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

Case 1:98-cv-00126-JFM

Document 813-2

Filed 05/28/2004

Page 1 of 21

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

Plaintiff
No. 98- 126 C

(Senior Judge Merow)

UNITED STATES OF AMERICA
Defendant.

Filed Electronically May 28 , 2004

APPENDIX TO
YANKEE ATOMIC'S MOTION TO PRECLUDE EVIDENCE IN LIMINE CONCERNING FOUR GOVERNMENT DAMAGES " SCENARIOS" THAT (1) HAVE NO RELEVANCE TO YANKEE ATOMIC'S DAMAGES CLAIM , AND (2) HAVE NO BASIS IN THE GOVERNMENT' S PROPOSED FINDINGS IN ITS PRETRIAL SUBMISSIONS

JERRY STOUCK Spriggs & Hollingsworth 1350 I Street , N. , Ninth Floor Washington, D. C. 20005 (202) 898- 5800 (202) 682- 1639 - Fax

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY

Of Counsel:
Robert Shapiro

SPRIGGS & HOLLINGSWORTH
May 28 , 2004

Case 1:98-cv-00126-JFM

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Description
INDEX TO APPENDIX

Pa2e

Transcript of Hearing on May 4 , 1999 (Excerpts) ..................................................................

Deposition of Edward Abbott (May 10 2004) (Excerpts) .....................................................

Analysis of the Total System Life Cycle Cost ofthe Civilian Radioactive Waste
Management Program , December 1998 (Excerpts)................................................

Case 1:98-cv-00126-JFM

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EXHIBIT

. - . -Case 1:98-cv-00126-JFM Document 813-2 Filed 05/28/2004 Page 4 of 21

UNITED ST TES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

CONNECTICUT YANKEE ATOMIC POWER
COMPANY

MAINE ATOMIC

POWER COMPANY

Plaintiffs

No.
THE UNI TED
STATES

98-126C

98 - 154C 98 -4 74C

Defendant.

Pages:

1 through 124
Washington

Place:
Date:

D.C.

May 4

1999

HERITAGE REPORTING CORPORATION
Official Reporters 1220 L Street , N. , Suite 600 Washington , D. C. 20005 (2Q2) 6~- 4888

Case 1:98-cv-00126-JFM

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kind of a concept.

It is a little bit difficult though, as

I say, in our present circumstance of having this open
options about how we' re going to proceed.

The current submission date - -

let just, as I say,

try to - -

I will try to wrap up here.

The current

submission date is May 17.
THE COURT:

You probably have to index that, some

index too if you go that
MR. STOUCK:

route. Yes, yes.

Well, what we

- - where
to

currently are -- and again, we

re pretty close, frankly,

being done, at least with the analysis -- or with the
analysis is that for all three cases, which has been a
substantial task, is not a per diem for the reason that

mentioned.

But I think it should not

be.

ve talked

about the per diem concept.

It should not be difficult once

the future - -

the immediate future, the imminent

future,

becomes a little more definite.

It seems to me not a

difficult task to translate that into an annual number.

Submissions are currently due May
THE COURT:

17.

As you see, I' m

trying to avoid having

a trial on when they are going to actually pick it
MR. STOUCK:

up.

Well , we have informally broached the

subject with the government of a stipulation on that, Your

Honor.

I don' t think that the Plaintiffs are the only

ones,

the Plaintiffs in Court,

are the only ones who perceive that

Heritage Reporting Corporation

(202)_ 628-4888

Case 1:98-cv-00126-JFM

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124
REPORTE~S - CERTIFICATE

DOCKET NO.

98-126C, 98-154C and 98-474C

CASE TITLE:
HEARING DATE:
LOCATION:

Yankee Atomic Electric Company
May 4, 1999

Washington, DC

I hereby certify that the proceedings and evidence are

contained fully and accurately on the tapes and notes
reported by me at the hearing in the above case before the
United States Court of Federal Claims.

Date:

May 4, 1999

~j(Ar.U
Official Reporter
Suite 600

txi!ilLr

Heritage Reporting Corporation

1220 L Street, N. W.

Washington, D.

C.

20005

Heritage Reporting Corporation
(202) 628- 4888

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EXHIBIT

Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPOSmON

Document 813-2
May 10 , 2004

Filed 05/28/2004

Page 8 of 21
Yankee Atomic v. USA

Page 1

In the United States Court of Federal Claims

-x

Yankee Atomic Electric

Company
: NO. 98- 126C

Uni ted States of America

May 10, 2004

DEPOSITION OF:
Edward C. Abbott

a witness, called by counsel pursuant to

notice,

cornrnenclng at 9: 30 a. rn., which was taken at Spriggs

and Hollingsworth,

1350 Eye St.,

NW , Washington , DC

Overnite Court Reporting Service

(301) 593- 0671

Washington , DC Metro Area

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
May 10 , 2004

Filed 05/28/2004

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Yankee Atomic v. USA

Page 100

I don t believe

so.

Now, you told me earlier that the

Department of Justice developed the five scenarios,
is that right?

That'
to eval

s correct.

