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

- - - - - -

--- - - - - - - - - -- - - - - - - - - - -- - - - - - - - - - - - -Document 840-12
Victor W. Trebules,

Case 1:98-cv-00126-JFM

Filed 07/07/2004

Page 1 of 25

Jr.
Page 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C)

(Merow, S.

CONNECTICUT YANKEE ATOMIC POWER COMPANY

(98- 154C) (Merow, S. J. )
MAINE YANKEE ATOMIC POWER COMPANY

(98- 474C) (98- 483C)

(Merow, S.

FLORIDA POWER & LIGHT COMPANY
(Wilson, J.

NORTHERN STATES POWER COMPANY

(98- 484C)(Wiese, J.
DUKE POWER, a Division of DUKE ENERGY CORP.

(98- 485C) (98- 486C)

(Sypolt, J. (Hodges, J.

INDIANA MICHIGAN POWER COMPANY SACRAMENTO MUNICIPAL UTILITY DISTRICT

(98- 488C)(Yock, S.
""~1"
SOUTHERN NUCLEAR OPERATING COMPANY, et

(98- 614C)

ale :

(Merow, S.

COMMONWEALTH EDISON COMPANY
( 98 - 62 1 C ) (H ew

it t , J.

BOSTON EDISON COMPANY (99- 447C) (Allegra, J. GPU NUCLEAR, INCORPORATED

(00- 440C)(Bush, J.
WISCONSIN ELECTRIC POWER COMPANY
( 00 - 6 9 7 C) (Merow,

S. J .
: VOLUME

POWER AUTHORITY OF THE STATE OF NEW YORK

(00- 703C)(Damich, J.
OMAHA PUBLIC POWER DISTRICT

(01- 115C)(Bush, J.
NEBRASKA PUBLIC POWER DISTRICT

(01- 116C)(Sypolt, J.
TENNESSEE VALLEY AUTHORITY

: Discovery
: Judge: : (Judge

(01- 249C)(Bruggink, J.
fJk:(~jJ .1.

Plaintiffs,

: Sypolt)
: PAGES

:1 - 241

Esquire Deposition Services

800- 441-3376

: '

--- ------- ---- ------- - - -- ---- ----- - --- - ---Case 1:98-cv-00126-JFM Document 840-12 Filed 07/07/2004 Page 2 of 25

Victor W. Trebules, Jr.
Page 2
THE UNITED STATES,

Defendant.

Deposi tion of victor

W. Trebules, Jr.

Washington, DC

Wednesday, April 17, 2002

Reported by:
JOB NO.

Denise

Dobner Vickery, RMR , CRR

144458
800- 441-3376

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Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 3 of 25

Victor W. Trebules, Jr.
Page 10
whatever reason, as long as a question is not pending,

I would be more than happy to accommodate you in taking
a break.

(Nods head).
Could you just quickly just describe your

education after high

school.
I went to Ohio University for

All right.
five years.

I got a degree in engineering and a
I then did graduate

bachelor I S degree in physics.

work at

Lehigh University in

Bethlehem, Pennsylvania.

I got a master I S degree in mechanical engineering.

And when did you receive that final degree?
1972 I graduated from Lehigh.

And that was the master '
Yes.
Master I S degree in mechanical

engineering.
Okay.
When did you first -- &trike that.

Do you presently work for the Department of

Energy?
Yes, I do.

Okay.

When did you first -- when did you

start working for the Department of Energy?
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Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 4 of 25

Victor W. Trebules , Jr.
Page 11

Actually, I started working for the Atomic

Energy Commission in 1972, which became the Energy
Research and Development Administration, which became
the Department of Energy.
I don' t remember the exact

year ERDA became the Department of
was about -- I don' t remember.

Energy.

I think it

Okay.

But you were there when the Department

of Energy was first formed it sounds like?

Yes.

Yes.

What was your first position in the Department
of Energy?

The Department of Energy or the Atomic Energy

Commission?
m going to start with the Department of

Energy.
Okay.
Again, I don' t remember exactly when

name changed, but I spent the first five years working
for the Pittsburgh Naval Reactors Office after I

graduated from college, and then I transferred to the
Atomic Energy Commission headquarters in Germantown,

Maryland and I worked in the Office of Nuclear Energy

Programs.
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Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 5 of 25

Victor W. Trebules, Jr.
Page 16
Radioactive Waste Management?
I don t remember the title of my first

position.

