Case 1:98-cv-00126-JFM
Document 833-7
Filed 06/28/2004
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22 , 2002
138
you re referring to at the time.
Well, various points in time your office
issued ACRs, correct?
I believe
so.
I didn t follow , quote, the
ACR, DCSs and those sort of
things.
I didn t follow
those very closely.
They should have been
So you didn t follow them very
consistent. closely,
correct?
No.
That'
s correct.
When you were acting director and deputy
director of your office, did you not have ultimate
responsibili ty for those documents?
I did.
And did you delegate that responsibility to
someone else?
You can delegate authority; you retain
responsibility.
And although you retained your
responsibili ty for them, you
yourself with them?
MR. CRAWFORD:
did not familiarize
Obj ection, argumentative.
, I think I was familiar with
them, but I
( 703 )
( 301 )
7 62 - 8 2 8 2 (
202 )
D. REPORTING COMPANY , INC. ( 800 ) 292 - 4 789 861- 3 41
288- 0 026
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY , APRIL 22, 2002
148
debate in the formulation of the
' 82 act
was there was
discussions between what was known at the time as
away-from- reactor storage concept versus a geologic
reposi tory concept, and the after the debate was over
the decision was not to authorize an away-from- reactor storage facility, which the new name became a
moni tored retrievable storage facility, because the
opponents of that felt it would detract from the geologic repository and the DOE was to submit a
proposal for an MRS, but it was not
approved.
It took
an act of Congress to approve it and authorize
it.
That was the forces that were at play from a policy
perspecti ve on this.
In 1982?
In 1982.
And those existed right through
87.
Some people vehemently opposed the MRS; some
people wished -- were proponents of the MRS.
So then am I correct that in 1985 it was
important to your office that the MRS as then proposed
not be perceived as a replacement for the permanent
reposi tory?
That' ' correct.
(301) 762-
8282 (202)
D. REPORTING COMPANY, INC.
861-
3410 (800)
292-
4789 (703)
288- 0026
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DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON MONDAY, APRIL 22 , 2002
149
MR. CRAWFORD:
Obj ection.
Lack of
foundation.
You see B, the waste receipt rate?
Uh- huh.
Are you familiar with the basis for the
3, 000 MTU per year receipt rate in 1985?
MR. CRAWFORD:
Objection, asked and
answered.
Obj ection, foundation.
m f ami 1
i a r
wit h
it.
It was established
before my arrival or personal participation in
establishing that number.
It seemed like a reasonable
number to me then as it does
today.
MTU per
Has there ever been a time Slnce you
been at the Department of Energy that a 3, 000
year rate did not seem reasonable?
MR. CRAWFORD:
Obj ection, vague. Obj ection, lack of
Objection, asked and
answered.
foundation.
As this lS used In this case, as an
assumption for an operating facility rate and
21 l capaci ty, it was a reasonable number.
In C, do I understand this correctly that
(301) 762-
8282 (202) 861-3410 (800) 292-4789 (703)
D. REPORTING COMPANY, INC.
288- 0026
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
159
foundation.
The failure of 19 -- as we were delayed
there
s more storage costs that are going to have to
be paid for in
society.
So in proposlng this plan, this improved
plan your office was attempting to reduce those
costs,
correct?
MR. CRAWFORD:
Obj ection
to the extent it
calls for speculation and obj ection to the foundation
and obj ection, vague.
Yes.
Let me
add, it'
s much more than just
cost.
It' s also the intent.
The government should be
trying to take the material and discharge
responsibili ties
its
under the act.
So it' s more than
just cost.
16 ~
And is it your understanding that the
standard contract was entered into between the
government and the utilities with nuclear reactors in
order to carry out the underlying intent of the
Nuclear Waste Policy Act?
MR. CRAWFORD:
Obj ection.
Mischaracterizes
answered.
288- 0026
prior testimony.
Obj ection, asked and
(301) 762-8282 (202)
D. REPORTING COMPANY, INC.
861-
3410 ~800)
292-
4789 (703)
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
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Objection ,
foundation.
