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

Case 1:98-cv-00126-JFM

Document 846-17

Filed 07/14/2004

Page 1 of 21

EXHIBIT

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Case 1:98-cv-00126-JFM

Document 846-17

Filed 07/14/2004

Page 2 of 21
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206
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- X

YANKEE ATOMIC ELECTRIC
COMPANY,

Plaintiff,

Case No. 98-126C
Senior Judge

Merow

THE UNITED STATES,

Defendant.
- X

Washington, D. C.
Thursday, April 22, 1999
Continued deposition of NANCY

SLATER, a witness herein, called for examination

by counsel for Plaintiff in the above-entitled
matter, pursuant to agreement, the witness being

previously duly sworn, taken at the offices of
Spriggs & Hollingsworth, 1350 I Street, N. W.,
Washington, D.
22,

C" at

2:10 p.

m" Thursday, April

1999, and the proceedings being taken down by

Stenotype by JAN A. WILLIAMS, RPR, and

transcribed under her direction.

ALDERSON REPORTING COMPANY, INC.
(2021289- 2260 (800) FOR DEPO 1111 14th ST., N. W., 4th FLOOR WASHINGTON, D. C., 20005

""'

"'\

Case 1:98-cv-00126-JFM

Document 846-17

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Page 3 of 21

244
aware that the utility industry did not support
priori ty for shutdown reactors.

In fact, their
reactors.

stated consensus position was that priority

should not be afforded to shutdown

So it was not intended that the
delivery commitment schedule process be a gotcha

process?
A static process.

Right, that,

gee, you only requested

five ' and now,

even though we can accommodate 20,

you ve wanted all along to do 20, we re not going
to let you because you only asked for
was not the intention?

five, that

That'

s correct,

it was not our

intention to do

that.
this me just make sure it' s
clear,

And we might have covered
yesterday, but let
18 '

that the delivery commitment schedule was intended to indicate how much spent fuel the

2 0

utility wanted to deliver up to the limit of
their allocation?

21.
22 j

In part,

because recall that the

discharge date of the fuel earned you a slot in

the acceptance priori ty

ranking, but the fuel you

could actually deliver did not have to be
ALDERSON REPORTING COMPANY, INC.
(202)289- 2260
1111 14th ST., N. W.,
4th
FLOOR

the

(800) FOR DEPO

WASHINGTON ,

D.

C., 20005

Case 1:98-cv-00126-JFM

Document 846-17

Filed 07/14/2004

Page 4 of 21

273
out its

scope.

I don

't

precisely recall which

section in the contract discusses the annual

capacity report.
If you want to turn to page 10,

the

paragraph above Article

Is that what you were

referring to?
Yes, because it establishes it as a
document for planning purposes only because
is a recognition that system capacity could

there

change up or down.

So the annual capaci ty

report was not

intended to be binding on the parties?
It was not intended to be absolute

the sense that again it'

s a planning document.

And DOE, and I distinctly remember saying
when I was on the utility

this

and I distinctly remember it being said to me

side,

DOE had always

stated that, if we were able to improve the system capacity, then the ACR would reflect improvements in system capacity.
And the APR would be used to readj
which utilities, when, and how much fue
1.

those

ust

So,

a planning document, planning documents are
subj ect to change.

And the ACR as I understood it was to
ALDERSON REPORTING COMPANY, INC.
(202)289- 2260
1111 14th ST., N. W.,
4th
FLOOR

(800) FOR DEPO

WASHINGTON, D. C., 20005

Case 1:98-cv-00126-JFM

Document 846-17

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274
communicate to the utilities what DOE believed

was the likely receipt rate at a repository,
likely acceptance

the

rate,

and to accept who was

likely to deliver during the first ten years of
system operation based on the APR.

What was the first ACR that you were

involved in?
Let'
, 91
s see.

I joined DOE in August of

and I don' t recall which ACR that was.

