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

#"'

- - - - - - - - - - - - - -

-- - - -- - - --- - - -- - - - --- - - - - - -Document 833-4 Filed 06/28/2004 Page 1 of 18

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

Esquire Deposition Services

800-441-3376

- - - --

---- --- -- - - - - - - - - -- - - --- --- --- - - - -- - -Document 833-4 Filed 06/28/2004 Page 2 of 18

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
Esquire Deposition Services

800- 441~

33

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 4 of 18

Susan Klein (vol
Page 284
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.
Esquire Deposition, Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 5 of 18

Susan Klein (vol
Page 285
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
Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4
Susan Klein

Filed 06/28/2004

Page 6 of 18

(vol 2)

Page 286
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.

Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 7 of 18

Susan Klein (vol
Page 291

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?

Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 8 of 18

Susan Klein (vol
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
Esquire Deposition Services

800- 441-3376

Case 1:98-cv-00126-JFM

Document 833-4
Susan Klein

Filed 06/28/2004
(vol 2)

Page 9 of 18

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
Esquire Deposition Services

court.

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 10 of 18

Susan Klein (vol
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?
Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 11 of 18

Susan Klein (vol
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

Esquire Deposition Services 1-800-441-3376

".;

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 12 of 18

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
Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4
Susan Klein

Filed 06/28/2004

Page 13 of 18

(vol 2)

Page 354

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.
800- 441-3376

Esquire Deposition Services

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 14 of 18

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
Esquire Deposition Services

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 15 of 18

Susan Klein (vol
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.
Esquire Deposition Services

800- 441-3376

----"

..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:
Esquire Deposition Services

II

Other
800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 17 of 18

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
Esquire Deposition Services

it.

But I

800-441-3376

Case 1:98-cv-00126-JFM

Document 833-4

Filed 06/28/2004

Page 18 of 18

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
Esquire Deposition Services

800- 441-3376