Obj ection to the extent it
calls for speculation.
To me the contract was administri via
aspects of the program.
for
What?
Administri via.
Can you explain that novel term to me?
Paperwork.
attention to the
Legal stuff. contract. We were
I didn t pay much
-- our sights were
set on trying to perform, to take the waste into the
government system as quickly as
possible.
Consistent wi th
the intent of the act?
Act.
subpiece of the
is tertiary.
Not -- the contract is a small
act.
The act is primary; the contract
Your sights were focused on the
requirement s of the Nuclear Waste Policy Act of
1982,
correct?
Correct.
Continuing on page 28, subparagraph one
towards the bottom of the page, would you take a
moment to look at
that, sir.
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(301) 762-
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Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON MONDAY, APRIL 22 , 2002
196
Positions by decision group, current
status?
Yes.
You see under Decisions Group it has
aggregate acceptance, the first entry, system study on
technical basis under review confirms 3, 000 MTU per
year?
I see it.
That'
s consistent with your testimony
today, correct, that -MR. CRAWFORD:
MR. CAYNE:
Obj ection.
Could I finish, counsel.
MR. CRAWFORD:
Sorry.
That'
s consistent with your testimony today
that in 1986 your office was projecting a 3, 000 MTU
per year acceptance rate, correct?
MR. CRAWFORD:
Obj ection , vague.
Seems consistent.
Do you know what the, or are you familiar
wi th the system study that is being referred to in
this entry?
Not the specific
one.
Do you have a general understanding of the
(301) 762-
8282 (202)
D. REPORTING COMPANY, INC.
861-
3410 (800)
292-
4789 (703)
288- 0026
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
197
system study being referred to here?
MR. CRAWFORD:
Obj ection.
As ked
and
answered.
There were varlOUS studies done in the
eighties and also in the very early nineties on system
performance rate, you know, what the costs
were,
schedules were,
issues, correct?
plausibility of
them.
And these system studies looked at system
Yes.
And am I correct that each one of these
studies to which you ve just referred confirmed an
acceptance rate, an aggregate acceptance rate of 3, 000
MTU per year?
MR. CRAWFORD:
Well, obj ection,
vague.
I think it'
s overstated to say it confirmed
it.
It showed that, you know , at 2, 000 it ~oes
this,
at 3, 000 it does that, 4, 000 it does something
different. I don t know if they actually reached an absolute confirmation that 3, 000 was the exact number, but generally they supported the system rate of 3, 000 was a reasonable rate.
(301) 762-
8282 (202)
D. REPORTING COMPANY , INC.
861-
3410 (800)
292-
4789 (703)
288- 0026
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY , APRIL 22 , 2002
198
So it' s your understanding or your
knowledge that each of the various system studies to
which you just referred that were undertaken in the -from the mid- 1980s to I think you said the mid- 1990s,
supported an acceptance rate of 3, 000 MTU per
year,
correct?
MR. CRAWFORD:
Obj ection, vague.
Obj ection, assumes facts not in
mischaracterizes prior
evidence.
Obj ection,
testimony.
Yes.
ll ask you to turn to page HQ 0002909 of
this same exhibi
Okay.
Do you see under the second
entry,
allocation of acceptance under consequences of
decisions, it says
allocation required to plan
Do you see that
maximum ~~orage at some sites.
statement?
I see it.
Do you understand that statement?
No.
Do you understand that statement to refer
(301) 762-
8282 (202)
L. A. D. REPORTING COMPANY ,
861-
3410 (800)
292-
4789 (703)
INC.
288- 0026
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
209
but certainly site designation was a key
Look at page two of this
Arabic at the bottom.
matter. document, two in
Okay.
You see the
statement, " As
specified in the
contracts, the ACR is for planning purposes only
MR. CRAWFORD:
MR. CAYNE:
Where are you?
m at the last sentence of the
carryover paragraph -- next to the last sentence of
the carryover paragraph on the top of page
two.
read
You
it.
see that?
your knowledge does the contract
Yes.
actually make that statement, the standard contract?