But

I would probably have been involved in the ACR starting on the ACR that was issued in ' 92.
Wha t would your role have been in

determining that amount that DOE was going to
tell utilities DOE was expecting

to

what they

expected the annual receiving rate for the
facilities to be, what would your role have been
in that?

None,

nothing.
the those receipt

Who would have made that determination?
I don t recall who precisely made

determination because I believe

rates were established in ACR' s prior to my
advent with the

program.

And there were no

changes in those receipt rates for this document

that I' m aware of.
1111 14th ST., N. W.,

So the document

the

ALDERSON REPORTING COMPANY, INC.
(202)289- 2260
4th
FLOOR

(800) FOR DEPO

WASHINGTON, D. C., 20005

"""""'

;~.:.

~~
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--Page 6 of 21

Case 1:98-cv-00126-JFM

Document 846-17

205
MR. SHAPIRO:

Why don' t we stop for the

day here and discuss where to go

next.
Thursday,

(Whereupon, at 4:50 p. m., the

depos i t ion adj ourned, to be April 22, 1999, at 2:00 p.

resumed on

Signature of the

SUBSCRIBED AND SWORN to before me

day 0

f ~~~~----------------

this -

~l%

My Commission

expires: t~~iQ~-QL~---

NOTARY PUBLIC

ALDERSON" REPORTL\'G CO~\'IPA:\'"Y , INC.
(2021289. 2260 (8001 FOR DEPO , , , 1 14th ST., N. W., 4th FLOOR WASHINGTON ,
D.

C., 20005

Case 1:98-cv-00126-JFM

Document 846-17

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Page
ERRATA SHEET FOR THE TRANSCRIPT OF:
Notice Date: 04/29/99 Yankee Atomic Electric Company v. The United States Case Name: Case Number: 98-126C

Dep. Date: Deponent: Place:
TS#:

04/21/99 /
78077

Nancy H. Slater Washlngton, DC

CORRECTIONS:

Page

Line

Now Reads

Should Read

Reasons Therefore

th:rn~

---Case 1:98-cv-00126-JFM
Nancy Slater Thompson

--------Document 846-17
Washington , D.
Page 1

Filed 07/14/2004

Page 8 of 21
June 13

2002

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- X

YANKEE ATOMIC ELECTRIC
COMPANY , MAINE YANKEE ATOMIC

yertifled COpy
: Case No. 98- 126C
: 98- 474C,

POWER CO. , and CONNECTI CUT

YANKEE ATOMIC POWER CO.,

Plaintiffs

98- 154C

(Senior Judge

Merrow)
UNITED STATES OF AMERI CA

Defendant
- X

Washington, D. C.
Thursday, June 13 , 2002

Deposition of NANCY SLATER THOMPSON, a
witness herein, called for examination by counsel
for the Plaintiff in the above- entitled matter

pursuant to notice, the witness being duly sworn
taken at the offices of Spriggs &

Hollingsworth,

1350 I Street, N. W., Washington, D. C., at 9:40

a. m., Thursday, June 13,

2002, and the proceedings

being taken down in Stenotype by DEBORAH
WILKINS, RPR , 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 Nancy Slater Thompson

Document 846-17

Filed 07/14/2004

Page 9 of 21
June 13 ,

2002

Washington , D.
Page 94

it calls for a legal conclusion.

Obj ection,

foundation.
I do not recall.

Isn 't

such a limitation inconsistent

with the language that we just focused on , all
spent fuel or all SNF and/or HLW the purchaser
wishes to deliver?
MS. SULLIVAN:

Obj ection,

argumentative.

Obj ection to the extent it calls

for a legal conclusion.

You may answer.
No, I don

I t believe

it is

inconsistent.
to deliver.
16

It'

s all fuel that you wish to

deliver within the bounds of what you are entitled

Q.

A little while ago you referred to the

17 I

ACR as a planning

document. What

did you mean by

that?
MS. SULLIVAN:

Obj ection.

The

documents speak for

themselves.

