Free Motion in Limine - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPOSmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 1 of 17
Yankee Atomic v. USA

Page 97

MR. SHULTIS:

Obj ection

mischaracterizes his prior

testimony.

If there are outstanding documents I have
not reviewed there is always the potential that it

would change my opinion in some fashion, and the
same is true with your hypotheses that these

documents have not been

seen.
I don t know until

There may be some minor or maj or

reevaluation of my
see the documents.

opinion.

I wouldn t anticipate it but

it'

s possible.

You say you wouldn t anticipate

it.

What

do you think the likelihood is that more documents

would cause you to change the opinions that you
offering in exhibit one?
MR. SHULTIS:

Obj ection, asked and

answered, calls for

speculation.

I don t know if I can assign a probability
to that.

Can you gl ve us any ballpark?
MR. SHULTIS:

Same obj ections .

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062

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 2 of 17
Yankee Atomic v. USA

Page BB

I don t think addi tional documents would

change the opinion

significantly.

What do you mean by significantly?

As I indicated, I can t put a numerical
probabili ty on that.

As I understood the way you were uslng

significantly "

in that sentence, you were using

that to indicate the extent of the change, not the
probabili ty of the change.

What do you mean by " significant"
Significantly is

significant.

m not

able to sit here and tell you that the eleven months

may become 11. 5 or 10.

Significant is

significant.
What about the part of your opinions that
attribute the causes of the delays you

ve identified
vague.

in each of the three Yankee ISFSI projects?
MR. SHULTIS:

Objection ,

not sure what you re asking about.
MR. SHAPIRO:

I haven t finished my

question yet.
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063

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3, 2004

Filed 06/01/2004

Page 3 of 17
Yankee Atomic v. USA

Page 89

MR. SHULTIS:

Sorry.

What about -- let me start over

again.

In each of your opinions about a delay in

each of the three Yankee ISFSI projects you
a t

tribute a cause to that delay, don t you?
I do.

Is there a chance that your opinion as to

the cause of those delays would change if you review
more documents?

It'
the delay.
defini tely.

s possible, or at least a portion of

Perhaps it would be a portion

The eleven months might be ten months of one

and 1. 0 of something else if there was some
additional documentation that would yield

information on that.
Do you believe as you sit here today that

you had sufficient documentation to make the opinions that you made in exhibit one about the
causes of the delays you ve identified reliable?
MR. SHULTIS:

Obj ection, asked and

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064

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPOSmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 4 of 17
Yankee Atomic v. USA

Page 90

answered.
I believe they are reliable based on the

information that I have reviewed.
Also in each of the opinions about delay
of the ISFSI proj ect that you offered an opinion

that those delays were not related to any action or

inaction by the Department of Justice, is that

correct?
Department of Energy.

Department of Energy, is that correct?

Yes.
Is that part of your oplnlons that those

delays are not attributable to actions or inactions

of the Department of Energy, is that opinion subj ect
to change upon review of more documents?

It'

s possible.

Can you give me an example of a document
you might look at that would change that opinion?
MR. SHULTIS:
Obj ection , calls for

speculation.
re in the process of looking at Yankee

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065

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 5 of 17
Yankee Atomic v. USA

Page 122

And the resulting inability to get a

building permit, yes.
You ascribe the eleven month delay in the

completion of fuel transfer to CY' s direction to
postpone construction work at the ISFSI , is that

correct?
Yes.
Do you have any opinion as to whether

Connecticut Yankee acted unreasonably in postponing

construction work of the ISFSI at that time?
I didn t offer an

opinion, no.

In fact, would you conclude that it was

reasonable for Connecticut Yankee to postpone

construction work in light of the inability to

obtain a building permit because of the zoning

dispute?
MR. SHULTIS:

Obj ection, asked and

answered.

He said he didn t offer an opinion

yet.

If they don t have a building permit and

they are not permitted to do so by state law it may

be a reasonable

decision, yes.
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066

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3, 2004

Filed 06/01/2004

Page 6 of 17
Yankee Atomic v. USA

You

re not saying it'

Page 123

s Connecticut

Yankee s fault that completion of fuel transfer was
delayed eleven months?
I don t go to that

level.

I stop at

Connecticut Yankee essentially.

m not trying to assign delay to a
contractor or subcontractor.

m saying that

Connecticut Yankee suspended work and that' s not the
Department of Energy

s fault.

So I ascribe it to Connecticut Yankee.

you re asking me to take another step down, I

haven

t done that.

Why did you choose to phrase the cause of
the delay as Connecticut Yankee s direction to

postpone construction work as opposed to the town of

Haddam s refusal to issue a building permit?
As I indicated, I tried to keep it at the
level of the utility.

