Free Response to Motion - District Court of Federal Claims - federal

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0 0"-

&dtani!es of Scheduling S\Qm
The OFF

l~g can be useful, however. The scheduling queue can be used as an

allocation otsche4~ing slots rather than as a rigid schedule for actual aceeptance. If used as an
81location of scheduling slots, the OFF. liSting can serve asa useful starting point ftom which

utilities can exchange or swap such scheduling slots in a manner that would increase efficiency

for each utility and reduce total u~ty costs.
DOE has long expected that the exchange provisions in the Standard Contracts woUld

allow ~d~iry to optimize

the

allocation of waste acceptance ~pacity to meet individualutility
I had that

. needs, Without th~ overt involvement of (DOE)."n

expectation myself when I was

Director ofOCRWM. Using such exchanges, utilities with Must-Move' fuel would have

in~ntive to trade for early acceptance slots so as to reduce their spent fue1 storage costs.

3. '

DOE' s Consideration of Proposed Exchanges

As noted above, plaintiff' s ~ontract provides a mechanism through which utilities can

excluuige acceptance slots. The contract provides DOE with a role in approving or disapproving
of such exchanges of slots for spent fuel acceptance. In order to have achieved an efficient
schedule for spent fuel acceptance, and thereby to have minimized utilities' total costs , DOE would have approved such exchanges ~iberally. I expected that DOE would do so when I was
Director of OCRWM.

With reasonable planning, DOE would have been able to have accommodated most exchanges that would have been likely to have added to the efficiency of the spent fuel

g., Letter from Dreyfus (OCR WM director) to Andrew Kadak (Yankee Atomic chief executive officer) dated September 28
, e.

. 23 See

, 1995. .00013

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acceptance schedule. As explained above, plants with Must.;,Move fuel would have been those

that would most like~y have had an economic incentive to exchange fo~ the' opportunity to have
. had their spent fuel accq,ted earlier- by

the government. Similarly, as exPiained above, plants

. \1ittbout MiistiMove' fuel, ' particularly plantS with ample spent-fuel pOol capacity, .would have had

, an economic incentive to exchange away early slots for spent fuel acceptance in favor of groups

. ofJater slots in order, to avoid the disruptions inherent in moving spent fuel ftom an operating
. piant. . Also as noted above, the ' govenuit~nt tracks ~d. poss~ses 4ta
showing . the

l~cations and

. funmgofMust-Move fueL The govermrient could have and should have used this datato have

planned its spent fuel acceptance capabilities in order to have been able to have accepted MUstMove fuel nom the places it would be. Indeed, the government haS performed a variety
aDatyses in' Which it has identified efficiency enhancing spent fuel a~ceptanct schedules.24 Thus; .

DOE should and would have been able to have accommodatddefficiency-enhancing exchanges.

Data or Information Considered in forming Opinions
Data and other information I considered in forming my opinions is listed in exhibit 1 to
this report..

III.

Qualifications
My qualifications to offer the opinions included in thls report, including a list of all

publications I have authored within the preceding ten years, lU'e set out in exhibit 2 to this report.

24

See, e.

Operation Options Report;

Spent~uel Acceptance Scenarios Devoted to

Shutdown Reactors,

Prepared by Pacific Northwest LaQaratory for the U. S. Department of Energy (October 1989); MRS Systems Study Task Prepared by Pacific Northwest Report; Laboratory for the U. S. Department of Energy (April 1989)
2S

addition to my own knowledge and expertise, I have considered the expert witness report ofIvan Stuart as further support for this opinion.

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I :.
IV.
Compensation
I am being paid $150

pe~, ~o~

~or

my time working on this matter.

Other Expert Testimony
I have

not testified 'as an expert

at trial or by deposition hi any other cases within

the

preceding four years.
Respectfully submitted;

Dated:

"Iune

~O~'

1999 '

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EXhibit 1

fjA TA ANP-OTHER INFORMATION CONSID~RBD IN FORMING

1.

' Ciyilian Radioactive Waste Management System Modular Design/Construction and
. Opera.q~l:1.Qptions Report, Revision 02 (December
s. Department of

OP~ 1'8, 1998).