That'

s what we were asked

ua te .
Scenario four is the actual damages claim

of each of my three clients, right?

Yes.
Presumably the Department of Justice

didn

t develop that -- I mean, they identified it as

a scenario but the information in the scenario came
from my client' s claims, right?

Yes.
The other four scenarlOS the Department of
Justice developed and said to you evaluate these?
MR. CRAWFORD:

Obj ection

We were asked to look at
involved different storage

scenarios that

methods, wet or dry,

different acceptance rates and then , glven that, we

developed the tables that are in the

report.
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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
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Filed 05/28/2004

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Yankee Atomic v. USA

Page 101

The assumptions for each of the four
scenarios other than scenarlO four , who developed

those as sumptions?
MR. CRAWFORD:
and vague.

Obj ection, overbroad

Well, if you re talking about the

assumptions on the pickup dates and rates, that data
was given to us by -- we were told to look at those

scenarios -- those -- using the 1998, 2010 pickup

dates -MR. S TOUCK :
Excuse me.

(Pause)
Can you answer that question now?
MR. CRAWFORD:

Objection, vague.

Since that'
over.

s a Ii ttle

garbled, let'

s start

The Department of Justice -- agaln, aside
from scenario four which is the Yankees ' claim, we

were asked there to evaluate that claim, scenarios
1, 2 , 3, 5 are scenarios that we were asked to

develop given the assumptions of a pickup date and a

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
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Yankee Atomic v. USA

rate.
And --

Page 102

For each of the -- that' s what we

developed.
You were glven the pickup dates and the
rates -- you were given the start dates and the
rates by the Department of Justice?

The start

dates, yes.

The pickup

in~ormation, the allocations as it were for each

plant were given to us by the Department of

Justice.

Do you know where those allocations came

from?
I don t, no.

Were they given to you in

spreadsheet

form?
Yes, they were.

Have we been provided those?
Yes, you have.
I take it -- let' s start with scenario by

scenarlo.
Scenario one then, just so I understand

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
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Yankee Atomic v. USA

Page 103

this, you don t have any opinion on whether in the

non-breach world DOE would have or should have been picking up fuel at the rates that are assumed for
scenario one here, is that right?

That'

s correct.

You re not going to be offering an opinion
abou t

tha t ?
I will not be offering an opinion about

rates.
At all in any scenario?

That'

s correct.

Or about the date that DOE is going to
start picking up in the breach world?

That is also

correct.
vlng

Do you know who is going to be gl

opinions about that?
I have no

idea.

Do you know whether the assumptions in scenario one about rates in the non-breach world are

reasonable?
MR. CRAWFORD:

Obj ection to the lack

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
May 10, 2004

Filed 05/28/2004

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Yankee Atomic v. USA

Page 104

of foundation.
I don t know if they are reasonable or

unreasonable.
The same for the breach world assumptions
In scenario one?

That'

s correct.

Would you say that you don t know whether any of the assumptions about rates in any of the
scenarios are reasonable or not?

That'

s correct.

I take it then you would not have any

oplnlon about which scenarlO among the five is the

most reasonable, relatively
MR. CRAWFORD:

speaking?
Obj ection to the

vagueness of

that.

That' s sort of an odd question in a way.
Do you have an oplnlon about which of

these five scenarios is the most reasonable among
the five, relatively speaking?
MR. CRAWFORD:

Obj ection.

Of course, the 1998 scenario didn t happen

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Document 813-2
May 10 , 2004

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Yankee Atomic v. USA

so obviously they aren I t part -- they won I t happen, They didn I t start picking up in those scenarlOS.
1998.

Page 105

2010, 1' m

not offering an opinion on the

2010.
I I m talking about the scenarios I I m not talking about -- maybe we

overall.

I re not

communicating here.
There are five

scenarlOS.

There are five scenarios and each scenario

is a breach and non-breach

case.

Can you say which of these

scenarlos -- and maybe this is the missing link -- can you say which of these scenarlOS is the

most reasonable scenario to evaluate for

purposes of

determining damages in the Connecticut Yankee
MR. CRAWFORD:

case?

Obj ection to the

vagueness.
No.

You don I
No.

t

have an oplnlon about that?

Do you have an oplnlon whether any of

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
May 10, 2004

Filed 05/28/2004

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Yankee Atomic v. USA

Page 106

these five scenarlOS are reasonable scenarlOS to use
in evaluating Connecticut Yankee s damages?
MR. CRAWFORD:

Obj ection to the

vaguene s s
No.

Would you gl ve the same answers for Yankee
Atomic and Maine Yankee?
MR. CRAWFORD:

Same obj ection

I would give a no answer to Connecticut

Yankee and Maine Yankee.
What about Yankee Atomic?
Do you have an

oplnlon whether any of these five scenarios are
reasonable for purposes of determining Yankee

Atomic s damages?
MR. CRAWFORD:

Obj ection, same

obj ection.
No.
Do you have any oplnlon about whether any
of these five scenarios are reasonable for purposes
of determining Maine Yankee s damages?
MR. CRAWFORD:

Same obj ection .