I think I did that on all of

them.
Paragraph four on page eight of exhibit one, you refer to an eleven month delay to the

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067

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3, 2004

Filed 06/01/2004

Page 7 of 17
Yankee Atomic v. USA

Page 170

but the exhibit five, that addresses specific CPM

acti vi ties

that were identified on which the delay

was experienced.
Back to exhibit one, page nlne, paragraph
four, are you attributing any of the

16 month delay

to actions or inactions of Maine Yankee?

To the extent that Maine Yankee is

responsible for SWEC and NAC, the answer is

yes.

They hired SWEC and they hired NAC and they did some

of the work themselves on Maine Yankee, and so if

there was a delay on the proj ect,

the owner is

responsible.
Do you have an oplnlon as to whether or
not Maine Yankee s selection of SWEC was imprudent
in any way?

I do not have such an

oplnlon, no.

Do you have an opinion as to whether Maine

Yankee s subsequent decision to contract with NAC
was imprudent in any way?

I have no opinion,

no.

Do you have an opinion that Maine Yankee

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068

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 8 of 17
Yankee Atomic v. USA

acted in an unreasonable manner in

its

Page 171

administration of its contracts with either SWEC or
NAC in any way?

I have not been that

specific, no.

Is there any fault that you have found
wi th

Maine Yankee contributing to the 16 month delay

that you note in paragraph four , page nine of
exhibit one?
MR. SHULTIS:

Objection ,

asked and

answered, assumes facts not in

evidence.

Exhibi t five are the reasons in my opinion

that the 16 month delay was -- the basis for the
cause of those delays.

Those are also shown as

activities on 0074.
The responsibility for execution of those

acti vi ties,

for example in period two, GTCC TSC

repairs, procedures and the GTCC loading was Maine

Yankee s responsibility.

Precisely when NAC picks

up that responsibility, I did not offer an opinion

on that.
Do you have any opinion as to why time was

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069

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 9 of 17
Yankee Atomic v. USA

Page 172

lost on GTCC procedure development and training and
GTCC TSC repairs?

It'
repalr.

s inconclusive pt this

time.

We know

that it was prolonged, that it took a long time to

Canister number 63, it was loaded last, the
procedures were not

done.

The precise cause of that

we did not yet determine.

You say it took a long time to load a
particular canister.

Long in comparison to what?

I don t have those figures with me.

were in the process of looking at those over the
last couple of weeks.
I don t have any hard dates for you in that

regard.
Do you have an oplnlon as to an

appropriate length of time it should take to load a
canister of GTCC waste?

not have
long

personal oplnlon
GTCC

how

takes
you

load
not

canister position

waste, no.
say

took

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070

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 10 of 17
Yankee Atomic v. USA

Page 173

an exceSSl ve amount of time to load?

I can measure it against the plan and

that' s what I' m doing.
Do you have an oplnlon as to whether or

not the plan was ambitious or conservative or right

on the money as to how long the timeframe should

be?

First of all, it was done out of sequence
so there really isn t a plan to do it in this

process.
The four month delay is borne out of the
late delivery of canister number 63 on April -- In
April and then what should have happened is the dry
run, testing and final procedures should have
started immediately, and all of that twelve months

is associated with events on the GTCC that was not

planned to occur during that time frame.
So the twelve month delay is borne out of
that delay.

Moving on In your oplnlons noted in

paragraph four ,

page nine of exhibit one with regard

to the 16 month delay in planned completion of the

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 11 of 17
Yankee Atomic v. USA

Page 174

planned transfer you say this delay is not related to actions or inactions of the Department of
is that correct?

Energy,

Yes.
What' s the basis of that conclusion?
In reviewing the chronology in the

timeframe we just discussed here, early 2001 through

early 2002,

I saw no evidence that the Department of

Energy was responsible for any of

that.

Did you analyze any actions or inactions

of the Department of Energy on this issue, the 16
month delay in Maine Yankee?

The level of detail -- I have not seen
anything at this point in

time.

As I indicated earlier, this is being
studied in more detail and the details, the manner

in which this procedure,

development, training,
s being investigated.

TSC

repalrs and so

forth, it'

As far as you understand the

situation,

the Department of Energy simply wasn t involved in
those issues?

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072

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 12 of 17
Yankee Atomic v. USA

It'

Page 175

s Maine Yankee or one of its

contractors that caused the

gap.

Suppose Maine Yankee is correct that
absent DOE' s breach of its spent fuel removal

contract, that it would not have built the
all but for the breach.

ISFSI at

In that instance would the delay be related
to inactions of DOE?

