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

Case 1:98-cv-00126-JFM

Document 846-12
Washington , D.

Filed 07/14/2004

Page 1 of 14
May 7 , 2002

Ronald A. Milner

Page 17

facilities would be able to accept waste at the same

time the department might be able to shorten or speed
up the MRS somewhat?

Correct.
I'd like to call your attention while

we' re on this document just to page 18 for a moment.
In the bot

torn paragraph it

says:

The DOE recognizes

that under current conditions waste acceptance as a

waste management facility cannot begin in

1998.

Furthermore the delay in repository schedule and the

linkages between the schedule and key milestones in
the siting and construction of an MRS facility make
it unlikely that the DOE will be able to start

accepting waste significantly before 2003.
Do you agree that this accurately
describes DOE I S beliefs at the time of June 1988?
MR. SHULTI S :

Obj ection.

The document

speaks for

itself.
I believe it does, at least the

department I s opinions

given the

linkages.

BY MR. SKALABAN

And would it be fair that for a

purchaser - -

and what I mean by that, someone who

has -- utility has executed a standard contract
would it be fair for a purchaser to read that to

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Case 1:98-cv-00126-JFM

Document 846-12

Filed 07/14/2004

Page 2 of 14
May 7 , 2002

Ronald A. Milner

Washington , D.
Page 18

1 ~assume that the department is not going it make the
1998 date and is unlikely to start accepting waste
significantly before 2003?
MR. SHULTIS:

Objection, calls for

speculation, asking for a legal

conclusion.

Well, I think to me this would indicate that the department was being candid in terms of its

views of a schedule at that point in

time.

How the purchasers would interpret
can't say. BY MR. SKALABAN

that, I

And in " candid, "

you mean you' re giving

them a frank opinion that it I S unlikely -- or that

they cannot begin in 1988 and it'
much before 2003?
MR. SHULTIS:

s unlikely to begin

Objection, asked and

answered.
Yeah, I believe

so.

(Discussion off the record.
MR. SKALABAN

Put on the record that I

intended to say 1998.
BY MR. SKALABAN

And that doesn't change any of your
answers, I assume?
I assumed that myself.

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

Document 846-12

Filed 07/14/2004

Page 3 of 14
May 7 , 2002

Washington , D.
Page 19

r-

Q, ~w,

Mr. Milner, actually to perhaps speed

things up a little bit, there are three exhibits I'd
like to ask you about, and they re 20, 33, and 42.
BY MR. SKALABAN

Now, on No. - - Exhibit 20, which is,
report to Congress on reassessment of the Civilian Radioactive Waste Management program, dated November

1989 - - 20 - -

if you could turn for a moment to page

7 -- or roman numeral seven, the executive summary

section.
The fourth paragraph down refers to the

secretary I S comprehensive review of the schedule for
repository-related activities, and it states, quotes:
This schedule shows a significant slip for the expected start of repository operations from the year
2003 to approximately

2010.
at this time, November 1989,

And this I assume accurately reflects the

department I s position

when it reported to Congress that it anticipated that
a repository would not be available until 2010?

Yes.
MR. SHULTIS:

Objection.

The document

speaks for

itself.
BY MR. SKALABAN

And your answer to that question was, yes?

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

Document 846-12

Filed 07/14/2004

Page 4 of 14
May 7 , 2002

Washington , D.
Page 20

In November of 1989 that certainly
reflected the department

I s opinion -

- position.

Now, on page 12 , in the first full

paragraph, it again refers to the statutory linkages

between the MRS and the

repository.

And it states in

the second sentence, quotes:

If the current

statutory linkages to the repository are

maintained,

an additional delay of five years would result, with

startup estimated at 2007 for the basic MRS

facility.

Does this suggest that at this time DOE'

best estimate of the earliest time that it could
begin an MRS operation in view of the scheduled
linkages was 2007?
I think it reflects the department I s
at the time, yes.

view

If the linkages remained in

place,

that would be the startup

date.

At that time the department was estimating

a gap between - - in view of the statutory linkages a
gap of three years between when the repository would
be operational and when the MRS would be operational?

