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Case 1:98-cv-00126-JFM
Susan Klein (vol
----111ft
Page 275
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
YANKEE ATOMIC ELECTRIC COMPANY
(98- 126C)
(Merow, S.
MAINE YANKEE ATOMIC POWER COMPANY (98- 474C) (Merow, S.
FLORIDA POWER
CONNECTICUT YANKEE ATOMIC POWER COMPANY ( 98 - 15 4C) (Merow,
S. J . )
J.
NORTHERN STATES POWER COMPANY
(98- 484C)(Wiese, J.
DUKE POWER, a Division of DUKE ENERGY CORP.
(98- 483C)(Wilson ,
& LIGHT COMPANY
INDIANA MICHIGAN POWER COMPANY
(98- 486C)(Hodges, J. (98- 488C) (98- 614C)
(Yock, S.
(98- 485C)(Sypolt, J.
SACRAMENTO MUNICIPAL UTILITY DISTRICT
SOUTHERN NUCLEAR OPERATING COMPANY, et
(Merow, S.
ale
COMMONWEALTH EDISON COMPANY
BOSTON EDISON COMPANY
GPU NUCLEAR, INCORPORATED
WISCONSIN ELECTRIC POWER COMPANY :
( 00 - 697 C) (Merow, S. J POWER AUTHORITY OF THE STATE OF NEW YORK (OO- 703C) (Damich, J.
(OO- 440C)(Bush,
( 9 8 - 6 2 1 C ) (H ew it t, J.
(99- 447C)
(Allegra, J.
J.
VOLUME
II
OMAHA PUBLIC POWER DISTRICT
NEBRASKA PUBLIC POWER DISTRICT Discovery
(01- 115C)(Bush, J.
(OI- 116C)
TENNESSEE VALLEY AUTHORITY : (Judge
(01- 249C)
(Bruggink, J.
(Sypolt, J.
:Judge:
: PAGES
Plaintiffs,
:Sypolt)
:275 - 533
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Case 1:98-cv-00126-JFM
Susan Klein (vol
Page 276
THE UNITED STATES,
Defendant.
Deposition of Susan Klein
Washington, DC
Thursday, April 25, 2002
Reported by:
JOB NO.
Denise Dobner Vickery, RMR, CRR
144540
800- 441-3376
Esquire Deposition Services
Case 1:98-cv-00126-JFM
Document 833-4
Susan Klein
Filed 06/28/2004
(vol 2)
Page 3 of 18
Page 283
(Thereupon, the reporter marked for
identification Deposition Exhibit
No. 26.
Thereupon,
SUSAN KLEIN
was called for
examination, and,
after having been
previously sworn or affirmed, was examined and
testified as
follows:
EXAMINATION BY COUNSEL FOR THE PLAINTIFF,
COMMONWEALTH EDISON
BY MR. HIRSCH:
Good morning,
Ms. Klein.
Good morning.
Do you understand you I re still under oath?
Yes.
All right.
16 ",MS. SULLIVAN:
Excuse me.
Mr. Hirsch,
before we start today, Ms. Klein would like to clarify
something that she testified about yesterday if she
might.
MR. HIRSCH:
Okay.
I went back to my office and
.-J
THE WITNESS:
checked the record and as to the rates that we would
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pick up for, they are the same as in the VA that you
showed me.
You probably want to know what exhibit
number that
is.
And that is in our current
requirements document that the 3, 000 continues
throughout the years as stated in the VA.
The
viability assessment.
BY MR. HIRSCH:
All right.
I think it I s
now -- that looks like it could
be it.
MS. SULLIVAN:
BY MR. HIRSCH:
22.
Volume 2 of the viability assessment.
MS. SULLIVAN:
THE WITNESS:
22.
Let'
s see.
It was a page
s correct.
you showed me.
BY MR. HIRSCH:
Page 3.
Yes, that'
Well, let I s hopefully
clarify that a little
bit.
