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

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Case 1:98-cv-00126-JFM

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Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO THE PROTECTIVE ORDER May 14 2002

Washington , D.
Page 90

with the MRS concept at the
just don

time.

You know

I t know.

,I

So your testimony is DOE did not have
the capability during the IS- year period between

1983 and 1998 of developing whatever special

handling procedures for failed fuel may have been
necessary to commence operations and acceptance of

failed fuel commencing in January 1998; is that

what you I re telling me?
MS. HERRMANN:

Obj ection.
what the plans

Tha t ' s a

mischaracterization of his prior
I don

testimony.
were.

I t know

don' t know what the intentions were because that
wasn I t

the - -

failed fuel was not standard fuel

and I don't know what the plans

17 just asking about - - plans are included in my
question.
Plans could have been developed to

16

Q. Okay. I' m not asking about plans.

were.

address the problem , study the problem, or if it

was a problem study the issue of failed fuel and

how to accept

it.

And whatever special handling

procedures may have been or may be necessary in
order to accept spent fuel , the DOE had the

capability, the technical expertise of developing those special handling procedures and implementing

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Case 1:98-cv-00126-JFM

Document 833-10
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Filed 06/28/2004

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Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO THE PROTECTIVE ORDER May 14 2002

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1 ~ them by January 1998 when the acceptance of spent
fuel was supposed to begin, correct?
MS. HERRMANN:

Obj ection.

Vague.

Speculation.
In a IS- year time period, if there is a

will and finances, et cetera , from the
technological point of view you can develop a
system to accept failed fuel in a IS9 year period.

m going to hand you what the reporter
is about to mark as Exhibit

81.

(Barrett Deposition Exhibit

No. 81 was marked for

identification.
BY MR. STOUCK:

Let me identify this for the

record.

It is entitled, Transportation Business Plan

January 1986,
0311.

Bates number HQR- 037- 0258 through

Is that the document that you have?
It is.

Have you seen this before?

Yes.
What is it?

It is Transportation Business Plan from
long ago , January ' 86 .

1111

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Page 120

Yes.
Do you consider yourself to be

knowledgeable about " the schedule

DOE would have

followed had it begun to take SNF from purchasers
by January 31 , 1998 pursuant to the contract.
MS. HERRMANN

Objection.

Vague.

I suppose I have as much knowledge as

many.
As many?

Your last word was M-

is that what you said?

Yes.
What schedule
I never said I know as much as one

might know. view.

I know it from a policy point of

Could you give testimony under oath

about the schedule that DOE would have followed

had it taken SNF from purchasers by January 1998?
MS. HERRMANN

Obj ection.

Vague.

I will answer questions under
I can.

oath, if

What schedule would DOE have followed
had it begun to take SNF from purchasers by
January 31 , 1998 pursuant to this contract?
MS. HERRMANN

Obj ection.

Foundation.

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.......

Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANJ TO THE PROTECTIVE ORDER May 14 2002

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Page 121

Mr. Barrett is not here as a 30

(b) (6) witness.

We would have operated our system at
our plant which was, you know , whatever the

operation rate which transiented and leveled

out at

3, 000 metric tons
That I s what That' s what

per year after five

years. . That'

s what we were planning to

do.

you would have done?

we would have done if we

could have gotten the , you know , the sites

approved, et

cetera.
do you happen

And in what sequence

to know, can you just generally tell me a ramprate up to that 3, 000 ton rate that might have

been realistic?
MS. HERRMANN
Obj ect ion.

Foundation.

I don't know what system we are

referring to or what time because those are

changes as a function of

time.

So if you give us

the time frame
The government has told us that you are

one of the most knowledgeable people about how
the schedule would have been
asking about any documents.
I m not referenced. I m asking what the

schedule would have been.
You already told me it would have

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leveled out at a steady state of about 3,

000 tons,

and I I m trying

to find out your best testimony

about what the ramp- up rate would have been had

DOE gotten to take spent fuel by January 31, 1998.
MS. HERRMANN

Obj ect

ion.

