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

Case 1:98-cv-00126-JFM

Document 840-15

Filed 07/07/2004

Page 1 of 18
June 13 ,

Nancy Slater Thompson
Washington , D.

2002

Page 109

ask you --

Conceptually.
Approved. Do you be
commi tment
1 i

approved

schedule binding

tha

Let I S focus on approved. eve that a delivery been proposed and tI

on any

party?
Obj ection to the extent

MS. SULLIVAN:

it calls for a legal

conclusion.
I do not

You may answer.
In my personal oplnlon

believe that it is binding because I do not

believe - -

I am at a loss as to how you could bind

yourself to anything in a range of discharge

dates. I am at a loss as to how yourself when it I S not final.

you could bind

So a utility wouldn 't even be binding

itself as to the total amount of MTU of spent fuel

that it would be delivering to DOE in a particular

year?
MS. SULLIVAN:

Obj ection to the extent

it calls for a legal

conclusion.

Objection,

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 840-15

Filed 07/07/2004

Page 2 of 18
June 13 ,

2002

Washington , D.
Page 110

Did you vlew 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 ACRi

the

and that I s for

planning

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:
legal conclusion.
I really think that

Obj ection.

Calls for a

Isa

legal issue.

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 840-15

Filed 07/07/2004

Page 3 of 18
June 13 ,

2002

Washington , D.
Page 159

wi th a better understanding of how to complete the
form .
This was a cooperative effort, mutually
took the

agreed to by both sides. That I s why we

time once we had drafted instructions to go back

over and discuss the instructions with them and
get comments.

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 approve a DCS. For these forms in order 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
25

clear on page 5, item number 2. 5, that
The total quantity of SNF designated for delivery

says:

~st
1111 14th

not exceed the allocation in the

ACR.

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
Washington , D. C.
Page 160

Document 840-15

Filed 07/07/2004

Page 4 of 18
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?
No

I don't.

I am not sure that
ask the question quite clearly

maybe I didn't

enough.
any for any

You don 't recall whether you did or
you recall that you didn

I t disapprove

other reason?

I do not recall whether I disapproved

addi tional DCSs for reasons other than having
exceeded the acceptance

allocation.

We have been talking about you
approvlng or disapproving delivery commitment
schedule forms submitted by utilities.
Technically

wasn' t it the contracting officer who
but as the contracting officer'
it

was doing the approval or disapproval?
Yes

technical representative

was my responsibility

by virtue of my signature to make a
Alderson Reporting Company, Inc. 14th Street , N. W. Suite 400 l- 800- FOR- DEPO Washington , DC 20005

1111

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

Document 840-15

Filed 07/07/2004

Page 5 of 18
June 13 ,

2002

Washington , D.
Page 161

recommendation.

Q.

And as a practical matter , you were in

fact the person who was approvlng or disapproving;

wouldn I

t that

be a fair statement?

Well, I can

I 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

Not that I recall.

Did tile contracting officer

ever

question any of your re commenda t ions that you COTR? In your role Obj ection. Vague. MS. SULLIVAN:
That I S a lot

made

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 , No W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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

Document 840-15

Filed 07/07/2004

Page 6 of 18
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

SUBSCRIBED AND SWORN to before me this

cQ $_

day of

200~

VS)lavtJ

r 0Pj

NOTARY PUBLI C

My Commission Expires:

&'6,

aCXJ3

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 840-15 Filed 07/07/2004 ER~,,"\ TA SHEET FOR THE TRANSCRIP I OF:

Page 7 of 18

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

Place: Washington DC
Ref. No. : 4269-

CORRECTIONS:

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Line

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Should Read

Reasons Therefore

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Case 1:98-cv-00126-JFM

Document 840-15

Filed 07/07/2004

Page 8 of 18

EXHIBIT

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

Document 840-15
McLean , V A

Filed 07/07/2004

Page 9 of 18
May 3 , 2002

Page 403

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C) CONNECTICUT YANKEE ATOMIC POWER COMPANY (98- 154C) MAINE YANKEE ATOMIC POWER COMPANY (98 - 4 74C) FLORIDA POWER & LIGHT COMPANY (98 - 4 83C) NORTHERN STATES POWER COMPANY (98 - 484C) DUKE POWER, A Division of DUKE ENERGY CORP. (98- 485C) INDIANA MICHIGAN POWER COMPANY (98 - 486C) SACRAMENTO MUNICIPAL UTILITY DISTRICT (98- 488C)
SOUTHERN NUCLEAR OPERATING COMPANY, et al., (98- 614C) COMMONWEALTH EDISON COMPANY (98 - 621C) BOSTON EDISON COMPANY

(99- 447C)
GPU NUCLEAR, INCORPORATED

(00 - 44 OC) WISCONSIN ELECTRIC POWER COMPANY, ( 00- 697C) POWER AUTHORITY OF THE STATE OF NEW YORK (00- 703C) OMAHA PUBLIC POWER DISTRICT ( 01- 115C) NEBRASKA PUBLIC POWER DISTRICT ( 01- 116C) TENNESSEE VALLEY AUTHORITY

(01- 249C)

Plaintiffs,
Defendant.