Don t know.
Have you ever been advised by anyone of the
statement on this page two that the ACR is for planning purposes only?
ve heard that
statement.
Have you ever made that statement?
Don t recall.
Might have.
(301) 762-
8282 (202)
D. REPORTING COMPANY , INC.
861-
3410 (800)
292-
4789 (703)
288- 0026
Case 1:98-cv-00126-JFM Document 833-7 Filed 06/28/2004 Page 10 of 23 OF LAKE H. BARRETT, VOLUME DEPOS ITION CONDUCTED ON MONDAY , APRIL 22, 2002
210
Is that your position?
Yes.
MR. CRAWFORD:
Obj ection, foundation.
Yes.
And what is the basis for that position?
MR. CRAWFORD:
Obj ection to the extent it
calls for a legal
conclusion.
asked.
My staff has advised me that' s the proper
thing to say when
What members of your staff?
people who
Mr. Brownstein, Mr. Zabransky and the are responsible in that area.
When did they give you that advice?
Numerous times over many
Starting when?
years.
93 on I would
Probably when I came back
guess.
Did they glve you that advice in the
context
of discussions relating to the issue of
whether operations would start at the repository by
January 31st, 1998?
MR . CRAWFORD:
Obj ection, vague.
(301) 762-
8282 (202) 861-3410 (800) 292-4789 (703)
L. A. D. REPORTING COMPANY, INC.
288- 0026
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
217
Did you ever read part of a DCS?
Might have.
Don t know.
What is a DCS?
Well -MR. CRAWFORD:
Obj ection.
As ked
and
answered.
I understand the
title.
Deli very commitment schedule.
Do you understand what role it played in
the overall SNF process?
MR. CRAWFORD:
Obj ection , foundation.
These were all part of the administrative
details of the contract that I did not pay much management policy attention
to.
So in your view was a DCS what you referred
to, Mr. Barrett, I think the term was administrivia?
That'
s correct.
A deli very commitment
schedule was
administri via?
Uh- huh.
Didn t really matter much to you, correct?
That'
s correct, relative to running the
(301) 762-
8282 (202)
D. REPORTING COMPANY, INC.
861-
3410 (800)
292-
4789 (703)
288-0026
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME CONDUCTED ON MONDAY, APRIL 22, 2002
218
program and getting the
site.
So you really did not have a particular
understanding of what role or what function the
overall administrative process that a DCS played; it
was just another kind of bureaucratic piece of paper
correct?
MR. CRAWFORD:
Obj ection, vague.
Obj ection, mischaracterizes the witness
s prior
tes timony .
And obj ection to the foundation.
Correct?
Yes.
My statement is correct?
Correct.
Would you turn to page seven of Exhibit
Are you there, sir?
Yes.
You see the section captioned Proj ected
Waste Acceptance Capacity?
Tha t ' s the caption of the
section?
Yes. Yes.
And about seven lines down there s a
sentence that begins, " The schedule will serve as a
D. REPORTING COMPANY, INC.
861-
(301) 762-8282 (202)
3410 (800) 292-4789 (703)
288- 0026
Case 1:98-cv-00126-JFM
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Page 13 of 23
DEPOSITION OF LAKE
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260
the Department of
Energy, correct?
Obj ection to the
MR. CRAWFORD:
foundation.
That'
s my understanding.
How in your knowledge or in your view could
the amendments act of ' 87 have affected the
purchasers?
MR. CRAWFORD:
Obj ection to the
foundation.
Objection ,
calls for speculation.
By making it more difficult for the
department to achieve a 1998 date.
And how would that have affected the
purchasers.
If we could not select a place by law we
couldn
t move the fuel, therefore the fuel would
remain there longer.
And that would have what impact on the
purchasers?
MR. CRAWFORD:
Obj ection as to
speculation.
Obj ection to the
foundation.