If you want to answer by reference to

the current program plan or some other program

plan, that' s fine, or if numbers, that' s fine, or don t know , that' s fine.
what your answer

you want to answer with
if you want to tell me you

But it says here that you

are knowledgeable about this and I want to know

is.
Obj ection.

MS. HERRMANN

Foundation

speculation, and now it is vague.
It would have been whatever the rate

was for the MRS that we could have potentially

put in place in 1993 with whatever was in the
reference documents then which was something like

4-6-

12, 2

000, 3, 000.
And in what sequence would DOE

have accepted spent fuel from the various utility
contract holders had DOE begun to take SNF from

purchasers by January 31, 1998?
MS. HERRMANN

Obj ection.

Foundation.

Speculation.
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We would have

first of all it was

nonstandard fuel ,

and then use the oldest fuel

first table we looked at earlier by the contract

holders and worked out the details , or waste

acceptance issues ,

I think, was the name we used

to actually go down to shipping

campalgns.
so the

When you say worked out

actual sequence would not have been oldest fuel
. 9

first ,

it would have been some adjustment or

rearrangement of oldest fuel first; is that what
you are telling me?
MS. HERRMANN:

Obj ection to the extent

it mischaracterizes his

testimony~

It is my understanding that utilities

did not have to automatically ship the oldest fuel

first. first.

They had allocations based on oldest fuel

What fuel was shipped was an issue that

needed to be worked out between the contract
holders and the Department.

And as of today

- - well ,

would what

fuel have been shipped , have been worked out in

the manner you just described by January 31 , 1998 if DOE had begun to take SNF by that date from the

purchasers?
MS. HERRMANN:

Obj ection.

Foundation.

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~eCulation.
2 ~

A. Yes. Q.
No.

Do you know what the outcome of that

working out of the ultimate schedule for
acceptance would have been?
MS. HERRMANN

Same obj ections

Thank you.
Now , if you turn to Page 65 you are

again - -

now see how this document works.

You are

again listed as one of the individuals under
Interrogatory Number 65 , one of the individuals

within DOE with the most knowledge of whether DOE

would have given priority to purchasers with

shutdown facilities" -- 11 m sorry, would have

glven -- strike all

that.

The diction of this is

not very good, but let me start

over.

What this interrogatory says, at least
according to this page

is,

"Identify the three

individuals within DOE with the most knowledge of

whether DOE would have given priority to

purchasers with shutdown facilities priority in
the utility queue pursuant to the Standard Contract Articl~
VI. B .

1. b.

Do you see that?

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Page 140

inside at Hanford?

Yes.
Paid the fee to the government?

No.

They paid a

fee.

Who did they pay the fee to?

The operator of the facility, which
think is U. s. Ecology

Okay.

Thank you.

Now , tell me what effect this

litigation has had on RWI s consideration of

whether or not to accept GTCC wastes for disposal
in the repository.

MS. HERRMANN:

Obj ect

ion.

Vague,

foundation.
And let me caution you, if this requires
disclosure of communication between you and
counsel you should not answer~

All the litigation issues have just

made it very complex to make decisions that are in
shades of gray such as our authority to dispose of the greater than Class C waste, as well as the
22 t

financial equities between the government and the
individual contract holders, so that has made it

~ more difficult to reach closure on this

matter.

When you say has made it more

difficult,

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has this litigation caused the consideration by RW
of whether or not to accept GTCC wastes for
disposal in the repository to cease?

Has the

litigation caused consideration to essentially
stop or lS consideration of that matter ongoing?

As I said , it just makes it much more

complex.
Well, is consideration of disposing of

GTCC waste in the repository currently ongoing

within RW or has that consideration essentially
stopped because of the litigation?
It is being addressed.