It was probably program analyst or

something like that, but I' m not exactly

sure.
Wha t

What did that position entail?

were

your responsibilities in that position? First major assignment I could remember was

coordin~ting the preparation of the mission plan for

the Civilian Radioactive Waste Management

Program.

Was there anything else that your role
entailed in that position?
MR. SHULTIS:
THE WITNESS:

Obj ectlon, vague.
That preparation of the

mission plan was pretty much a full-time activity for a
number of years.

So there might have been other minor

assignments I was given, but, you know, overall it was
primarily the mission plan.
BY MR. EIDUKAS:

Okay.

Did there come a time when your

position at the Office of Civilian Radioactive Waste

Management changed from program analyst working on the
mission plan?
Esquire Deposition Services

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Filed 07/07/2004 Page 6 of 25

Case 1:98-cv-00126-JFM

Document 840-12

Victor "V. TrebuJes , Jr.
Page 241

ESQUIRE DEPOSITION SERVICES

1020 19TH STREET, NORTHWEST

SUITE 620
WASHINGTON, D.

20036
ERRATA SHEET

Case Name:

Yankee Atomic Electric Co., et ale V.

The United States Witness Name: Victor W.
Depos i tion Date:
Job No.

Trebules,
2002

Jr.

April 17,
Change

144458,
Line No.

Page No.

Page 13, Line 17, change " Fishll

to " Fission

; Page 14, Line Ii,

change II Fish" to Fission ; Page 15, Line 4, change " Whitewater " to

I 9

Light Water ; Page 17, Line 19, change " technical"
Page 33, Line 1, change to read 11
one

to " executive
; Page 33,

whi ch

was our..

Line 3, place a period after " that.

, delete II where

, start new

sentence with "

; Page 56, Line 11, change "

field" to " fuel"
would

Page 64, Line 16, change " Al"

to II Alan

; Page 82, Line 11, change

" to lI and" ;

Page 98, Line 3, change to read 11

more

than. . . " ; Page 102, Li ne 10, change "

ll to " were

; Page 117,

Line 5, change II ground" to " round" ;
overview "

Page 126, Line 17, change

to " for review ; Page 138, Line 12, change " 1994"

to

1984" ; Page 153, Line 14, change " change "

to II changed" ;

Page 168,

line 4, delete " fold" ; Page 192, Line 1, change " 1995"

to " 1985"

Page 205, Line

22

15, change " 50, 000" to " 15, 000" ;
" in here

Page 226, Line 16,
d on 241a)

change " When "

to " Then " and delete

(Cont'

Signature \j~

0J.

~~ S-~;~:n

Esquire Deposition Services 1- 800- 441- 3376

Case 1:98-cv-00126-JFM VICTOR W. TREB(jLS, Filed 07/07/2004 Document 840-12 Jr.

Page 7 of 25
Page 241 a

ERRATA SHEET (CONTINuED)

\Vitness Name: Victor W. Trebules, Jr.
Page 226. Line 17 and 18 ,

bring Line 18 up to Line 17 , should be incorporated as

same paragraph , should read as ... Waste Negotiator. 'Nl1en Congress created...
Page 236, Line 13 ,

change " WIP" to " WIPP" ; Page 188, Line 10 , delete " past or
" to "

Page 188 ,

Line 16 change "

not"

Signature

~~I

S--~o- O7-

Date

.'"

Case 1:98-cv-00126-JFM

Victor Trebules

Document 840-12

Filed 07/07/2004

Page 8 of 25

ORIGINAL
In the u. s.
Court of Federal Claims
--------- --x

Yankee Atomic Electric
et al

Co.,
98- 126C 98- 154C

NO.

98- 474C
United States of America

--x

April 19,
DEPOSITION OF:

2002

Victor W. Trebules,

Jr.
notice,

a witness, called by counsel pursuant to

commencing at 9: 00 a. m., which was taken at

Spriggs and Hollingsworth, 1350
Washington, DC

I St., NW,

, 21

Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Victor Trebules

Document 840-12

Filed 07/07/2004

Page 9 of 25

,I

Page 4
(Morning Session)

Stipulations
(It is stipulated and agreed by and

between counsel for the respective parties that the reading and signing of this transcript by the
witness are not waived.

further stipulated and agreed that the filing this transcript with the clerk
the court, be and the
same

hereby waived.

Whereupon,

Victor W. Trebules,

Jr.
and,

was called for examination by counsel

having been previously sworn, was recalled and testified as

follows:

DIRECT EXAMINATION:
BY MR. STOUCK:

Good morning,
Esquire Deposition Services

Mr. Trebules.