UNITED STATES OF AMERICA,

Washington, D.
Friday, May 3, 2002 Continued Deposition of RONALD MILNER , a witness herein, called for examination by counsel for
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 Milner

Document 840-15

Filed 07/07/2004

Page 10 of 18
May 3 , 2002

McLean , V A

Page 574

Department goes and prepares an APR , all the

allocations for the fifth year will be different than
they were originally in the ' 90s?
Yes, okay.

Okay.

So a utility that submitted a DCS

for an allocation based on the rates in the early

'90s may have a different allocation under current

forecasts?
MR. SHULTIS:
THE WITNESS:

Calls for speculation.
I would assume, yes.

BY MR. TOMPKINS:

Okay.

Do you know what the Department

is,

or the program OCWRM is currently planning on doing
about the fact that the allocations may be different
wi th the DCS forms?

Are they going to go

back and

have utilities prepare a new DCS form based on these

rates?
Actually we I ve not addressed that yet.

MR. SHULTIS:

Objection.

BY MR. TOMPKINS:

Haven' t addressed

it.

Would it be

reasonable to assume that utilities will have that

option?
MR. SHULTIS:
Obj ection , calls for

speculation.

Mr. Milner

s not a 30(b) (6) witness.

IIII

14th Street ,

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

..-....

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

Document 840-15

Filed 07/07/2004

Page 11 of 18
May 3 , 2002

McLean , V A

Page 575

THE WITNESS:

The Department simply has
We decided we should

not addressed that yet.

probably focus our efforts on getting a site first
and then work out the details.
BY MR. TOMPKINS:

I I d like to turn your attention back to
Milner Exhibit 43 which are the DCS

instructions.

Under the general instructions which start

on page one and go on page two, item 7C, we had
discussed this yesterday but I just want to now apply
this to the situation we' ve just been talking

about.

It states that in the event that such circumstances
change, all DCS' s previously approved by DOE may need

to be reevaluated by DOE and the purchaser.

Would this type of change of allocation be
the type of event that may implicate this instruction?
MR. SHULTIS:
Obj ection , calls for a legal

conclusion and also speculation.
THE WITNESS:

In my opinion it would.

BY MR. TOMPKINS:

One final question on this DCS form and
believe you testified about this earlier

too.

Instruction 7B states that once a purchaser has an

allocation ,

any SNF owned by the purchaser can be

designated for delivery against the

allocation.

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 840-15

Filed 07/07/2004

Page 12 of 18

CERTIFICATE OF REPORTER

UNITED STATES OF AMERICA) ss.
COMMONWEALTH OF VIRGINIA)

, CYNTHIA R. SIMMONS, RPR, CRR, the officer before whom the
foregoing deposition was taken , do hereby certify that the witness whose testimony

appears in the foregoing deposition was duly sworn by me; that the testimony of said
witness was taken by me to the best of my ability and thereafter reduced to

typewriting under my direction; that I am neither counsel for , related to , nor
employed by any of the parties to the action in which this deposition was taken , and

further that I am not a relative or employee of any attorney or counsel employed by
the parties thereto , nor financially or otherwise interested in the outcome of the

action.

Notary Public in and for
the Commonwealth of Virginia

My Commission expires: 11/30/2004

"..,,'. - ,

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

Document 840-15

Filed 07/07/2004

Page 13 of 18
May 7 , 2002

Washington , D.
Page I

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

(98 - 126C) (Merow ,

S. J.

CeRTIFIED COP

CONNECTICUT YANKEE ATOMIC POWER
COMPANY

(98 - 154C) (Merow, S. J.

) Volume I

MAINE YANKEE ATOMIC POWER COMPANY) Washington, D. C.
( 98 - 4 74 C) (Merow ,
S. J

) Tuesday

Plaintiffs,
THE UNITED STATES,

) May 7, 2002

Defendant.
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

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 3: 48 p. m., Tuesday,

May 7 , 2002 , and the

proceedings being taken down by Stenotype by CHERYL

A. LORD, RPR , CRR, 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 Ronald A. Milner

Document 840-15

Filed 07/07/2004

Page 14 of 18
May 7 , 2002

Washington , D.
Page 28

department I s position

at the time that the delivery

commitment schedule submitted by purchasers had to be

based upon the waste acceptance schedule reflected
here on page 5?
MR. SHULTIS:

Obj ection.

The document
(b) (6)

speaks for itself , Mr. Milner is not a 30

witness, and calling for a legal

conclusion.

In my opinion , that I s what this

states,

yes.
BY MR. SKALABAN

And then also, sir , if you could please
take out Exhibit

43.