~1~
. 4. .
Nuclear Utilities and OCRWM, in 2 1990. Expert Witness Report

Energy Contract No. DE-CROI- 83NE44428, Contract for Disposal Spent Nuclear Fuel and/or ffigh-Level Radioactive Waste (June 22, 1983).

of

Mission PlaIi for the Civilian Radioactive Waste Management Program, DOEIRW-OOOS '

T. W.. Wood (pacifi~ ~ortbwest Laboratory), Spent Fuel Storage Requirements for
ProceedIngs oft~e Intemational Topical Meeting at

High Level Radioactive Waste Management: Vegas, Nevada, April 8-12,
:~1

Spent Fuel Storage Requirements 1994-2042 , DOEIRW-O431, Rev~ 1 '(June

1995).

Civilian RadioaCtive Waste Management System Requirements Document, ReVision OS, DOEIRW-0406 (January 1999).
ofFrapk

C. Graves.

. Expert Witness Report ofIvan F. Stuart.

W. Doman (WESTON/Rogers & Associates) and T. R Tehan (pa!:ific Nuclear),
Significance of

Campaigned Spent Fuel Shipments.

10.

1987 Annual Capacity Report, DOEIRW-0146 (June 1987).

11.
12.

1988 Annual Capacity Report, DOEIRW-0191 (June 1988).

, 1995 Annual Capacity Report/Annual Priority Report, DOEIRV1-O457

~farch 1995).

13.

Letter from D~el Dreyfus (OCRWM Director) to Andre~ Kadak (Yankee Atomic, . Chief Executive Officer), dated September 28, '

1995.
of

14.

Spent Fuel Acceptance Scenarios Devoted to Shutdown Reactors, Prepared by Pacific
Northwest Laboratory for the U. S. Department

Energy (October 1989).

15.

MRS System Study Task G Report, Prepared by Pacific Northwest Laboratory for the
S. Department of

Energy (April 1989).
00016

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16.

Alternative Allocation Strategies for DelivetyRigbts to Purchasers

for Spent Nuclear Fuel and HigbPrepared' by Transportation Operations 1;he
. ~erIDr (JanuaIY

1991)~
LevelRadioactive Waste: AWhite Paper Project Qffice

of Disposal

Services
on Issue

Ll,

for the U.S. Departmen,t

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Exhibit 2
JOHN W. BARTLETT

WORK EXPERIENCE

Senior Project Manager, S. ~ohen & Associates" McLean, VA(1996- prese~t)
Directs projects concerned with radioactive and hazardous waste management and disposal , decommissioning ofnuclear facUities, risk as~es$men~, regul?tory impact' assessment, and' fissile materials: management anddispositipn.

President, The Bartlett"Company, Vienna, VA. (1993~1996)
Provided technical and management support consulting ~ervices to government , agencies aod, the private sector. Services to, clients includ~d:, technical support'
to development
of

. wastes; anaiyses .of alternative technolO'gies for "treatment of h~ardous and radioactiya wastes in the Department of Energy complex; analysis of options for manage.ment and disposition of fissile, materials from dismantled ' nuclear weapons; analyses of alternative technologies for packaging and transport of hazardous materials; development of a conceptual design and imph3mentation

regulations for management

and: disposal of radioactive

plan for an development , of a

international repository for disposal

of

methodology

Development of energy r'esour~s.

for selecting methods for Sustainable

radioactive wastes; and

. 1993)
Director, Office , Department of

Sentor Consultant , Golder Associates, Inc., RockviUe, MD. (January-August

participated in busin'ess development activities for programs concerning energy supply, environmental restoration. and radioactive waste management for private

sector clients in other nations.
Civilian Radioactive Waste Management (OCRWM), U.

of

Energy. (1990-1993)

Executive Schedule Level IV

has responsibility for the U. S. program for management and disposal of commercial spent nuclear fuel and defense high-level radioactive wastes. Program activities under the Director's cognizance include technical

Nominated by President Bush and confirmed by the U. S. Senate. The OCRWM

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John W. Bartlett , Page 2

characterization of the ca"di~ate Yucca Mountain ~ite ' and determination' of its
central facility

suitability as a location for disposal; siting, design. licensing. and operation of a for stQrag~ ~.f commercial spent nuclear fuel; , design , of waste packages and the engineered' repository; ' and selection and design of the technology and operational system for transport of waste materials.
Work ~ctivities in this service included agency and national policy. development:

budg~tdevelopment: progr~ strategy development: interagency, international, intergovernmental, and . Congressional interactions: ' representation to