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Case 1:98-cv-00126-JFM
EDWARD C. ABBOTT DEPosmON

Document 813-2
May 10 , 2004

Filed 05/28/2004

Page 16 of 21
Yankee Atomic v. USA

Page 107

No.

Let'

s stick with Connecticut Yankee.

will be looking at the other

convenience ini tially,
(Pause)

reports, but for let' s look at this.

I take it you agree with everything that'

stated in exhibit

two.

Yes.
You
exhibi t

agree

wi th

everything that'

s stated in

one?
Yes.
You

agree

wi th

everything that'

s stated in

exhibi t

three?
Yes.
Do you know why -- you refer in here to

the Zion plant.

Is that right?

Yes.
Do you know why the Zion plant is storing
fuel in -- well, do you know whether the Zion plant

is storing spent fuel in its pool for an indefinite

period?
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Case 1:98-cv-00126-JFM

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EXHIBIT

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HQR- O36- 0006

00619

00619- 0001

.-....- -.-

-----

Case 1:98-cv-00126-JFM

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This publication was produced by the u.S. Department of Energy s Office of Civilian Radioactive Waste Management
For further information, contact:

Office of Civilian Radioaciive Waste Management National Information Center 600 Maryland Ave., S. , Suite 695 Washington, DC 20024
or call:
800- 22S- NWPA (6972)
Washington, DC: 202- 488-6720

or visit:

http:\\www. rw.doe.gov

HQR- O36- 0007

00619- 0002

--.--. .- ---------.--------... ___._m.

Case 1:98-cv-00126-JFM

u ..----

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December

Total System Life Cycle Cost Program

1998

of emplacement. All structures will be designed so as not to preclude a future decision to extend retrievability beyond a. lOa- year period should future decision-makers choose to obtain additional repository peIfonnance data. Additio~al cost would be incuITed to keep it open

longer. .
It is assumed that a repository draft environmental impact statement is completed for the Yucca Mountain site during 1999, the final environmental impact statement is completed in 2000, and a
technical site suitability evaluation is completed in 2001. The CUITent repository
design uses an

areal mass loading of waste, which is an average amount of uranium in a given area to maintain temperatures within established limits, of approximately 85 MfHMIacre. For purposes of this estimate, it is assumed that the repository will be granted a high thermal- loading license prior to emplacement operations. Variation from these milestone events and assumptions would impact the costs. Emplacement rates at the repository were assumed to be the same as the rate at which the repository receives waste. These rates are shown in Tables 3, 4, and 5.

The V A cost estimate is a subset of the TSLCC. There are three key differences between the TSLCC assumptions and the V A cost assumptions. The first difference is that the TSLCC

addresses the costs for management and disposal of more wastes than the V A. The V A, Volume ::i, provides an estimate of disposal costs for only 70,000 MTHM of waste, including 63, 000 of commercial SNF, 2, 333 MTHM of DOE SNF, and 8, 326 canisters of lll.W. The lvITHM SLCC includes an additional 23, 317 MTHM of commercial SNF, an additional 237 MTHM of DOE SNF, and 11, 678 additional canisters oflll.W. The second difference is the ~nc1usion of all waste acceptance and transportation costs for bringing the waste to the repository, program . of all costs from integration costs, and Institutional costs. The last difference is the inclusion Figure C- l in Appendix C program inception in 1983 to License Application (LA) in 2002.

tllustrates the relationship of total system costs to the LA plan and VA repository costs , on an
annual basis.

6 WASTE ACCEPTANCE AND TRANSPORTATION ASSUMPTIONS
As a basis for planning, OCRWM uses the no-new-orders, end of reactor life case, referenced in (CRWMS M&O 1998d). For commercial SNF, WAST Cost Estimate Assumptions Document the this case does not assume additional early reactor shutdowns or service life extensions that would reduce or increase projected quantities of SNF, respectively. Commercial SNF , DOE SNF, and HLW pickup is assumed to begin in 2010. Initial acceptance rates for DOE SNF and lll.W are assumed to be low until 2015. Commercial fuel pickup allocation assumes fuel is picked up from the sites with the oldest fuel first , in accordance with the Annual Capacity Report (ACR)

(DOE 1995a)

and agreements with the

uti1ities. Table 3 shows

the

acceptance rate for

commercial SNF by MTHM per year.

All commercial SNF is stored at utility sites prior to being transported to the Monitored Geologic Repository (MGR). Storage costs at utility sites are not included in this TSLCC analysis. The cost of mixed oxide SNF transportation casks and transportation from utility sites to the MGR is included in this TSLCC analysis as part of the commercial allocation. MOX SNF is assumed to be transported in a commercial 21- PWR uncanistered fuel cask containing only 9 assemblies.

HQR- O36- 0031

00619- 0026

Case 1:98-cv-00126-JFM

Document 813-2

Filed 05/28/2004

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The following number is for Office of Civilian Radioactive Waste Management
Records Management purposes only and should, not be
used when ordering this publication.

Accession No. HQOel9980901.0001

HQR- 036- 0086

00619- 0081