISTRICT
(Yock, S.

SOUTHERN NUCLEAR OPERATING COMPANY,

(98- 488C) (Yock, S. J . )
COMMONWEALTH ED I SON COMPANY

(98- 621C)

(Hewitt, J.

BOSTON EDISON COMPANY

(99- 44 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 846-7

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Page 2

(00- 440C)

(Bush, J.

WISCONSIN ELECTRIC POWER COMPANY
( 00- 6 9 7 C) (Merow,

S. J

POWER AUTHORITY OF THE STATE OF NEW YORK

(00- 703C) (01- 115C) (01- 116C)

(Damich, J.

OMAHA PUBLIC POWER DISTRICT
(Bush, J.

NEBRASKA PUBLIC POWER DISTRICT
(Sypolt, J.

TENNESSEE VALLEY AUTHORITY

(0 1- 249C) (Bruggink, J.

Plaintiffs,
Discovery
THE UNITED STATES,

: Judge:

Defendant.
McLean, Virginia

: (Judge
t )

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

Tuesday, April 9, 2002

Deposition 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

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

Alderson Reporting Company, Inc.

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

Document 846-7

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Whereupon,
ALAN BROWNSTEIN,

was called as a witness by counsel for
Plaintiffs, and having been duly sworn by the Notary Public, was examined and testified as

follows:
EXAMINATION BY COUNSEL FOR PLAINTIFFS
FLORIDA POWER AND LIGHT COMPANY,

NORTHERN STATES POWER COMPANY, DUKE
POWER, INDIANA MICHIGAN POWER COMPANY, BOSTON EDISON COMPANY, GPU NUCLEAR,

INCORPORATED, POWER AUTHORITY OF THE

STATE OF NEW YORK, OMAHA PUBLIC POWER

DISTRICT, NEBRASKA PUBLIC POWER

DISTRICT:
BY MR. TOMASZCZUK:

Mr. Brownstein, would you state your
name for the record, please?
Alan Brownstein.

And by whom are you employed, sir?
Department of Energy.

And what is your title?

I I m a director of the Regulatory

Coordination Division, and I'

m on detail right

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

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Page 10

1 ~now as a

special advisor to the, special, senior

policy advisor to the director.

You said director of regulatory
enforcement division?

Regulatory Coordination. And I I m sorry -- senior policy

advisor?

Right, to the director; that. s
detail right now.
To the director of OCRWM?
Of OCRWM.

a

13 of Energy, correct?

And that is all within the Department

15
14

A. Right. Um hm. Q. My name is Alex Tomaszczuk.
record.
case.

We met

prior to going on the

m counsel for various of the utility

plaintiffs in this

I I m going to ask some questions about

your knowledge with respect to the management of

spent nuclear fuel.
If you don

t understand my question,

please tell me, and I

II try and rephrase it so

that -Okay.
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Page 13

economics from the pennsylvania state

University.
And what year did you obtain your
Bachelors Degree?

1973.
And in what year did you obtain your

Masters?
1975.
Did you undertake course work for a

Ph.
I did not.

So you stopped your formal educational training after obtaining your Masters Degree?

That I S correct.

15
college?

Can you summarize for me your

employment history after graduating from

I worked at Penn State in a research

unit, was a consultant to the Pennsylvania

governor I s energy council from ' 75 to ' 78.
In 1978, I went to, moved to General

Public Utilities, and worked there until 1980;
1980 to 1985, I worked for the General

Accounting Office, and from 1985 to the present,

I have worked for the Department of Energy.

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

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And that was a promotion for you at
the time?

Yes.
And what GS position or SES position
are you in now?

Fifteen.
And at what point in time did you get
promoted from a GS- 14 to a 15?

In the early I 90s; I
the exact date.

don

t remember

It I S a GM.
m sorry.

Say that again.

It'
position.

s a GM- 15.

It I S not

an SES

It I S a GM- 15?
Yes.