And on page - - for

the record

Exhibit 43 is the DCS

instructions. It I s enti tIed,

United States Department of Energy instructions for
completing the appendix C delivery commitment
schedule general instructions.

And item two, it says, who should

submit.

And it states there, the DCS should be submitted by
all purchasers with allocations in the 1991 annual

capacity report.
And that further suggests , does it not
that the department was requiring the purchasers to
use this waste acceptance schedule here on page 5 of

the -- of Milner 42 as well as the

individual

25 \.. breakdown of allocations

which appear on page 9 o

Alderson Reporting Company, Inc.

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

Case 1:98-cv-00126-JFM

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May 7 , 2002

Ronald A. Milner
Washington , D.

Page 29 ,

1991 ACR?

MR. SHULTIS:

Obj ection.

The documen

speaks for itself , calls for a legal conclusion.
In my opinion, that' s what it states.
BY MR. SKALABAN

And if I could turn your attention to the
specific instruction portion of this document, Milner

43 of the DCS instructions, there' s a paragraph
entitled, 2. 7, on page

And if you could just take

a moment to read paragraph 2. 7 .

Okay.

This paragraph says - - or comma, it states, quote:

- I I m sorry.

In the second sentence of this paragraph after a
The total quantity of SNF

designated for delivery must not exceed the

allocation in the ACR , semicolon, exceeding the
allocation will result in the approval of the DCS.
MR. SHULTIS:
the document.
MR. SKALABAN

Obj ection, mischaracterizes

, Il m sorry.

Okay.

Thank you, counsel.
BY MR. SKALABAN

Exceeding the allocation will result in

the disapproval of the DCS.
AAd ooesn' t this part

2, 7 further

confim

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 840-15

Filed 07/07/2004

Page 16 of 18
May 7 , 2002

Washington , D.
Page 30

that the department will require the purchasers to

follow the waste acceptance schedule in page 5 and
page 9 of the 1991 ACR?
MR. SHULTIS:

Obj ection.

The document
(b) (6)

speaks for itself , Mr. Milner is not a 30

witness, calls for a legal

conclusion.

In my opinion, that' s what it says
indicating here.
BY MR. SKALABAN

And is therefore, assuming that purchasers
followed the instructions and submitted DCSs on the

basis of the 1991 ACR -- the delivery commitment
schedules would then be based upon a waste acceptance

schedule that was not consistent with the Nuclear
Waste Policy Act?
MR. SHULTIS:

Objection, calls for a legal

conclusion and -- objection, calls for a legal

conclusion , witness.

and also Mr. Milner is not a 30

(b) (6)

MR. SKALABAN

Specifically to give you further
clarification, I mean the Nuclear Waste Policy Act

schedule linkages between the MRS and the
MR. SHULTIS:

repository.

Same obj ections .

BY MR. SKALABAN

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 840-15

Filed 07/07/2004

Page 17 of 18
May 7 , 2002

Washington , D.

Page 31

The DCSs were -- do

~u ~erstand

question?
No, I don't.

I mean , assuming then , that the purchasers

followed the instructions and submitted DCSs based on

the schedules in the 1991 annual capacity

report,

then the DCSs would be based upon a waste acceptance

schedule that was inconsistent with the statutory
linkages in the Nuclear Waste Policy Act?
MR. SHULTIS:
legal conclusion.

Objection.

It calls for a

You' re talking schedule linkage?
BY MR. SKALABAN

Yes, sir.
Well , I just donl t view it as inconsistent
in the sense that certainly in my opinion at the time there was a possibility of that schedule linkage
being removed.

But it was -- but the schedule linkage was

there?
Yes.
And so as the law then existed and as it
exists now , because I don

I t believe - -

scratch that.

25 based on a waste acceptance schedule that was

As the law then existed, the DCSs were

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 840-15 Filed 07/07/2004

-Page 18 of 18 May 7 , 2002

Ronald A. Milner

Washington , D.

inconsistent with the Nuclear Waste Policy
schedule linkages as they existed at this time?

Sitting here today looking at that, that

would be my opinion.
And to your knowledge, the schedule

I inkages have never been

changed.

There' s - -

I 1

sorry.
Let me ask a more artful

question.

There hasn 't been a change in the law

removing those schedule linkages?

No, there has not.
Mr. Milner, if you could just give me a

general overview of how

as the chief operating

officer of OCRWM, how you envision the actual overall

process of waste acceptance, transportation, disposal as you unfolding when it begins in approximately
anticipate in 2010, an overVlew, just kind of a
general overview of the

process.
I I m sorry.

How do you envision that working?
MR. SHULTI S :

Which process?

MR. SKALABAN

The process of the -- well,

let I S say the

real logistical process of sort of

waste acceptance, transportation,
BY MR. SKALABAN

disposal.

How do you envision that happening in

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