If the delay is caused by nonperformance
have a contractor

, I' m

not sure what the breach or

non-breach has to do with
of the work.

it. It'

s pure performance

My question is suppose the work didn
have to be done at all but for the breach?
MR. SHULTIS:

Obj ection, asked and

answered.

Isn

t the party that caused the need for

the work to be done at all responsible?

There s always an obligation for the party
that is pursuing work to do it by mitigating

problems and doing it reasonably, pursuing that work

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 13 of 17
Yankee Atomic v. USA

Page 176

consistent with industry standards.
Do you have an opinion that Maine Yankee

failed to act reasonably in any way with respect to

the 16 month delay that you are referring to in
exhibi t one, page nine?

The gap between the delivery of the

first

canister and the start of dry run is a year and the

plan shows no

gap.

If you ll see the one in the right hand

column, that is a credit of one month because the
fuel load was, in fact, accomplished during this

time and it comes off the ultimate load and

fuel

transfer activity at the bottom of the page, but that should not have happened, that whole

timeframe.

I don t think you quite answered my

question which is do you have an opinion that Maine

Yankee failed to act reasonably in any way with
respect to the 16 month delay that you opine about
on page nlne of exhibit one?
MR. SHULTIS:
Obj ection , asked and

answered.
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074

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3, 2004

Filed 06/01/2004

Page 14 of 17
Yankee Atomic v. USA

Page 177

Yes.
How did Maine Yankee act unreasonably?

In the fashion that I'

ve just indicated.

In period number one, it dealt with

inability to pursue the state permitting and construction for phase two, construction for phase
two of the ISFSI was substantially behind schedule

and the procedures,

development, training,

GTCC TSC

repairs, GTCC loading and transfer all exceeded the
original plan by twelve months.

I understand that the work took longer than the original plan but focusing again back on

paragraph four, page nine of exhibit one, where in
that paragraph or elsewhere in exhibit one do you

say that the 16 month delay is due to unreasonable
conduct by Maine Yankee?
MR. SHULTIS:

Obj ection, asked and

answered.
It doesn t say but implicit in the
responsibili ty that Maine Yankee has for SWEC and

NAC, there was no one else doing the

work.

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075

Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3, 2004

Filed 06/01/2004

Page 15 of 17
Yankee Atomic v. USA

Page 178

What are you saYlng that Maine Yankee
should have done with respect to SWEC and NAC?
There were substantial problems.

They

should have either -- I can t speculate on what they
should have done but the problem should have been

resolved in some fashion or they have to accept the

repercussions, if you will, and the fuel loading was

late.
You say that Maine Yankee has acted

unreasonably.
What should they have done instead that
would have been reasonable?
MR. SHULTIS:

Obj ection,

mischaracterizes his

testimony.

m not sure I could answer the question
because Maine Yankee retained SWEC and NAC to do
their work.

If there s a delay in the work then the
responsibili ty lies with Maine Yankee because they

hired the

contractor.
Is that a legal oplnlon you re offering?

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 16 of 17
Yankee Atomic v. USA

Page 179

Why is that Maine Yankee s responsibility?

When you

say they are responsible, I don t understand the

basis for that

statement.
hire a contractor to do work and

I f you

delay a bridge opening or whatever it may
the owner s responsibility.

be, it'

I f he seeks

to recover those damages from in

this case SWEC or NAC, that' s fine, but the ISFSI was not finished 16 months earlier and whatever

costs are different between wet and dry, it seems
like the Department of Energy should not pay those

costs.
But isn
offering?
Might have some legal
t that a legal opinion that you

overtones.

I don

know.

That'

s my opinion,

though.

How is that opinion informed by expertise?
How is the opinion?

Informed
Based

expertise.
experlence.

Anything else?
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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-7
May 3 , 2004

Filed 06/01/2004

Page 17 of 17
Yankee Atomic v. USA

Page 180

No.
Back to part of exhibit four, the page
that ends in 0074.

Yes.

The ISFSI as- built

diagram.

Right about

In the middle of that page, maybe a little bit above
the middle, there s written there if I read this

correctly MY phase two construction is critical

path.

No confidence in

I believe it'
impact.

s BME' s

forecasts, delays have had an
for GTCC.

ISFSI ready

What' s being discussed in that text?
In the timeframe April , May, June, the

performance of the ISFSI subcontractor or contractor
lS poor.

They were behind schedule.

They were not

making progress whatsoever.

So that is a representation that the June
2001 comment, if you look at the

chronology,

probably get a little bit more information about
tha t

document.
The ISFSI ready for GTCC dated July 25, 2001

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078