Primarily one
cost, that
they would have
store the fuel. Additional cost?
D.
(301) 762-8282 (202)
REPORTING COMPANY , INC.
861-
3410 (800) 292-4789 (703)
288-0026
.....
Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT , VOLUME CONDUCTED ON MONDAY, APRIL 22 , 2002
261
Addi tional cost.
Costs in addition to those that would have
been incurred had the repository been up and running
by January 31st,
1998, correct?
Obj ection to foundation.
MR. CRAWFORD:
Obj ection to the extent it calls for
The system running by
reposi tory and MRS.
speculation. 1998, being the
So you re referring to costs, additional
costs that would have been sustained by the
utili ties -- you re referring to additional costs that
would have been sustained by the utili ties that would
not have been incurred had the waste management system
been up and running by January 31st, 1998 , correct?
Correct. Please turn to page seven. paragraph. Actually, would you take
Okay.
First full
moment,
please,
to read that, the two paragraphs on page
seven.
Did your office attempt to quantify the
proj ected increase in the purchasers ' need for at- reactor storage as a result of the delay in
D.
the
(301) 762-8282 (202) 861-3410 (800) 292-4789 (703)
REPORTING COMPANY, INC.
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IV., vr 1.1\"-1:. 833-7 Document n. UAKKt 1 1 , VULUM1:. I Filed 06/28/2004 CONDUCTED ON MONDAY , APRIL 22 , 2002
Page 15 of 23
68 (Pages 269 to 272)
269
271
ACKNOWLEDGMENT OF DEPONENT \, Lake H. Barrett , dQ hereby acknowledge that I have read and examined the foregoing testimony, and the same is a true , correct and complete transcription Qfthe testimony given by me and any corrections
appear on the attached Errata s
ERRATA SHEET
IN RE: YANKEE A TOMICv. UNITED STATES
RETIJRN BY:
4 PAGE LINE CORRECTION AND
REASON
t signed by me.
t::/17/ (It(DATE)
(DATE)
(SIGNATURE)
210
CERTIFICATE OF SHORTHAND REPORTER. NOTARY PUBLIC
, Diane Gomez. Registered Professional , Reporter.
272
ERRATA SH EET CONTIN UED
IN RE: YANKEE ATOMIC v . UNITED STATES
the officer before whom the foregoing proceedings were
4 taken , do hereby certify that the foregoing 'r~nscrip'
3 RETURN
BY:
4 PAGE LINE CORRECTION AND
5 , is II. 'rue and correct record of the proceedings; that
said proceedings were taken ,by me stenographically and
REASON
7 ' tbereafto;r rtduced to t)-pe,writing under my
supervision; and that I am neither counsel for;
9, related to, nor employed by any oflhe parties to this,
8 -
II ilsoutcome.
14 , 2002.
10 case and have no inlerest , financial or otherwise. in
12 IN WITNESS WHEREOF, I have hereunto set my hand
J3 and affixed my nolarial seal this 25th day of April
15 My commission exp ires:
, June 14
2005
20 NOTARY PUBLIC IN AND FOR
21 THE DISTRICT OF COLUMBIA
(DATE)
(SIGNATURE)
LAD. REPORTING COMPANY , INc. (301) 762- 8282 (202) 861-3410 ' (800) 292-4789 (703) 288- 0026
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Case 1:98-cv-00126-JFM Document 833-7 BARRETT, VOLUME 1 DEPOSITION OF LAKE H. Filed 06/28/2004 Page 16 of 23 CONDUCTED ON MONDAY, APRIL 22, 2002
271
IN RE:
YANKEE ATOMIC v. UNITED STATES
MAY
RETURN BY:
PAGE
27. 2002
LINE
I L-
CORRECTION AND REASON
t2 '7 ~
ilL
fi t/'-t:-
!d
/2(:
/e1N"-
(DATE)
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Case 1:98-cv-00126-JFM
Document 833-7
Filed 06/28/2004
Page 17 of 23
273
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
YANKEE ATOMIC ELECTRIC COMPANY;
CONNECTICUT YANKEE ATOMIC POWER
COMPANY; MAINE YANKEE ATOMIC
POWER COMPANY;
Case Nos. 98-126C,
98-154C, 98-474C, 98-483C, 98-484C,
FLORIDA POWER
98- 485C, 98- 48 6C,
98-488C, 98-614C,
LIGHT COMPANY; NORTHERN STATES
POWER COMPANY; DUKE POWER , a
Di vision of DUKE ENERGY CORP.