17 r-

Now you I re here today as a Department
of Energy employee, correct?

Correct.
And you I re represented
the Department of Justice?
I am.

by counsel for

Do you hold any professional licenses?
I do not.

Subsequent to the receipt of your

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

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since moved on to other positions.

Okay.

And are there individuals that

are employees of contractors that provide
support to DOE with whom you work closely?

A.

We I re

talking about the Regulatory

Coordination Division.
Yes.
Is that correct?

Correct.
I have contractors both at Booz Allen

and at the M&O, BSC.
What periods are you talking about?

Why don' t we take today?
going to work backwards a little

And I I m

bit.
people,

At Booz Allen, my main contracting support is Richard Goffi and his team of but mainly Richard, and the current M&O

contractor, BSC, would be David Siefkin, but
understand I have been on detail for the past

eight or nine months, so I have not worked very

closely with Siefkin.
Okay.
You have been on detail for the

last eight or nine months as a senior policy

advisor?
Right, since July I

believe, of last

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

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Case 1:98-cv-00126-JFM Alan Brownstein Document 846-7 Filed 07/14/2004 Page 9 of 22
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April 9, 2002

1 hear.
So since July of 2001?
Tha t'

Page 28

s correct.

It has been longer

than eight months, yes.

Q. And since that period, you have been
on detail as a senior policy advisor to the
director of OCRWM?

Correct.
And who has been that person?
Lake Barrett.

And is Mr. Barrett still serving as
the director of OCRWM?

No.

He is deputy director.

So are you now reporting to someone

else in that, in your capacity as senior policy

advisor?

The new director was conf irmed two or
three weeks

ago.

Her name is Margaret Chu, C- h-u.

And my question, sir, is are you now
reporting to Ms. Chu?

24 Q. 25

Well, my direct, my first level

supervisor is Ron Milner.

In your capacity as a senior policy

advisor to the director of OCRWM, your first

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

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Alan Brownstein

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level supervisor is Mr. Milner?

That I S correct.

All right.
He is the chief operating officer.

And then above him, you report to Mr.

Barrett?
That I S correct.
The reporting chain

is Milner, Barrett, and now Chu.
And so would it be fair to say that
you I re also reporting to Ms. Chu at this time?
It would be.

What have been your duties as a senior
policy advisor to the director of OCRWM?

Principally I have been responsible
for site recommendation activities.

What do you mean by site
recommendation activities?

All the work leading up to the

Secretary I S recommendation
the President

to the President and

Is

decision to recommend a site

for

development of deep geologic disposal, which he
did in February.

And when you say the site, you
referring to Yucca Mountain, correct?
I am.
Ii'

Alderson Reporting Company, Inc.

111114th Street , N. W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005
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Is Mr. Barrett retiring?
He is.

Are you considering leaving DOE?
I am not.

Have you discussed the possibility of
leaving DOE with Mr. Barrett?
Of my leaving DOE?

Yes.
No.

Mr. Brownstein,

would like to go

back to 1985 when you first became a DOE

employee.

Okay?
What position did you assume at that

time?

position title in '
industry specialist.

85 was a nuclear

Do you recall in what month in 1985
you began service at DOE?

September.
What were your duties as nuclear

industry specialist?
I was responsible for implementing the

terms of the standard disposal

contract.

I ran the, was responsible for the

data inputs that we received from the utilities

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

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called the RW- 859

information.

I also ran the graduate fellowship

program.
Those were my primary

responsibilities.
What were your duties with respect to
the graduate fellowship program?

Running it;

I mean I had

responsibili ty for selecting candidates to

serve, you know, in the fellowship program, so
you know, I was the man responsible for

implementing it and running

it.

And that I s a

program under which DOE

brings in talented people to work in fellowship

positions?
We support -MR. BANES:

Objection -- vague.

BY MR. TOMASZCZUK:

Do you understand my question?

just trying to get a feel for what the program

is.