You may answer.
As we have discussed in my prlor
deposition and previously in this deposition, the

ACR represents a planning

basis. The acceptance

rates are subj

ect to influences by future budget

Alderson Reporting Company, Inc.

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

Case 1:98-cv-00126-JFM Nancy Slater Thompson

Document 846-17

Filed 07/14/2004

Page 10 of 21
June 13 ,

2002

Washington , D. C.
Page 95

1 f:onstraints, lack transportation

casks.

of a facility, unavailability of

For example, no one would have

contemplated at the time that I did these that we
would have an RSA , Regional Services Agreement,
that would in fact contract out with someone else to provide the transportation which would have

financial effects and could have scheduling and
capaci ty

effects. It'

s a planning document.

And

in fact when I sat on the utilities side of the
table the industry recognized that not only was

the ACR for planning purposes

only, but that in

fact their DCSs were for planning purposes , and

they filled DCSs out consistent with that planning

presumption because providing a range of discharge
dates which might be over a 10- year period

certainly doesn't permit a system to do more than

plan.
A couple sentences before the end of

your answer, you said it was understood by the
industry that both the ACRs and the delivery
commi tment schedules were for planning purposes

only.

By using the word " only, " did you exclude - - what did you mean to exclude?
That we viewed the DCSs as

mean to

fungible,

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

Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 846-17

Filed 07/14/2004

Page 11 of 21
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2002

Washington , D. C.
Page 96

1 t:nd we have been through that in prlor deposition
as well; that the industry recognized that in fact
they wouldn' t be providing us with specifics about

what they wanted us to accept until they submitted

a final delivery schedule; and the final delivery
schedule actually does represent the commitment on

their part to this reactor, this time, this amount

of fuel, this age fuel, so greater specificity
with the FDS , ball park with the DCS.

give us

It was important for the utili ties to DCSs because of their very fungibility.
DCS, you couldn I t exchange

If you didn't submit a

your slot in the cue, and given that those
exchanges were possible, I don t know how one

would perceive a DCS as anything other than for
planning purposes.

Let'
purposes only.

s go back first just to the ACRs

and the statement that they are for planning

When you say that ACRs were for
planning purposes only, does that mean that the

ACRs were not meant to be binding on the
Department of Energy?
MS. SULLIVAN:
Obj ection , vague.

Obj ection to the extent it calls for a legal
Alderson Reporting Company, Inc. 1111 14th Street , N. W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

'-.
Case 1:98-cv-00126-JFM Nancy Slater Thompson
Washington , D. C.
Page 97

Document 846-17

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Page 12 of 21
June 13 ,

2002

conclusion.
I can

I t speak

to that legal issue or
In my

speak for a contracting

officer.

estimation, that' s
ask someone

a question you would have to

else.
When you published the 1995 ACR , did

you understand that you were committing the
Department of Energy to accept the amount of spent
fuel noted in the waste acceptance proj

ections in

that document?
MS. SULLIVAN:

Obj ection to the extent Obj ection, the Obj ection, vague.

it calls for a legal

conclusion.

document speaks for

itself.

My understanding is entirely
consistent with the sentence at the bottom of page

1 in the - -

I guess this would be Exhibit 3, which

is the 1995 ACR.

As specified in the Standard

Contract, the ACR is for planning purposes

only,

and this is not contractually binding on either
DOE or the purchasers.

And so were I to reason

this out
have

and not make

legal decislon,
engineer my clear

would

to say as

simple

reading

that language

would say if

it I S

in the

25

contract, everyone, including be well aware of that.

the utility, would

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 846-17

Filed 07/14/2004

Page 13 of 21
June 13 ,

Nancy Slater Thompson
Washington , D.

2002

Page 98

What about the delivery commitment

schedules?

Was it your understanding that those

similarly were for planning purposes only and not

contractually binding on either the utilities or
the department?
MS. SULLIVAN:

Obj ection to the extent
Obj ection

it calls for a legal

conclusion.

vague.
In my personal oplnlon , they were for

planning purposes only and in fact were completed
in such a way that not much but planning could be

done based on the information contained in them.
In addition, given the fungibility of the DCSs,

that'

s why there is a final delivery schedule

which is somewhat more than a planning

document.