Why don' t you look at Klein Deposition Exhibit
22, which is --
A new one?
No.
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No.
The one we were just looking
at.
The volume
2 of the DOE viability assessment from December of ' 98.
Okay.
Uh huh.
And in particular, I think we were looking
yesterday at the table on page 3-
Yes.
And --
Those are approximately.
I think there was a
1900 not an 1800 in our requirements
document.
Okay.
But they re based on -- they re based on these
receipt rates, annual repository receipt rates in Table
And this table shows a receipt rate of 3, 000
~tarting in 2014 and I guess running until 2032 on
his -Yes.
-- table?
That'
s correct.
And I' m sorry.
Your clarification after
checking with your office this morning with respect to
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Susan Klein
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the rate was what?
Was that the rate here in this Volume 2 of the
VA, Exhibit 22 , in Table 3- 1 is the correct rate for
our planning purposes.
What we plan, how we plan , the
rate at which we plan to accept spent fuel at the
reposi tory.
And that is a rate that would ramp up to 3, 000
by 2014 and continue on at 3, 000 until 2032; is that correct? Yes, that' s correct. 2033. Through 2032.
I think you mentioned in your previous answer a system requirements document put out by the DOE?
Yes.
MR. HIRSCH:
We' ve previously marked an
exhibi t which we ll get back
to.
Let'
s go ahead and
look at that.
27.
the reporter marked for
(Thereupon ,
identification Deposition Exhibit
THE WITNESS:
No. 27.
Yes.
BY MR. HIRSCH:
. Q.
Ms. Klein?
Yes.
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says.
All right.
discharge rate goes
is it not
But at least until the utility
down, it'
s the DOE' s expectation,
that they re going to continue to pick up
000 metric tons?
That is the expectation for planning
purposes,
yes.
Does the DOE consider a 3, 000 metric ton
acceptance rate to be a reasonable rate to run the
spent nuclear fuel program at?
I would --
All right.
past -- 26.
Will you look at Klein Deposition
Exhibit -- the one we just marked and then went on
Okay.
In particular ,
what I' d
like to refer you to
is page 6 of Exhibit
26.
Yes.
You have that
there.
This page 6 is what I
think is labeled as a Time- Phased Cost Summary in
Constant 1998
program.
Dollars for the DOE spent nuclear fuel
You see that?
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Page 340
Ms. Klein, my name is Alex Tomaszczuk.
counsel for various utility plaintiffs which have
pending cases at Court of Federal
Claims.
I have a few follow-up questions to ask you
based on the testimony that I' ve heard so far.
compliment Mr. Hirsch.
He was very thorough.
wouldn' t say this in his presence, but since he stepped
out, he was very thorough and I think I have only a
relatively few number of questions for you.
The same ground rules apply that Mr. Hirsch
expressed to you at the outset of your
deposition.
for some reason you don' t understand my question,
please let me know that I' ll try and rephrase it so
that there' s common ground and so that we understand
your testimony, okay?
Yes.
17
I would like you if you can to identify for me
all the assumptions on which your testify that DOE will
begin performance in 2010.
The
assumptions?
that we would have a
Yes.
The assumption
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Page 341
designation by Congress of the
site.
That we will
have a construction authorization from the Commission,
and that we will have a license to receive by -- to
receive nuclear material by 2010.
have to be accomplished.
All those things
IfI
is based.
understood your answer, there were three
basic assumptions on which DOE' s ability to meet 2010
The first was the designation of the
site;
is that correct?
Uh- huh.
Yes.
And the second assumption was the obtaining of
an authorization for construction?
Yes.
And the third was receiving a
license to
operate?
Yes.
Okay.
Those are the three major
assumptions.
Are there any other assumptions on which DOE'
ability to meet the 2010 date is based?
Well, we do need to get
funding.
We need to
-- there can be no injunctions against us by a
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Page 342
I mean, I could go on about, you
know, how the
work.