98- 621C, 99- 447C,
00-440C, 00-695C,
INDIANA MICHIGAN POWER COMPANY;
00-703C, 01-115C,
SACRAMENTO MUNICIPAL UTILITY
01- 116C, 01- 249C
(Caption continued on next
page)
Continued Deposition of LAKE H. BARRETT
Washington, D.
C.
Tuesday, April 23, 2002
9:36 a.
Job No. : 11792 -
Pages 273 through 526, Volume 2
Reported by:
Diane Gomez , RPR
D.
REPORTING COMPANY, INC.
1150, Washington ,
o.
1100 Connecticut Avenue, NW . Suite
c. 20036 . 202. 861. 3410
. E-mail:lisa~ladreporting. com
Fax: 202. 861.3425
. 800. 292. 4789 . Website: ladreporting. com
NATIONWIOf COURT REPORTERS AND VIOEOGRAPHERS
Case 1:98-cv-00126-JFM
Document 833-7
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DEPOSITION OF LAKE H. BARRETT, VOLUME 2 CONDUCTED ON TUESDAY , APRIL 23, 2002
274
DISTRICT; SOUTHERN NUCLEAR
OPERATING COMPANY, et al.
COMMONWEALTH EDISON COMPANY;
BOSTON EDISON COMPANY; GPU
NUCLEAR, INCORPORATED; WISCONSIN
ELECTRIC POWER COMPANY; POWER
AUTHORITY OF THE STATE OF NEW
YORK; OMAHA PUBLIC POWER DISTRICT;:
NEBRASKA PUBLIC POWER DISTRICT;
and TENNESSEE VALLEY AUTHORITY,
Plaintiffs
THE UNITED STATES,
Defendant
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Case 1:98-cv-00126-JFM
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DEPOSITION OF LAKE H. BARRETT, VOLUME 2 CONDUCTED ON TUESDAY, APRIL 23 , 2002
348
Is it your testimony then that it would
have been less costly for the Department of Energy to
operate a repository for a period of 80, 90 or more
years than it would have been for the department to
operate a reposi tory
in the ballpark of 30 years?
MR. CRAWFORD:
Obj ection to the foundation.
Objection ,
vague.
No.
In fact, it would have been much more
expensi ve to the department to operate the repository
for a period of 80, 90 or more years as contrasted
wi th operations in the ballpark of 30 years, correct?
Yes.
Are you aware of any TSLCC or fee adequacy
study undertaken at any time that assumed a repository
design receipt rate of 900 MTUs per year on a steady
state basis?
No.
Are you aware of any TSLCC
fee adequacy
study that assumed
No.
900 MTU per
year acceptance rate
steady state basis?
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Case 1:98-cv-00126-JFM Document 833-7 Filed 06/28/2004 Page 20 of 23 DEPOS ITION OF LAKE H. BARRETT , VOLUME 2 CONDUCTED ON TUESDAY, APRIL 23, 2002
349
In fact, Mr. Barrett, to your knowledge
have not all of the TSLCC and fee adequacy studies
assumed 3, 000 MTU per year acceptance rates or
reposi tory design receipt
MR. CRAWFORD:
rates?
Obj ection to the foundation.
To your
knowledge, sir.
Repeat the question
again.
Barrett, have all
To your
knowledge, Mr.
TSLCC or fee adequacy studies issued on or after 1982
assumed a 3, 000 per annum MTU acceptance rate or a
reposi tory design receipt
MR. CRAWFORD:
Some had more.
rate?