It is in the

FDIS, but there is very little progress I think
toward resolution of the issue due to the

complexities that we talked

about.

Which is the litigation?

And current litigation , possible future
litigation and the whole legalities of the

situation.
Primarily the litigation and the legal

lssue of whether GTCC waste is covered or not by
the contract?
MS. HERRMANN

Obj ection to the extent

that it mischaracterizes his

testimony.

Is that what you are referring to?

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And also covered by the And also covered by the

Act.

Act, but that'

what you are referring to when you talk about
complexi ties?

Those are the

complexities, yes.
complexities.

Those are the complexities?

Those are the major

Are there any others that have led it
to be very difficult to address the matter at this

time?
I haven

I t thought

about

it.

m sure

there are others.

The state of Nevada comes to

mind.

Q.

But the major ones are this litigation

and the legal question about whether GTCC waste lS
covered or not by the contract?

And also if we are
authorized to dispose of

if we are

authorized under law,
waste.

clearly, to dispose of highly radioactive

I can argue that greater than Class C
lS low- level waste and not high- level waste and

23 That I s a complicated matter that lS currently 24 being litigated t being litigated
, and if it wasn

therefore we are not authorized to dispose of

it.

there would be debate amongst lawyers and

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1 ( politicians if we are authorized to dispose of it

I or not.

Q.

I understand your testimony to be that

absent litigation over the question of whether GTCC should or should not be disposed of in the

repository, absent that litigation, RW would be more actively and with less difficulty considering
that matter; is that right?
MS. HERRMANN

Obj ection to the extent

it mischaracterizes his testimony.
We might have.

Specula t ion.

Okay, then there must be some other
factor other than the litigation that is

inhibiting the act of consideration, and I would

like to know what that factor

is.

The authorization question, are we
authorized under the law to dispose of what is
essentially low- level waste in a high- level waste

repository.

That will be a question that will be

very likely litigated independent of the current

litigation.
Okay.
That I

your Vlew.
Why do you

Yes.
Why do you

think that?

think that there is some question about whether or

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not GTCC is covered by the contract that is not

going to be resolved in this

I mean your

distinction is between the statute and the
contract; is that what you

I re saying?
just a contract issue

Yes.

It I S not

that is at issue here, it is also are we
authorized to dispose of low- level waste in the

high- level

waste repository.

Assume that that question is exactly
the same question that is being litigated in this

case.

Just assume

that.

You don I

t have to

agree with it,

just assume

it.

Okay?

Go ahead.
Then is litigation over t at questlon
combined question, 11 m to assume they are -- 11

telling you to assume they are the same

thing.

that the factor that is inhibiting and making more

difficult RWI s consideration
MS. HERRMANN

of whether or not to

put GTCC waste into the repository?
Speculation in all

capital letters ,
I don

calls for a legal conclusion , and

assumes facts not in

evidence.

I t know.

It I S confusing

to me.

Okay.

But in any event , this

25 \..litigation is having some depressive effect on

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1 ~ RW I S consideration
eighteen times.
4 ,

of the matter?

MS. HERRMANN

Asked and answered about

Yes.
MR. STOUCK:

5 T

Can you mark this for me

please.
(Barrett Deposition Exhibit

No. 82 was marked for

identification.
(Discussion off the record.

BY MR. STOUCK:

You have been handed a document that is
marked Exhibit Number 82 , Mr. Barrett.
This is a

printout from an electronic database of a

publication ,

at least a portion of the publication

entitled Nuclear Wapte News.

The date is Thursday

March 14, 2002.
Do you see that?

I see it.
Do you know what that publication
I don

is?

I t know.
You don I

Okay.
is that because

t know?

If you read

it,

is that because if you read it

you don I t
don I t

read it in this electronic format?

You

recogni ze it?