I think by
assumptions one has, how they got to
court, right.
What I'
Every
m asking you to do is identify them to
the best of your
ability.
I don'
one of them?
t think I' m
capable
of identifying every one of them.
There are big
differences between what we plan and hope to happen and
what we assume, but I mean we would like to have an
al ternative means of financing and managing the
program, but I don' t know that that' s a required
amended order for us to meet the
2010 date.
But that
would certainly ease our burden if we could get
government cooperation and have our funding mechanism
changed.
That is a high priority for the program in
I think those are the assumptions
Those are the
order to succeed.
that I can think of, I mean.
assumptions.
All right.
The two that you identified in
your -- in the continuation of your answer was first
funding and second no injunctions as I understood your
testimony?
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Page 351
is the Nuclear Waste Disposal Fund and the other is the
Defense Waste Disposal Fund.
Some of it is
appropriated for the purpose of disposing of defense
waste.
But we use all that money for the
program.
BY MR. TOMASZCZUK:
You testified in response to ~ome of the
questions posed by Mr. Hirsch that DOE expected for
planning purposes when it begins performance to ramp up
to 3, 000 MTU rate and stay at that steady state rate
for a number of
years.
do.
Do you recall that testimony?
Yes, I
And that' s reflected in various documents
that Mr. Hirsch showed you yesterday and today as well?
Yes.
And you used that term planning purposes in
your answer?
Yes.
That intention of DOE to ramp up to the 3, 000
MTU rate, is that being used by DOE for
than planning purposes?
purposes other
No, not that I know
of.
22 "-
Q.
Is that 3, 000 MTU rate the rate that DOE was
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Susan Klein (vol
Page 352
determine if the fees are sufficient?
MS. SULLIVAN:
Obj
ection
beyond the
scope.
Answer if you know.
THE WITNESS:
I don' t know.
d have to
look at the TSLCC to know.
BY MR. TOMASZCZUK:
Would you do so.
document to answer the
If you need to refer to a
question, that' s fine.
one.
TSLCC,
Number 16.
That'
them here.
s the most recent
I have a few of
And would you repeat the question?
MR. TOMASZCZUK:
Ms. Reporter ,
could you
read it back.
(Requested material was read.
THE WITNESS:
(Pause) .
I haven' t found
it.
m working on
it.
Take your time.
BY MR. TOMASZCZUK:
That'
s all right.
It appears from this document that those are
the rates that we assumed in determining the cost of
the program.
And did you have a page of the document that
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Susan Klein
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All right.
fee, correct?
So, DOE is using the 3, 000 MTU
rate for the purposes of determining adequacy of the
MS. SULLIVAN:
Obj ection , beyond the scope
and also the document speaks for
answer the question.
THE WITNESS:
BY MR. TOMAS Z C ZUK :
itself.
You can
Yes.
They re using that rate basically to design
the facility that they' re planning to build at Yucca
Mountain; is that right?
Yes.
They
re us ing it in any number of documents
that we' ve seen here over the last couple of
days,
correct?
Yes.
Wouldn' t it be fair to say, Ms. Klein , that
the lower rate that DOE is using, that is, the rate
that goes up to 900 MTU and stops there, is being used
for one purpose and that is for this litigation?
MS. SULLIVAN:
Objection ,
beyond the
scope.
You can answer as to your personal
opinion.
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Susan Klein (vol
Page 388
has no obligation , but I don' t know that we have ever
said that we have that obligation as a department
beyond the 10- year
BY MR. TOMASZCZUK:
period.
Well, I commend you for dancing on that high wire, but maybe you can just tell me what this answer
is communicating to me because, frankly, I don'
understand it.
MS. SULLIVAN:
BY MR. TOMASZCZUK:
What is DOE' s position with respect to
Objection.
its
obligation to accept spent nuclear fuel from purchasers
beyond the 10 years of allocations addressed in the
ACR?