"

co.nstituencies;'staff and ' Contractor direction; and technical leadership of program actiyiti es. , , Respq.nsib ilities , invo lved sub~tantive parti~ipatio~, in en~.rgy, envlronmental , regO1ato ry, ~conoml~, and national defense Issues of concern to '

administra~ion agencies and the U. S. Congress. - The OCRWM has an annual.
$4bO millio

, budget of abOut

and involves the services qf over 3000' personneL, '

: The technical fu nctions in the program span approximately 25 engineering and

ientific disciplines.
Director of ' Energy ,~and En.vironment Programs, The Analytic Sciences

:79

, Coi'poration, Reading~: Ml~~ j1978-

1990)

Responsible 'fot management , technical direction, and business deyelopment for projects within cognizance. Clients included Federal Government agencies such as the U. S. Nuclear Regulatory Commission , the Department of Energy, and the
, Department of
, the Edison

Defense; state agencies: and private sector organizations such

Electric Institute and the , Electric Power Research Institute. Topics of

work included waste management program development. regulatory compliance.
risk assessment , and technical 'systems integration. Accomplishments included significant business,expansion , high proposal win rates. and client retention.

Program Manager, Pacific Northwest laboratories, Richland,

WA. (1968-

1978)
Management positions and busjness development activities in chemical
technology and radioactive waste management. Led development of the first
computer code for prediction of nuclide transport from a geological waste

repository, and directed preparation of ERDA- 76-43, , a five-volume document which was the first cOmprehensive compilation of alternative , technolOgies for
radioactive waste management. Authored or co-authored numerous papers and presentations concerning waste management program strategies and technical activities. Served as consultant to the International Atomic EnergyAgency. presented testimony to Congress . and participated in founding of the Pacific Basin Conference for the nuclear fuel cycle. While at PNL served as Adjunct
Professor of the

courses such a5tran~port' phenomena althe JointCenter1or GraduateStt.1dy~ '

University of Washington , teaching engineering curriculum

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John W. Bartlett. Page 3

Presidential Exchange Exe'cutlve~: National Bureau
Gaithersburg. MD. , (1973'1974)

of

Standards,

00 leave from Battelle. served 'a$ ,seoior. st~ff ,officer. to the Dir~tor oJ the Cent~ for Radiation Research in the National ,Bureau' of Stand~rds (now th~ NatioriSJ Institute f()r Science and Technology)~ Developed the plan for what becam~ the NBS program in nuclear safeguards. Had significant participation in budget and

program

development for NBS.

Fulbright Professor of Nuclear Engineering. Istanbul Technical University. Istanbul , Turkey. (1968,

1969) .

Taught courses in nuclear' ~ngineerfng ' aod atomic phy~ics . d irected studen
,

text on nuclear engineering. Assisted, the Director of the Nuclear institute ' in , development of Turkeys national nudear power program. Participated in a

research projects, and developed thech~pter on thermal- hydraulibs for a Turki$h

NASA technology transfer program whi~h)!1volved travel ~hroughout the n~tion , describing the U. S. space program- qncf itS".te~hnical applications; Stimulated and . ' evaluated research propos~I~. ~

Assistant Professor, Chemical Engineering Departrt1ent. The University
Rochester, Rochester, NY. (1962-

1968) '

Taught courses in the chemical engineering curriculum, directed and taught the nuclear engineering program , directed M. S. and Ph. D. theses, and served as consultant to various clients. ~e'ected for participation iAthe Summer VIsiting Professor Program of the U. S. Atomic Energy Commission at the Hanford Site in Richland , WA. Initiated collaborative research with the School of Medicine which introduced concepts of chemical system, function. and modeling to researbh on diabetes. This work began use of innovative strategies for diabetes research and was at the forefront of bioengineering research at the time.

Staff Engineer. Knolls Atomic Power Laboratory, Schenectady, NY. (1957Project engineer with the D1G ProjeCt , which designed and 'built the prototype for

1~

the first nuclear- powered

Bainbridge prototype. The work on corrosion product transport became the basis for subsequent research and development program~, ~n t~e United States and

Canada.

surface ship. Developed mathematical models for activation and transport of radioactive corrosion products in nuclear reactor coolant systems, and participated in design and test engineering for the USS

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John W. Bartlett , Page 4
EDUCATION
University of Rochester, Rochester, NY
B. ' S.

in Chemical Engineering, 1

Resselaer Polytechnic Institute, Troy, NY

Master of Chemical Engineering, 1959

Rensselaer Polyt~hnic Institute, Troy, NY , phD , Chemical Engineering, 1962
Burlington High School , Burlington , NJ; Diploma 1953.