A. We, we supported 20 fellows a year in
So these would be graduate fellows

their graduate work in fields of importance to
our program.

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

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working on nuclear engineering projects?
It could be.

We supported people

in,

I believe in health physics.

I believe we supported people in

policy-related positions, so it was not limited
to just engineering.

Q. What were your duties with respect to ,
8 , implementing the terms of the standard disposal

contract?
MR. BANES:

Objection -- overbroad.

BY MR. TOMASZCZUK:

I believe that I s the
used.

term that you

You said one of your duties was to
implement the terms of the standard disposal
contract, is that correct?

Sure.
And what --

Well, let me give

examples.

The

contract required issuance of something called
the Annual Capacity Report.

That had never been

done before, and so as an example, I was
responsible for developing

that.

I was responsible for interacting with

25 ~he utilities

and ans_ring their questions.

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

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Page 14 of 22 9, 2002 April

I was responsible for implementing
various items as a refund program as we had lost

Page 34

a lawsuit, actually we lost two lawsuits, and I
was responsible for refunding money to the
utilities, responsible for collecting data on
spent fuel from the utilities, the RW- 859.
Those are examples.

Did there come a point in time in your

career at DOE when you, when your duties changed
from your duties that you just described as a

nuclear industry specialist?
The, the position itself evolved over

time.
Let me give a broad outline, see if

that I s responsive Please.

to your question.

In 1985 when I started that position,

I was basically a one- person show doing these

type of activities with contractor

support.

Over time, that position evolved into a branch of which I was the branch chief, and eventually that position evolved into a

division, and each time, the responsibilities
got a little bit broader.

Okay.

Thank you for that.

That I

.-J

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

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helpful.
When did the duties that you were

performing as a specialist evolve into a branch
chief position.

I do not recall the exact dates.

believe in the late

' 80s,

it went to a branch,

and I believe in the early

I 90s, it

went to a

division.
I just don

t recall the exact times.

And when it became a division, what
was the name of the division?

Well, let I s see.

They do this

internally.
The branch was called I believe

utility Interface and Logistics

Branch.

m hesitating because I believe the

division underwent several names, and I actually
just don

t recall

it.

I have to review my

resume.
I didn

t do that before I came

here.

Does the division, whatever its name,
still exist today?
It does.

I mean it I S continued to

evolve.
And is it the Regulatory Coordination

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

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Division?
It is not. It is not.

Okay.

What is its current

name, if you know?
I don

t know.

I left, I left that

area in early ' 95.
When you say you left that area, what
area are you referring to?
m sorry.

I left the, my, my

responsibilities, talk about it

broadly,

interacting with the utilities, and responsibility for the contract, I left that I

believe in March of ' 95

to go into the division

director for the Regulatory Coordination

Division.
Over this long span of time, names of
divisions have changed and evolved and
responsibilities, and I have not kept very

I closely associated
Okay.

or attached to

that.

You assumed the position of the

director of the Regulatory Coordination Division

in March of ' 95?
To the best of my recollection.

Okay.

That I S fair.

It has been a

little while I understand.

All I can ask you is

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

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your best recollection, and I thank you for

it.

Page 37

Okay.

it '
ten- year period,
That I S

fair to say then for roughly a

you were responsible for

implementing the terms of the standard contract?

fair.

And in that regard, you were dealing
wi th the utility industry?

That I S fair.
And in or about March of 1985, your
duties changed?

95.

95 -- I' m

sorry.

That I s correct.
In March of 1995 when you assumed the

position of director of regulatory
was that a promotion for you?

coordination,

No.
Was it a lateral move?

That I S correct.
And why did you make that move?

The director asked me to take on those
responsibilities, Lake Barrett.

There was, there was

other, as I '

thinking back on it, there was other periods.