Yes, that appears to be the case, yeah.

Okay.

Do you have any reason to believe

that the department could have accelerated that

three- year - -

the ability of the MRS to be online

three years before the repository any further under

.-J

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

Document 846-12

Filed 07/14/2004

Page 5 of 14
May 7 , 2002

Washington , D.
Page 21

the scheduled linkages?
MR. SHULTIS:

Obj ection, calls for

speculation.
I don
I t

know.

BY MR. SKALABAN

Was there any talk that you were aware of
that instead of three years, maybe you could have the
MRS online in four years?
MR. SHULTI S :

Same obj ection.

Take a year longer?
BY MR. SKALABAN

Well, a year earlier.
Extend the time delta to four

years.

don't recall.
I mean, this was at this time the

department I S best estimate -Yes.
-- of how quickly it could get an MRS up

and running under the current statutory linkages?

Correct, correct.
And, sir,
if you could, please, turn to

Milner 33,

which for the record is the annual

capacity report of December 1990, beginning with a

Bates number of HQ 0002486.
m sorry.
Wha t was the page number

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

Document 846-12
Washington , D.

Filed 07/14/2004

Page 6 of 14
May 7 , 2002

Page 22

again?
MR. SHULTIS:

That was just the

cover.

Right?
MR. SKALABAN

Yep.

Okay.
BY MR. SKALABAN

And here again , sir , on page 5, you see
that the beginning paragraph, the last sentence of
the beginning paragraph appears to estimate the

possibility that the MRS could be ready three years
prior to the repository operations.
Is that fair?

Correct.
And that would again be the department'

best estimate of when it could feasibly get an MRS up
and running before a repository?

Yes.
MR. SHULTIS:

The document speaks for

itself.
BY MR. SKALABAN

And we did look at this document

before,

and there was the upper and lower bounding case?

~irst full paragraph

Q.

I believe that' s true, yeah.

I just want to call your attention in the
on page 4
-- almost in the

.-J

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-Case 1:98-cv-00126-JFM

-Filed 07/14/2004 Page 7 of 14
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Document 846-12
Washington , D.

Ronald A. Milner

Page 23

middle of the paragraph, it refers to the lower

bounding case, and it

says:

The lower bounding case

represents a receipt rate that would be in compliance

with the amendments act restriction on storage limits

at an MRS before a repository starts
Do you see that?

operations.

Yes.
And then it goes on to say

that:

However,

this case assumes removal of the schedule linkages
wi th the repository imposed by the amendments

act.

In view of that passage, it' s fair to say

that the lower bounding rate in the lower capacity
report, which for your reference can be found on page

7, is based on a change
the law?

is based on a change in

MR. SHULTIS:

Obj ection , calls for a legal

conclusion.
Yes, because it removed one of the

linkages.
BY MR. SKALABAN

It would require the removal

--a

Congressional - some of the

a law , a change in the law to remove

the scheduling?
s correct.

That'

If we could turn to Milner 42 , which lS

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Case 1:98-cv-00126-JFM

Document 846-12
Washington , D.

Filed 07/14/2004

Page 8 of 14
May 7 , 2002

Ronald A. Milner

Page 24

the December 1991 annual capacity report, on page
it has what appears to me a similar estimate on when an MRS facility could be available to start spent
fuel acceptance in view of the schedule linkages

between an MRS and the operation of a

repository.

Do you see that in the middle paragraph?
I do.

And here again I ike

in the 1990 annual

capacity report the department is estimating that the

time - -

that it could not start MRS facility

operations until at least 2007 in view of the
statutory schedule linkage?
. i

Correct.
And again, at this point in time, the
repository was anticipated to be in operation in
2010, so the department here is figuring that at the

earliest - -

and I' m focusing on the language, until

at least 2007, the earliest that an MRS could be
available to accept spent fuel before a repository
could be available to accept spent fuel would be
three years?
MR. SHULTIS:

Obj ection.

The document

speaks for itself.
BY MR. SKALABAN

Is that fair?

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

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

Document 846-12
Washington , D.