Valedictorian.
HONORS, AwARDS; AND PROFESSIONAL ACTIVITIES
. Bausch and Lomb Scholar. Elected ,to Sigma Xi and Phi Lambqa Upsilon.

Reclpienf' of s everal

research grants while at the

, Numerous technical pub

lications.

University of Rochester.

" Member of "the American Institute of Chemical Engineers~ the American Nuclear Society, and the American Association for the Advan cement of Science. , In the two terms of service' on the Executive to American Nuclear Society was elected

Committee of the Fuel Cycle and Waste Management Division, served as Chairman of the Niagara~Finger Lakes Section , and Director for the NiagaraFinger Lakes and Northeast Sections. ' Participates extensively in technical paper " reviews and service as session 9hairman in ANS conferences.

Received, from the Nuclear Division of the AIChE, the Robert E.. Wilson Award fQr leadership in nuclear chemical engineering.
Usted in Who s Who in America.
CIVIC SERVICE
Twice 'elected to the City Council of Richland, Washington, and served one term as Mayor Pro-Tem. Also was elected to two terms on the Richland School Board . and served on the Richland Community Concert Board. Served three- terms on

, community responsibility for implementation of wetland protection statutes. Also ' served as member and Director of Rotary International clubs in Richland and

the Conservation Commission of Lynnfield. Massachusetts, which has

Lynnfield

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John W. Bartlett . Page
PERSONAL .",FORMA TlON
Born October 18.

5''

1935. Camden . NJ. US Citizen
Preference

No Veterans'

Highest Federal Employment: Executive Schedule IV Security Clearances:, SCI. '000 Top Secret, DOE "

:iD

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Case 1:98-cv-00126-JFM

Document 792-3

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IN ~,QNITED STATES COURT OF FEDERAL CLAIMS
Y ANKBE A TO MI C ELECTRIC COMPANY

Plaintiff,
v. '

No. 98..126 C (Senior Judge Merow)

UNITED STATES OF AMERICA
Defendant.

FRANK C. ORA vES EXPERT WITNESS REPORT

INTRODUCTION

Ihave been asked to prepare this report to address the performance of the United States Department spent fUel") under of Energy (DOE) in accepting spent nuclear fuel and high-level waste (together, "

the terms ofits contract with the Plaintiff, Yankee Atomic Electric

Company. This contract is one

of approximately 50 similar contracts (each sometimes referred to as a Standard Contract) between
the govenu'nent and commercial nuclear power producers ePurchasers

Due to the government' s failure to commence acceptance of spent fuel by January 31

, 1998, the

Plaintiff is incurring and will continue to incur economic damages. The damages are equal to the

costs the Plaintiff a~tually incurs, in excess of the costs that would have

b~:;~ incurred had the

government commenced and continued acceptance in accordance with its contract obligations.

To,

quantify this difference , cost models must be constructed that describe the Plaintiff's economic
operations in a Non-Breach World (a calculated world in which fhe government honors its contract s contract ' obligations) and in the Breach World (the actual world , in which the government'

obligations are not fulfilled).

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. The Plaintiff's costS are heavily lnt1uenced by the timing oCtile completion of spent fuel removal

nom its site. The ' conti:a'ct does not specify the date by which the government was requited to
. . complete removal of
spen~

fuelftom Plaintiff's site. The purpose of my repo~ ~ to determine : the

'date of cOmpletion of spent fuel removalftom the Plaintiff's site~ had the govenitneilt commenced

, spent fuel acceptance b). Janua..')' 31 , 1998. In order to' do this, I applied, econo~cprinciplesand

. cost evaluati ~n tools to c1uu:acterize what the government' s performance in this Non-Breach World
would ha~e looked like and how it would and should have operated. Based on this, I determined the .

.date on. which the government would and' should have completed removing the spent fue~ ftom the

. Plaintiff's site pursuant.to the parties ' contract I also endeavored, to the extent ' possible
understand the spent fuel removal schedule in the Breach World.

The key results of my analysis are. the timing of spent fuel removal at Plaintiffs

facility and

the net

cost of swaps

i. e.

the cost to buy acceptan~ allocations (or "slots") to alter a Purchaser s position.

in the acceptance queue (as discussed later). These results , in turn, affect the timing and in some

cases the magnitude of spent fuel storage and (\ther costs at Plaintiff's facility. Accordingly, my
results are incorporated into the cost models that provide the basis for the damages calculation in the

expert report of Dr. Kenneth T. Wise.