Would you

800- 441-3376

,,

Case 1:98-cv-00126-JFM

Document 840-12

Victor Trebules

Filed 07/07/2004

Page 10 of 25

Page 5
agree that at the time that you were working on the plan in 1984 and 1985 it was an objective of the

spent fuel program that that program be operated in
an economically efficient manner?
MR. SHULTIS:

Objection as to

economically efficient.

It'

s vague.

I believe we said words to that effect in

the mission plan, that'

s correct.

Why was that an objective?

To the best of my recollection, I think
of'

we used phrases like fiduciary
~' 0

responsibility.

People working in the program felt that they had an obligation to try to execute the program
efficiently and effectively.

Why was that an objective?

We knew the program was going to cost a
lot of money over its lifetime.
guess

it'

s my opinion that the people

fel t

they ought to try to be efficient in

carrying

out that program.

Let'

s pull out the mission plan which I

think is exhibit six , if you would, please.
Esquire Deposition Services

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

- -- -

- - - - -

Document 840-12

Victor Trebules

Filed 07/07/2004

Page 11 of 25

In the U.

S. Court of Federal Claims

--x
Yankee Atomic Electric Co.,
et al
: NO. 98- 126C

98- 154C

98- 474C
United States of America

--- - -- --x

April 19,
DEPOSITI' ON OF:

2002

victor W. Trebules,

Jr.
notice,

a witness, called by counsel pursuant to

commencing at 9:00 a. m., which was taken at

Spriggs and Hollingsworth, 1350 I'
Washington, DC

St., NW,

Esquire Deposition Services

1~800- 441- 3376

,.

.. .
Case 1:98-cv-00126-JFM Document 840-12 Filed 07/07/2004

...
Page 12 of 25

Victor Trebules
Page 59

Errata page of Deponent

Please note any errors on this sheet. The
reasons may be

general, such as " to

correct

stenographic error" or " to clari~y. the record.

When completed, send this page to the attorney

who took your depos i tion,
Page

NOT the court reporter.

Line

Correction

Reason For Change
; Page 10,

Page 8, Li ne

1, change " depos itory

ll to " repository

line 5, change lI andll to "

ll and change lI operations ll to
whatll to " somewhatll

operation ; Page 20, Line 17, change II some
Page 22, Li ne
5, change " castll

to II cask" , Page 22, Li ne

9, change

castll to II cask" ;

Page 26, line 19 and 20, should be

incorporated\.
Robert

as same paragraph and same sentence, change to read as II

Rosselli in the early...
stages

; Page 26, Line 20, delete " " after

; Page 30, Line 10 and 13, change " Wellington " to

Me 11 i ngton

; Page 30, Line 22, change II Troutner "
21, change " i n

to " Trautner

Page 35, Li ne
to ' read as "

il to " and" ; Page 52, Li ne
It would be...

6, change

that part of it.

\J~
b -zO--OZ
Esquire Deposition Services

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Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 13 of 25

EXHIBIT

Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 14 of 25

Plaintiffs ' July 7, 2004 Possible Rebuttal Deposition Designations
Yankee Atomic Electric Company v. United States, 98- 126; Connecticut Yankee Atomic Power Company v. United States, 98- 474; Maine Yankee Atomic Power Company v. United States, 98- 154.
B.

Alan Brownstein (Organized by Date of Deposition)
1) April 9 ,

2002

Tr, 54: 1 - 55: 20; Tr. 64:5- 16; Tr. 146:23 - 148:9; Tr. 150:7 - 151:17
2) April 10 , 2002
Tr. 376: 22 - 378: 5

3) May 23 2002

Tr. 152: 6 - 155: 25; Tr. 165: 7 - Tr. 167: 3; Tr. 214:17 - 220:17; Tr. 233:14) June 14

2002

Tr. 423:20 - 428:5
C.

Nancy Slater- Thompson (Organized by Date of Deposition)
1) April 22 ,

1999

Tr. 244:5- 15; Tr. 273: 11 - 274: 5
2) June 13 , 2002

Tr. 94:16 - 96:16; Tr. 97:6 - 99: 6; Tr. 109:3 - 110:13; Tr. 159:7 - 160:2; Tr. 161:2(Organized by Date of Deposition)

D.