Filed 07/14/2004

Page 9 of 14
May 7 , 2002

Page 25

Correct.
Now, sir,
on page 5 , there are the waste

acceptance rates for the 1991 ACR.

Do you see that, sir?

Yes.
And this is a waste acceptance schedule
that is based on the assumption of again like the
1990 ACR a change in the law?

Correct.

I think at that point in

time,

it was envisioned that if the nuclear waste

negotiator were successful in finding a volunteer
site for an MRS that that volunteer host would

certainly support a change in the schedule

linkage.

And it would still, however, would still
require Congress to change the law, presumably the

president to sign the law or

Correct.
or an override veto, but it would
require a change in law to make the schedule linkages
go away?

Correct.
Now, this waste acceptance schedule on
page 5, which is based on the absence of the schedule
linkages in the statute, these were the basis for the
DCS submittals; is that correct?

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

Document 846-12
Washington

Filed 07/14/2004

Page 10 of 14
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?

course.

.. o

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. SHULTIS: Objection , vague , calls for a legal conclusIOn. Mr. Milner is not a 30(b)(6) witness. I guess in my opinion 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 provision , whereas the department is going to look at the individual case , ifit can accommodate it at that time , it' s going to move it
back a little bit? That' s the way I would read it.

MR. SHULTIS: Asked and answered.

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. SHULTIS: Objection , calls for a legal conclusion. 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. 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 , calls for a legal conclusion. I can t think of any. MR. SKALABAN: Can we go off the record a

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. 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?

second?
(Whereupon. at 5:08 p.
, the taking

:~Ci'
Signature of

the instant deposition adjourned.

the Witness
day

SUBSCRIBED AND SWORN to before me this /J2!i-

/f'

20

-#a ry Public

;2~~;k iZu7Ijc-

My Commission Expires:

MR. SHULTIS: Objection , calls for speculation , asks for a legal conclusion. I guess in my opinion , if for that specific failed fuel , if there 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 fuel 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

20

12 (Pages 42 to 45)
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Alderson Reporting Company, Inc. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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

Document 846-12
Washington, D.

Filed 07/14/2004

Page 11 of 14
May 8 , 2002

.J'

Page 47

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C)

(Merow, S.

COMPANY
CONNECTICUT YANKEE ATOMIC POWER

Volume II
Washington, D . C . .

(98- 154C)

(Merow, S.

MAINE YANKEE ATOMIC POWER COMPANY) Wednesday

(98- 474C)(Merow, S.

) May 8, 2002

Plaintiffs

CERTIFiED COp,~
THE UNITED STATES,

Defendant.
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. m., Wednesday, May 8, 2002, and the

proceedings being taken down by Stenotype by CHERYL

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

direction.
I11II4th Street, N. W.
Alderson Reporting Com~any, Inc. Suite 400 I- 8oo- FOR
'fEPO Washington

, DC 20005

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

Document 846-12
Washington , D.

Filed 07/14/2004

Page 12 of 14
May 8, 2002

Page 283

(Milner Exhibit No. 108

was marked for

identification.
(Discussion off the record.
BY MR. SKALABAN

Do you recognize this TRW letter?

It I S dated
addressed to you.

July

30, 1993, and it '

I don t offhand recall it, no.
It says:

The attached report provides the

current status of all domestic utility dry storage

facilities.
Do you know why you or your office might
have requested TRW do a report on this subject? Just to stay abreast of the current status

storage

at the

utili ties.
important
to you to do

And it was

so?

Yeah.

In my mind it

was.
-- why was

And is
important to you?

that

for purposes

well, for acceptance, I think it was

important to know whether we would be picking up

spent fuel from a spent fuel pool, from a dry storage
facility, what the nature of the dry storage facility

was.

In my opinion, it would potentially affect

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

Document 846-12
Washington , D.

Filed 07/14/2004

Page 13 of 14
May 8 , 2002

Page 284

which fuel the utility shipped to

us.

How so?
utilities verbally -- I don t recall

anything in writing -- but I think utilities verbally indicated to us that if they placed fuel in dry
storage, they would more likely give us fuel out of

spent fuel pool than pull it out of dry
I see.

storage.