Obj ection to the foundation.
Some had more?
Which ones had more?
Ones that had two repositories in it had
rates higher than 3, 000.
What was the highest annual aggregate rate
of any of the TSLCC or fee adequacy studies that
you re referring to?
MR. CRAWFORD:
Obj ection.
Best evidence.
Some of the earlier
ones, pre- ' 87 ,
.60'
had two
repositories at steady state which would run higher at
"x" ,.w~,"
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Case 1:98-cv-00126-JFM
Document 833-7
Filed 06/28/2004
Page 21 of 23
DEPOSITION OF LAKE H. BARRETT, VOLUME 2 CONDUCTED ON TUESDAY, APRIL 23, 2002
350 i
nominal 6, 000 tons.
Per year?
Per year.
All recent ones, since
' 87 or
000.
to my knowledge are basically
steady
state at
And by recent ones
In the
sorry.
year.
1990s the TSLCCs had a state steady
receipt rate at 3, 000 tons per
And what about the most recent study?
I believe the most recent ones -MR. CRAWFORD:
Obj ection, best evidence.
-- is 3, 000 tons per year steady
state.
(Deposi tion
Exhibi t Barrett 15 was marked
for identification and was retained by counsel.
Mr. Barrett, the court reporter has handed
you a document marked for identification as Exhibit
15, which is a mul tipage document, the first page of
which is a routing and transmittal slip directed to
Barret t ,
J. Hale, S. Brocoum , B- r-
m, A.
Brownstein, B-
s-t-
n, W. Danker
r, MRS team and D. Shelor, Sattached to that is a multipage " memorandum that the
subj ect line reads
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Case 1:98-cv-00126-JFM
Document 833-7
Filed 06/28/2004
Page 22 of 23
DEPOSITION OF LAKE H. BARRETT, VOLUME 2 CONDUCTED ON TUESDAY, APRIL 23 , 2002
414
reposi tory,
you understand that?
' 87 legislation authorize the
Yes.
But did the
construction and operation of an MRS facility that was
not compliant with each of the links established by
the 1987 amendments to the Nuclear Waste Policy Act of
1982?
MR. CRAWFORD:
Obj ection, best evidence.
I th~nk the way you phrased that the answer
is no.
Did you not understand the question?
Your phraseology had a double negative in
it, so I think the answer was
no.
Let me try to ask the question again
because we want the record
clear.
Did the 1987
legislation authorize the construction and operation
of an MRS facility that was not compliant with each of
the links established by the 1987 amendment to the
NWPA?
No.
MR. CRAWFORD:
Obj ection.
Best evidence.
So you agree with me that such an MRS was
U. KEPORTING COMPANY , INC.
861-
(301) 762-
8282 (202)
3410 (800) 292-4789 (703)
288- 0026
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Filed 06/28/2004
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Case 1:98-cv-00126-JFM
Document 833-7
Page 23 of 23
DEPOSITION OF LAKE H. BARRETT, VOLUME 2 CONDUCTED ON TUESDAY, APRIL 23, 2002
415
not lawful in
1989, correct?
Obj ection.
As ked
MR. CRAWFORD:
and
answered.
The answer is
And in fact -I do.
yes.
And, in fact, such an MRS never became
lawful under the laws of the United States, correct?
Yes.
Turn your attention to page four of Exhibit
16, please.
The second full paragraph , Mr. Barrett.
Are you there?
Yes.
MR. CRAWFORD:
MR. CAYNE:
What page?
Page four of the attachment to
Exhibit 16.
MR. CRAWFORD:
MR. CAYNE:
Which paragraph are we on?
The second full
paragraph.
The
It starts, in conclusion number four
commission found that an MRS link as provided in the
current law would not be justified, especially in
light of uncertainties in completion time for the
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(301) 762-
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D. REPORTING COMPANY, INC.
861-
3410 (800)
292-
4789 (703)
288- 0026