Ronald Milner

1) May 3 , 2002

Tr. 574:5 - 575:19
2) May 7 , 2002

Tr. 28:11- Tr. 32:11

Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 15 of 25

3) May 8 , 2002
Tr. 155:4- 156:1

Case 1:98-cv-00126-JFM

Document 840-12

Filed 07/07/2004

Page 16 of 25

EXHIBIT

.. .../
Case 1:98-cv-00126-JFM Alan Brownstein Document 840-12 Filed 07/07/2004
McLean, VA

Page 17 of 259, 2002 April

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) (98- 484C)

(Wilson, J.

NORTHERN STATES POWER COMPANY
(Wiese,

DUKE POWER, A Division of
DUKE ENERGY CORP.
5"'

(98- 485C)

(Sypolt,

CJII8d' Copy

INDIANA MICHIGAN POWER COMPANY

(98- 486C) (98- 488C)
et ale

(Hodges, J.

SACRAMENTO MUNICIPAL UTILITY DISTRICT
(Yock, S.

SOUTHERN NUCLEAR OPERATING COMPANY,

(98- 488C) (98- 621C)

(Yock, S.

COMMONWEALTH EDISON COMPANY
(Hewitt, J.

BOSTON EDISON COMPANY

(99- 447C) (Allegra, J.
..~, 4

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 840-12 Filed 07/07/2004 Page 18 of 25
McLean, VA

April 9, 2002

Page 2

(00- 440C)

(Bush, J.

WISCONSIN ELECTRIC POWER COMPANY

(00- 697C) (Merow, S. J . )
POWER AUTHORITY OF THE STATE OF NEW YORK

(00- 703C)
(01- 115C) (01- 116C) (01- 249C)

(Damich, J.

OMAHA PUBLIC POWER DISTRICT
(Bush, J.

NEBRASKA PUBLIC POWER DISTRICT
(Sypolt, J.

TENNESSEE VALLEY AUTHORITY
(Bruggink, J.

Plaintiffs,
Discovery
THE UNITED STATES,

: Judge:

Defendant.
McLean, Virginia

: (Judge

-xSypolt)
Tuesday, April 9, 2002

Deposition of ALAN BROWNSTEIN, a

wi tness, 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

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 840-12

Filed 07/07/2004

Page 19 of April 9 , 2002 25

McLean , VA

Page 54

What were the responsibilities of the department with respect to the disposal of spent

nuclear fuel?
We were responsible
MR. BANES:

Obj ection

-- I' m

sorry.

Obj ection

.

Calls for a legal conclusion.

Go ahead.
THE WITNESS:

Okay.

UI timately we

were responsible for accepting that fuel for
permanent disposal. BY MR. TOMASZCZUK:

Was there a date by which the
department was to undertake that effort?

MR. BANES: Objection. Calls for a
legal conclusion.

Go ahead.
THE WITNESS:
I be

I ieve and the

department believed that we had to begin
accepting that fuel upon commencement of the
facility operations.

BY MR. TOMASZCZUK:

Not by a particular date?

There was a date, but that date was

condi tional.
We believed that the January

31st,

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 840-12

Filed 07/07/2004

Page 20 of 25

McLean, VA

April 9 , 2002

Page 55

1998 date was clear as we responded to written

questions from the Hill and others, that that
date was conditional based on the commencement
of facility operations.

Q.

Did the department have the

responsibility to take title to the spent
nuclear fuel or high- level waste involved as

expeditiously as practicable?
MR. BANES:

Objection.

Calls for a

legal conclusion.
THE WITNESS:

Yes, but, and the but is

based upon commencement of facility
BY MR. TOMASZCZUK:

operations.

Is it your understanding, Mr.

Brownstein, that if the facility never opens,

then DOE never has an obligation under the

contract?
MR. BANES:

Objection.
Yes.

Calls for a

legal conclusion, and vague.
THE WITNESS:

BY MR. TOMASZCZUK:

Did you have any understanding at or

about the time you became a DOE employee with respect to the spent nuclear fuel acceptance
rate that DOE was using with respect to the

Alderson Reporting Company, Inc.

111114th Street , N. W. Suite 400 1- 8oo- FOR- DEPO Washington , DC 20005

--'
Case 1:98-cv-00126-JFM Alan Brownstein Document 840-12 Filed 07/07/2004
McLean, VA

Page 21 of April 9 , 2002 25

Page 64

understand my question?
I don'

MR. BANES:

Same obj ection .

BY MR. TOMASZCZK:

Well, is it true that DOE under the
contract is committed to accept waste from the
signatories of standard disposal contracts on a firm schedule that begins no later than January
31, 1998?

MR. BANES:

Objection.

Calls for a

legal conclusion.