If I can call your attention to

Bates No. HQ 0013570, and it' s a page entitled, dry
storage requirements, 1998 to

2002.

Yes.
In the I guess the third paragraph, it

says:
1998.

There are eight shutdown reactors prior to No additional reactors shut down during the
to 2002.

period 1998

The annual maintenance cost at

each of these reactors is assumed to be 4. 5

million.

Do you know where the 4. 5 million figure

came from?
No, specifically I don
I vaguely

recall at some point in time that utilities were
basically asked what their costs were.

Whether that

is the basis of this figure, I don t know.

it' s -- or
,Jt,~)

Okay. Do you have any reason to believe it I S an accurate estimate?
I mean, do you believe it' s an accurate

Alderson Reporting Company, Inc.

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

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

Document 846-12
Washington. D.

Filed 07/14/2004

Page 14 of 14
May 8 , 2002

Page 2S4

Page 286
MR. SHULTIS: Otl'the record. MR. SKALABAN: We are concluded. (Whereupon , at 6:02 p. . the taking of
the instant deposition ceased.

which fut:! the utility shipped to us. Q. How so? .'\. Utilities verbally -- 1 don t recall anything in writing -- but I think utilities verbally indicutcd to us that if they placed fuel in dry storuge. they would more likely give us fuel out of spent fuel pool than pull it out of dry storage.

)

1~~

I () storage requirements, 1998 to 2002.

II A. 12 Q.
13

Bates No. HQ 0013570 , and it' s a page entitled. dry
Yes. In the I guess the third paragraph. it suys: There are eight shutdown reactors prior to

Q. I see. I f I can call your attention to

9.~

:Ji.:i2.e

SUBSCRIBED AND SWORN to before me this

0'7/),

day of

13

14 1998. No additional reactors shut down during the

14 My Commission

/ot Expires: .
ary

PlYblic

j-tf
5/lt,/

!r..4.:

15 period 1998 to 2002. The annual maintenance cost at 16 each of these reactors is assumed to be 4.5 million.

17
19

Do you know where the 4. 5

million figure

20 recall at some point in time that utilities were 21 basically asked what their costs were. Whether that 22 is the basis of this figure, I don t know. Q. Okay. Do you have any reason to believe
24 it s -- or it s an accurate estimate?

18 came from? A. No, specifically I don t. I vaguely

23

25

( mean , do you believe it' s an accurate

Page 285

Page 287

estimate at the time A. I don t know Just don t know. Why was the department looking for this information about the number of shutdown reactors and the annual maintenance cost of those reactors? MR. SHULTIS: Objection , asked and answered.

Q.

CERTIFICATE OF COURT REPORTER UNITED STATES OF AMERICA DISTRICT OF COLUMBIA I, CHERYL A. LORD, the reporter before 5 whom the foregoing deposition was taken , do hereby certify that the witness whose testimony appears in the foregoing deposition was sworn by me; that the testimony of said witness was taken by me in machine
shorthand and thereafter transcribed by

A. The department was interested in the

\ 0 status of reactors and storage. and certainly we had

II been interested in utility cost.

12 13
20
19

10 computer-aided transcription; that said deposition is
II a true record of the testimony given by said witness; that I am neither counsel for , related to , nor

BY MR. SKALABAN: Q. And part of your interest in utility cost 14 was to help promote efticiency in the overall system 15 and at the individual reactor sites

16 17A. 18

Yeah.

12 13 employed by any of the parties to the action in which 14 this deposition was taken; and , further, that I am 15 not a relative or employee of any attorney or counsel 16 employed by the parties hereto , or financially or
) 7 otherwise interested in the outcome of this action.
CHER YL A. LORD Notary Public in and for the District of Columbia
My Commission expires April 3D , 2006

2\
22

2J 24
25

MR. SHULTIS: Asked and answered. A. It had been a goal of the department to minimize those costs to the extent possible . looking at the industry as a whole. MR. SKALABAN: Mr. Milner . I have no further questions. THE WITNESS: Okay. MR. SHULTIS: I don t have any redirect. MR. SKALABAN: Great.

61 (Pages 284 to 287)
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