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Lake H. Barrett CONT AINS CONFIDENTIAL INFORMATION PURSUANT TO THE PROTECTIVE ORDER May 14 , 2002 Washington , Do
Page 173

beglnning January 31 , 1998 , DOE could have readily

developed a transportation cask fleet in time to
commence that level of acceptance at that time?
MS. HERRMANN

Obj ection.

Speculation.

We talked about this to some extent
earlier today.

And this lS starting at what time?

You

said the early 1990s.
There is no time frame to this

question.

DOE could have developed, could have

deployed a transportation cask suitable to the

task to the extent that task - not already available.
so, yes.

that casks were

That you had at least eight years or

16 r

And would you also agree that
there was adequate time prior to
there lS

well,

adequate time from the enactment of the statute ln
1983 to the planned January 1998 acceptance

commencement date for DOE to have developed a

transportation cask or casks for nonstand~rd

fuel,

failed fuel and GTCC wastes, obtained the necessary
licenses from the NRC and procured enough such

casks in time to accept these materials commencing
in January of 1998?

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MS. HERRMANN

Obj ection.

Vague.

Speculation.
That
Okay.

that

could have been
have been done.

done?

could

technically
Now

could have been done.

you again

some of these things

I know we touched on earlier

, I I m just

attacking

it from a different angle

here.

You mentioned earlier today shipping

campaigns.

Do you recall that?

Yes.
Now, would you agree that there are

advantages to shipping campaigns versus moving

over only a small number of assemblies at a

time?

Yes.
Would you

agree

that one of

the

important advantages
be realized?
MS. HERRMANN

shipping campaigns

that

efficiencies in transportation operations tend to

Obj ection.

Vague.

Yes.
Okay, and would you agree that

repetitive operations such as cask

handling,

loading, decontamination, receipt and turnaround

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are all more efficiently accomplished per cycle
a campalgn versus individual cask transport?
MS. HERRMANN

Obj ection.

Vague,

compound.

Yes. Okay.

Good.

Now, also earlier today I believe you testified that you thought it was possible
looked at I think it was Page 8 from one of the

ACRs which had the oldest fuel first queue, if you

will.

Do you recall that?

Yes.
And the question

was, do you think it I S

possible that when DOE commences fuel acceptance
in 2010 or some other time that that queue, with

minor variations that we put to one side for

purposes of the earlier question and I will put
aside here, did you think it was possible that

that queue would be the actual sequence of pickup

of spent fuel.
Yes.

Do you recall that?

And you said you thought that was

possible?
It was possible.

Unlikely.

Unlikely.

That would be my next

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question.

We are back to that now.
Now , would you agree that an acceptance

sequence that strictly followed the OFF

queue, if

you will

- - do you
Yes.

understand that reference?

would be economically inefficient?
MS. HERRMANN

Obj ection.

Vague.

Not as economical nor efficient as

other alignments might

be.

Okay.

It would be relatively

economical and efficient, relative to some other

alignments.
Yes.
an you t ink of any -- do you know of

any - - would there be some alignments that might
be even less economically efficient than the OFF

queue?
Well , I suppose you could make them less efficient. You could spread them out.
Everybody has a right to go smaller amounts or
something like that

, but it'

s just speculative.

Do you think it would make any economic
sense to follow that queue for the actual sequence
of pickup?
MS. HERRMANN

Obj ection.

Vague.

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The one that is in that table?

Yes.
Do I think it would -- what is the

question?
Would it be economically

sensible.
I mean, it

Yes , it could be sensible.
is not desirable, but, all things

considered, if

there is a strict adherence to certain

interpretations of the contract, you could do

it.

Okay.

Your answer is it would be

sensible, because it might be required by the

contract?
Yes.

But that I s not - economical sense.

that

I s different from

It would be economically

relatively inefficient you already testified?
could be

would be would be

inefficient. inefficient? inefficient.
ve in the

I think much earlier today we looked at

the mission plan and there was an obj ecti
mission plan to conduct the program in a

cost-effective manner; do you recall

that?
ves

Yes.
And that is still one of the obj ecti

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of the program?