Go ahead.

14 believe that this is a, a goal.
I don
16

15 17

THE WITNESS:

I don' t believe that.

t believe that it accurately J
for.

\ represents what

the contract calls

BY MR. TOMASZCZUK:

Did you ever discuss that view with

anyone?
sure that I must have, but I don'
recall specifically who or circumstances.

You would at least agree the first
sentence doesn' t talk about
goals, does

it?

MR. BANES:

Objection -- vague,

argumentative.
Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 8oo- FOR- DEPO Washington , DC 20005

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

Document 840-12

Filed 07/07/2004

Page 22 of 25

McLean, VA

April 9, 2002

Page 146

Yes.
And the sentence which I quoted has
the phrase contractually binding Delivery
Commi tment Schedules.

What provision of the contract
indicates that DCSs, Delivery Commitment
Schedules, are contractually binding?
MR. BANES:

Obj ection

.

Calls for a

legal conclusion.
THE WITNESS:
I have to go

back and

refresh my memory and read

it.
to Article V. B. of

BY MR. TOMASZCZUK:

Sure. But I I m referring

the contract which addresses Delivery Commitment

Schedules.
Okay.
Take your time and have a look

at it.
(The witness reviewed the document.
THE WITNESS:

Okay.

I have reviewed

it.
BY MR. TOMASZCZUK.

Okay.

And what language in that

section of the contract supports the view that

you expressed in this letter that the DCSs were

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 840-12 Filed 07/07/2004 Page 23 of April 9, 2002 25
McLean, VA

contractually binding?
agree with what I wrote at that

A. Well, in retrospect, I, I don' t really
time.
I think I was trying to juxtapose the

idea that we can meet either as a goal or as a

contractual commitment accepting a single
assembly versus a process which is more than
that as referred to in the contract.
I think, today I think that was

unfortunate, personally think it was an

unfortunate choice of words by using the word
contractually binding, but referred to in the

contract as Delivery Commitment

Schedule.

So sitting here today, you can'

identify a provision of the contract that says
the DCSs are binding, right?

In reading Article VI. B,
that word.

I didn' t see

Indeed do you have the understanding
that the DCSs are not binding?
MR. BANES:

Obj ection

.

Calls for a

legal conclusion.

THE WITNESS: I go back to my previous

testimony which guided,

you know, my thinking

25
I the entire ten-

year period that I was working

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 8oo- FOR- DEPO Washington , DC 20005

--...

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

Document 840-12

Filed 07/07/2004

Page 24 of 25

McLean, VA

April 9, 2002

Page 148

wi th the contract, which was we had many

goals.

We had many obj ecti

ves, but in

terms of

contractual commitments, the, the, contractually
we had a responsibility to begin waste
acceptance following commencement of facility

operations.
That I s what I believed then.
what guided me.

That I

That I s what I believe

you have asked me, I have

stated.
Thank you, but I 1

BY MR. TOMASZCZUK:
I understood that.

not sure that was responsive to my question.

Okay.
My question was sitting here

today,

isn I t it true that the DCSs are not binding?

MR. BANES: Objection. Calls for a
legal conclusion.
THE WITNESS:

I do believe that I

that is a legal matter. I mean I I m not a lawyer.
BY MR. TOMASZCZUK:

Well, with all due
think that answer

respect, sir , I
years,

I s also not responsive.

What is your understanding, having

worked on the program for more than ten

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 840-12

Filed 07/07/2004

Page 25 of 25
April 9, 2002

McLean, VA

Page 150

was a change made in the concurrence process by
an attorney or a policy change.

Fifteen years ago,
word, one word. BY MR. TOMASZCZUK:

I

just, I' m

having

a difficult time explaining what I meant by that

Okay.

And my question was sitting

here today, is it your understanding that the
DCSs are binding or not?
MR. BANES:

Obj ection -- asked and

answered.
MR. TOMASZCZUK:

Well, I'

ve asked

it.

m not sure he has
MR. BANES:

answered.
I think he has answered

it.

I think what he said is he can' t divorce it

from the commencement of facility operations, so

if there is no facility in operation, then it

wouldn' t be binding.
I think that'

THE WITNESS:

s what he said. That' s exactly right.

We can go down two paths here, you know.

there was a

facility, if

BY MR. TOMASZCZUK:

Go ahead.
If there was a facility, and if th

Alderson Reporting Company, Inc. 111114th Street, N. W. Suite 400 1- 8oo-FOR- DEPO Washington , DC 20005