And I do recall siting across the table from

numerous utility representatives, clearly
recognlzlng that the DCSs were planning

purposes,

and they in fact did not view themselves as

binding themselves to deliver specifically what

was described on the DCS.
During the time that you worked in the

waste acceptance division at the Department of Energy, do you recall anyone either within DOE or

~n in~stry

who

thought that the delivery

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

-Case 1:98-cv-00126-JFM
Nancy Slater Thompson
Washington , D.
Page 99

Document 846-17

Filed 07/14/2004

Page 14 of 21
June 13

2002

commi tment schedules were binding on either

industry or the department?
MS. SULL IVAN :

Objection ,

vague.

Obj ection to the extent it calls for a

legal

conclusion.
No, I don

It.
confused.
You said that the

You said something a minute ago that

guess has me a little

delivery commitment schedules are definitely for

planning purposes but they provided relatively
little information so you couldn

I t do

much

planning with them.

I may be getting your

language a little wrong, but what did you mean by

that?
The DCSs - - and
you need to put this
the DCSs,

ln the context of their fungibility

were they to remain as is, would provide you with
the location of the reactor to which you would

arri ve to pick fuel up,
fuel ,
DCS

so you know the type of

you can plan appropriately for the type of

cask to send.

Given that they have submi t ted
MTU,

one

for, let I s assume,
send.

you know how many

casks

The date on which you would show

up and schedule a pickup was not resolved
the FDS because that was actually done in
Alderson Reporting Company, Inc.
1111

until

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

-Case 1:98-cv-00126-JFM Document 846-17 Filed 07/14/2004 Page 15 of 21
June 13

Nancy Slater Thompson
Washington , D.

2002

Page 109

ask you --

Conceptually.
Let I S focus on approved. eve that a delivery been proposed and commi tment schedule that'
Approved. Do you be
1 i

approved is binding

on any

party?
Obj ection to the extent

MS. SULLIVAN

it calls for a legal

conclusion.

You may answer.
In my personal oplnlon, I do not

binding because do not believe that how you could bind loss am at believe discharge yourself to anything ln a range dates. I am at a loss as to how you could bind yourself when it I S not final. So a utility wouldn I t even be binding
itself as to the total amount of MTU of spent fuel

that it ~ould be delivering to DOE in a particular

year?
MS. SULLIVAN:

Obj ection to the extent
Obj ection

it calls for a legal

conclusion.

vague.
I think it is possible that a utility

25

~s

in fact could deliver less than it indicated on

DCS for whatever

reason.

1111 14th

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

Case 1:98-cv-00126-JFM Nancy Slater Thompson

Document 846-17

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Page 16 of 21
June 13 ,

2002

Washington , D.
Page 110

Did you view an approved delivery
commitment schedule as binding a utility to not

delivering more spent fuel than is set out on that
delivery commitment schedule?
MS. SULLIVAN:

Obj ection to the extent
Obj ection

it calls for a legal

conclusion.

vague.

It' s not the DCS that establishes allocation. It' s simply a reflection.
What sets out the allocation?
The ACR; and that' s for planning

the

purposes only because that allocation could

change.
And is it fair to say then that the
allocations reflected on the delivery commitment
schedules are not binding because they are based in turn on the allocations set out in the Annual

Capacity Reports which say explicitly that they
are not binding?
MS. SULLIVAN

Obj ection.

Calls for a

legal conclusion.
I really think that

Isa

legal lssue.

We are really stepping beyond what I feel skilled
enough to answer.
MR. SHAPIRO:

Do you want to take a

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

Case 1:98-cv-00126-JFM Nancy Slater Thompson

Document 846-17

Filed 07/14/2004

Page 17 of 21
June 13 ,

2002

Washington , D.
Page 159

wi th a better understanding of how to complete the form. This was a cooperative effort , mutually agreed to by both sides. That I s why we took the
time once we had drafted instructions to go back

over and discuss the instructions with them and
get comments.