Yes.
What is your understanding of the
relationship between the obj ecti

ve of economic

efficiency and the fuel cost recovery nature of
the contract?
MS. HERRMANN

Obj ection.

Calls for a

legal conclusion.

I believe it is the f~deral

government' s responsibility to prepare a
cost-effective system to minimize the costs on the

waste generators for societal

good.
do you

Is that related to the

understand the term fuel cost recovery?
MS. HERRMANN

Obj ection.

Calls for a

legal conclusion.

I believe I

do.
the costs incurred

What is your understanding?

That the cost for

by this program are fully paid for by the waste
generators, in this case the utility contract

holders and the defense acti vi ties Department of Energy.
testified was

of the

And is that related to what you just
I think you just testified was

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Lake H. Barrett CONTAINS C(,i~fIDENTIAL INFORMATION PURSUANT TO THt:: PROTECTIVE ORDER May 14 2002 Washington , D.

Page 238

Page 240

Right. It' s moved now. All right. MR. STOUCK; Can you mark this one please , Number 92. (Barrett Deposition Exhibit No. 92 was marked for identification.) BY MR. STOUCK; Okay. This is a one- pager , Mr. Barrett. It has been marked Exhibit 92. It looks like a Memorandum of Agreement. It says , Subject; Multipurpose Canister Program , date April 30 , 1996 Bates number HQR- 045- 26 I 2. It has got your signature on it, and a Ms. Jill Lyte? Correct. Do you recall this document? Vaguely. Okay, what is it? And please review it before you answer. This was when we -- we had a very bad budget year in FY96 , and we were in the midst of finishing the Westinghouse design for the
multipurpose canister. And we wanted to finish

the instanl deposition ceased,

ness

1'-"

My Commission Expires:

Pat

L. Austin

Notary Public. DIstrict of Columbia My Commission Expli'eS 05- 14-2006

the design and complete the design before the design team disbanded to allow it to continue to

Page 239

Page 241

be of some use in the industry.
We asked the Office of Environmental

UNITED STATES OF AMERICA)

STATE OF MARYLAND
, CAPPY HALLOCK , the reporter before whom the foregoing deposition was taken, do hereby certify that the witness whose testimony appears in the foregoing deposition was sworn by me; that said deposition is a true record of the testimony given by said witness.

Management to try to support us with that and they agreed to do so , and this was the agreement that they provided a million dollars to us to help us finish that design. Why would they do that? MS. HERRMANN: Objection. Speculation. So they could use the technology and storage that they have. They have storage needs and that technology would be helpful to them as well. What are their storage needs? They store commercial fuel at Idaho as well as West Valley, New York and also DOE fuel in the end reactor. And the technology being developed in
the MPC program could be useful to EM in

I further certify that I am neither
counsel for , related to. nor employed by any of

the parties to the action In which tbis deposition was taken; and furtherthat I am not a relative or employee of any attorney or counsel employed by
the parties hereto , or financially. or otherwise

interested in the outcome of this action.

connection with its responsibility for the storage ofthat fuel you just mentioned? Correct. Okay. MR. STOUCK; Let' s quit for the day. (Discussion off the record. (Thereupon , at 5;40 p. , the taking of

CappyHallock , RPR , CRR

My Commission expires January I , 2005

61 (Pages 238 to 241)
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Filed 06/28/2004 Page 21 of 21

Case 1:98-cv-00126-JFM

Document 833-10

ERRJ.... A SHEET FOR THE TRANSCRIPl

0F:

Notice Date: May 16 , 2002 Case Name: Yankee Atomic VS. United States " Case Number: 98- 126C- 987 4C )/0 May 15 , 2002- .!J 2..Dep. Date: Deponent: Lake Barrett (cont) Washington DC

Place:

Ref. No. : 4269-

CORRECTIONS:

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