Can you explain that to me what is DOE'
because I don' t understand it in this
MS. SULLIVAN:
posi tion
answer.
Objection, the document
speaks for
itself.
Obj ection to the extent it calls
Obj ection,
for a legal conclusion.
it'
s beyond the
scope.
You can answer the
question.
And I would note for the record that to
the extent the utility plaintiffs have questions about
these Interrogatories, a proper vehicle would be a
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Page 389
perhaps a motion with the court, but
is here to testify as to her personal
Ms. Klein
knowledge.
she can.
THE WITNESS:
I don' t know that the DOE
has at this time a position on
BY MR. TOMASZCZUK:
that.
Do you have a position?
I do.
Can you tell me what it
is?
Yes.
My own personal position?
Yes?
Yes, we have an
obligation.
Ms. Klein, I don' t have
MR. TOMAS ZC ZUK:
any further questions at this
time.
I am going to adjourn your deposition
because there are some pending issues with respect to
the government' s privilege log and documents contained
thereon.
There were also some instructions not to
answer both from questions posed by
Mr. Hirsch as well
as some questions posed by me, and we' re going to
reserve the right to look at that and potentially call
you back.
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----"
..Case 1:98-cv-00126-JFM Document 833-4
Susan Klein
Filed 06/28/2004
Page 16 of 18
(vol 2)
Page 435
contract?
I believe in this process
which we call the
ACR resolution process, utilities raised issues and the
department addressed
issues were.
them.
I don' t know what all the
That could have been one of
them, and in
that case we would have looked at it, but other than
that I don' t know.
Maybe we did look at it in that
context.
As a request from a utility company.
Si tting here today, do you recall DOE
considering changing the definition of high- level
waste?
No, I do not
recall.
Is the Federal government responsible for
14 disposing of greater than Class C waste?
Yes, it
16 ~
is.
Would you look at the definition of high- level
waste in the standard contract, Exhibit 3 8,
specifically I' d
Yes.
ask you to turn to page
589.
Number 12.
Uh- huh.
The term high- level
waste means?
You see there under B it states:
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Susan Klein (vol
Do you know if DOE has ever formulated a
position as to whether there' s a formal definition for
the term other highly radioactive material?
I don t believe we
have.
What does the phrase requires permanent
isolation mean?
MS. SULLIVAN:
Obj ection to the extent it
Objection, document
calls for legal conclusion.
speaks for
itself.
THE WITNESS:
That'
s a good question.
s pretty vague.
It'
s a very good question.
I think it'
I don' t know.
It would be for NRC to determine in our
rulemaking.
BY MR. MACDONALD:
Would disposal in a permanent repository
constitute -- strike
that.
Would disposal in a deep geologic repository
consti tute permanent isolation?
MS. SULLIVAN:
Obj ection, vague.
Objection to the extent it calls for legal
THE WITNESS:
conclusion.
Even if it would, it doesn'
say that NRC has determined that it requires
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But I
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Susan Klein (vol
Page 440
would say if you put it in a repository and we' re going
to leave -- one of our plans is to leave ours open for
300 years, I guess after 300 years hopefully it'
permanent isolation.
But the requirement is they have
to determine by rule that it requires permanent
isolation.
So that to me is different than saying if
That doesn' t mean that
you put it in the repository.
NRC has determined that it' s required.
But it is --
that' s all.
BY MR. MACDONALD:
m not sure that that exactly answered my
question.
Okay.
Would
Ask
again, please.
Would
strike that. disposal constitute deep geologic repository disposal
view?
Objection, vague.
consti tute permanent isolation, in your
MS. SULLIVAN:
THE WITNESS:
I guess so, yeah.
I would
hope it would be isolated and it wouldn' t
MR. MACDONALD:
leak out.
d like to mark as
Exhibit 40.
(Thereupon, the reporter marked for
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