Q.

Did you Vlew the DCS instructions as

guidance to utilities as to how to fill out their
delivery commitment schedule forms or did you view
the instructions more directly as requirements for
how the forms must be filled out by utilities?
MS. SULLIVAN:

Obj ection to the extent

it calls for a legal

conclusion.

You may answer.
I view the DCS instructions as my

would take completing expectations for what these forms in order for approve a DCS. For example, told them, which did on page
section 7 , section E , that if they exceeded their

allocation I would disapprove the DCS , I view that

as an instruction.
Actually, that point is also made

24 The total quantity of SNF designated for delivery
25

clear on page 5 , item number 2.

, that says:

~st

not exceed the allocation in the

ACR.

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

-Case 1:98-cv-00126-JFM
Nancy Slater Thompson
Washington , D.
Page 160

Document 846-17

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Page 18 of 21
June 13

2002

Exceeding the allocation will result in

disapproval of the DCS

(S).

This is Exhibit 10.
Do you recall whether you ever
disapproved a proposed delivery commitment

schedule for any reason other than the proposed schedule exceeding a utility s allocation of spent
fuel acceptance?
, I don I

I am not sure that
ask the question quite clearly

maybe I didn't

enough.

You don' t recall whether you did or
you recall that you didn't disapprove any for any
other reason?

I do not recall whether I disapproved

addi tional DCSs for reasons other than having
exceeded the acceptance

allocation.
commitment

We have been talking about you

approvlng or disapproving del i very

schedule forms submitted by utilities.

Technically, wasn t it the contracting officer who

was doing the approval or disapproval?

Yes, but as the contracting officer'
technical representative, it was my responsibility
by virtue of my signature to make a
Alderson Reporting Company, Inc.

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

Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 846-17

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Page 19 of 21
June 13 ,

2002

Washington , D.
Page 161

recommendation.
And as a practical matter , you were in
fact the person who was approving or disapproving;

wouldn I

t that

be a fair statement?

Well, I can' t make that statement.

That I s to

imply that the contracting officer had

no role whatsoever and did no

review.

Did the contracting officer ever
disagree with one of your recommendations

concerning the approval or disapproval of a proposed delivery commitment schedule?

Not that I

recall.

Did the contracting officer ever question one of your recommendations to approve or
disapprove a proposed delivery commitment

~ schedule?

17 I

Not that I recall.

Did tile contracting officer
in your role as COTR?
MS. SULLIVAN

ever

question any of your recommendations that you made

Obj ection.

Vague.

That I S a lot

of history and a lot of

time.

Unless you can be more specific, I am not

sure I can answer that question.

I am just asking for your
Alderson Reporting Company, Inc.

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

~~
Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 846-17

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Page 20 of 21
June 13 ,

2002

Washington , D.
Page 164

THE REPORTER:
MS. SULLIVAN

Reading and signing?
Yes, reading and

signing.
Off the

record.
4: 35 p. m., the
taking

(Thereupon, at

of the instant deposition was ceased.

Signature of the Witness

cQ $_
SUBSCRIBED AND SWORN to before me this

day of

' 200J...

\:j)lC1ufJ

t Wj

NOTARY PUBLIC

My Conunission Expires:

Feh-~

&'6 &CXJ,j

1111 14th Street ,

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

Alderson Reporting Company, Inc.

Case 1:98-cv-00126-JFM Document 846-17 Filed 07/14/2004 ERI-"... TA SHEET FOR THE TRANSCRIP I OF:

Page 21 of 21

Notice Date: June 17 , 2002
Case Name: Yankee Atomic vs. United States Case Number: 98- 126C- 987 4C Dep. Date: June 13 , 2002 Deponent: Nancy Slater Thompson Washington DC

Place:
Ref. No. :

4269CORRECTIONS:

Page

Line

Now Reads

Should Read

Reasons Therefore

cJ,/

47

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