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

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That would it be fair to say that in
dealing with regulatory matters, you have less

contact with the utili ties
the regulatory agencies?

and more contact with

In a relative sense, not absolute

sense, yes.
You testified, Mr. Brownstein, that you were responsible I believe for preparing the
ACRs, is that right?

Correct.

11

::a

~he :~s f
prepare?

~iC

:::::~ r

:::::::l::~:O than ~

Over time, responsibility for the

Annual Priority Ranking, those were two separate
independent -- the Delivery Commitment

Schedules, it was a separate

document, so those
were the two

were the two, in the

I 80s, those

documents I was responsible

for.

You said the Delivery Commitment
Schedule you view as part of that process?

Yes# but not as a separate independent

report like the ACR and APR.

25 process?

But you had responsibility for the DCS

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Yes.
I~

Other than the ACRs, the APRs, and the

DCS, were there other documents for which you
had responsibility to prepare?

When you say responsibility to

prepare, those never, those two documents didn' t
exist, so when I say had responsibility to

prepare, I mean starting from conceptually to

how we I re going to do

it.

Those were unique

documents.
I had responsibilities, for

instance,

on the RW- 859 form and worked with utilities in

trying to modify that and trying to implement
_'0

those terms.

The Energy Information Administration

was responsible for implementing that, but that
in essence worked as a contractor for my

office,

so we worked closely with the utilities to try

to streamline the information that we felt we
needed and minimize the burdens on the

utilities.
I view that as a different category of

document.
You had no role, if I understand your
testimony, when you came on the scene, you had

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800- FOR-DEPO Washington , DC 2000$

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MR. TOMASZCZUK:

Ms. Reporter, I'

going to hand you and ask you to mark as

Brownstein Exhibit 2 an excerpt of a June 1985
document entitled, " Mission Plan for the

Civilian Radioactive Waste Management Program,

and I think I can represent it reflects the

Table of Contents and the, I believe the first
28 pages of that mission plan.
(Brownstein Exhibit No.

was marked for

identification.
BY MR. TOMASZCZUK:

Do you recall that
Brownstein Exhibit 2?

document,

Yes.
And it is an excerpt of the June 1985
mission plan, is that correct?

18

To the best of my recollection, it

is~

All right. And you I re familiar with
this document, are you not?

m aware of

it.

I have read pieces

of it.
You didn I t prepare it, did you?
That I s correct.
Do you know who did?

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

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I do not recall.

June

85.

It was before my
I appreciate that.

This is, the date is time.
Do you

recall

whether you read this document at or about the
time you became a DOE employee or shortly

thereafter?
I believe I read excerpts from

it.

Did you use the document to implement
the terms of the standard contract?
I used -- yes, in

part.

And what parts did you use?

I used the waste acceptance

rates.

Hesitation in the response is whether I used the
85 or the subsequent mission plan.
I don' t recall which, but I certainly

used the mission plan or its predecessor documents for the waste acce

Q. Do you know whether there was an
I don

tance rates.

earlier version of this mission plan?
t believe there was.

The reason I ask, sir, is because I
believe you used the term this document or its

predecessor. I was trying to -Subsequent documents; it I S amended
documents after.
m sorry.

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THE WITNESS:

It may have been a

goal.

I mean I was not with the program and had not
seen this document.

May have been a goal, but in terms of
the policy with respect to the contract, I don

believe that reflects

that.

BY MR. TOMASZCZUK:
And it' s your testimony that you

haven I t seen this document before today as best
you can recall?

As best I recall, I have not seen this

document.
(There was a pause in the

proceedings.
BY MR. TOMASZCZUK:

Let I S go back to Brownstein Exhibit
which was the June 1985 mission plan.
And I believe you testified if I

understood it,

Mr. Brownstein, that you used the

waste acceptance schedules in the mission plan
to implement the terms of the contract?
And -MR. BANES:

Obj ection

.

Go ahead.

BY MR. TOMASZCZUK:

I understood that to be your

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Alderson Reporting Company, Inc.