II.

SUMMARY OF ApPROACHANOREsULTS

My analysis of DOE' s spent fuel acceptance program consists of two parts: 1) an assessment ora
reasonable aggregate acceptance rate for DOE' s acceptance of spent fuel from all Purchasers; and
2) given this aggregate acceptance rate, detennination of the sequence in which spent fuel would be
removed from indiv~dual plants ~ This basic structure applies in principle to analysis of both the NonBreach and Breach Worlds.

Under the contract , the government has provided for an initial ~lIocation of spent fuel acceptance

rights , or "slots " depending on the date of the discharge of spent fuel from each Purchaser s reactor.
This initial allocation is frequently referred to as "Oldest Fuel First " or "OFF. " The contract states

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that sWaps of acceptance slots within the OFF queu~ are allowed. By this mechanism, plant owners

, may voluntarily exchange removal slots among themselves (subject to DOE approval), for a

. m~ly-agreed price.
Because of the possibility of swaps of acceptance slots among PurchaSers, it is essential to draw a
distinction between the initial allocation of acceptance slots .and the actual' sequence of spent fuel
accq1tance that would occUr~ SincePurchaser;s are able to exchange acceptance slots, aPurc~t initi81 acceptance 81location need not detennine the schedul~ofremoval at.itsfaciUty. B~ buying

and/or selling acceptance slots, a different position in the sequence could be arranged.: Swaps of
acceptance slots would allow Purchasers (and not insignit!cantly, DOE also) to realize subsUuitial
savings in cost and efficiency as compared with the initial allocation of acceptance slots under OFF.

The costs associated with buying and/or selling acceptmice slots are detennined and accounted for

. in my analysis.

I model the perfennance of a market for acceptance slots, in which eac~participantpursues its own

economic interest in swapping slots. The market would include payments for swaps, and earl~er
acceptance slots would in general be more valuable than later slots. For example , a Purchaser who
, swaps away

later acceptance slots in exchange for earlier slots would have to pay for the exchange.

The Purchaser would be willing to pay for this swap because the cost of the swap pa)'ment is less
than the storage costs it would incur by waiting until a later date for the government to remove spent
fuel. Similarly, a different

Purchaser with less urgent need for spent fuel removal would be willing
as

to relinquish its earlier slots in exchange for later slots , because the payment received is atleast

great as the storage cost incurred by waiting until the later date.

My analysis shows that in the Non- Breach World , ha~ DOE commenced acceptance of spent fuel,
by Janumy 31 , 1998 with a reasonable aggregat~ acc~ptance rate, it should ' ~d would

have

completed 'removal of spent fuel from Plaintifrs facility by Jpnuary 1999. In order to achieve

removal by this date, Plaintiff would need to swap removal slots with other Purchasers, and these

swaps would occur at a price. The estimated net cost of the swaps required for the Plaintiff to
achieve this removal date is $11.8 million , in 1999 present value. Thatis , Yankee Atomic would

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pay a net cost of $11. 8 million to exchange its initial OFF ,allOCAtion

of sl~ts for the slots

needed to .

remove all ofits spent fuel by January 1999. The economic foundations for swaps are discussed in
d~tail in Section IV.

Even though it did not occur, efficient government performance in theNon~Breach'Vor1d is easier to describe and evaluate than is DOE' s future performance in the Breach World. m the Breach
, :World, it is Ilot possible to estimate with confiden~ the date by which DOE will complete spent fuel'

~ovalnom Plaintiff's facility. This is
, is the

primarily becaUse of ~igi1ificiuit, cUtrentlY:Unresolvablc

uncertainty in DOE' s future actual perforinance~ ; The mostobvious missing fact iit the B~c~ World

rate at which spent fuel will be accep~ed.particuIarly !he start date of acceptance. In addition

to this uncertainty (and partly because of it), it is much harder to characterize with,corifidenee how acceptance slots may be traded , if at all , and thus what the cost 'arid availability might be for Swaps.
, These difficulties are explored further after the discussion of the more straightforward Non-Br~ch
. World.

In forming my opinions , I rely on data input and facts nom available docUmentary evidence and
expert opinion from other witnesses. I have considered the expert witness report of JohnW. Bartlett, .

, former Director of the Office of Civilian Radioactive Waste Management, for howthegoveriunent
. should and

would have structured its spent fuel acceptance program. In particular, I rely on Dr.

: Bartlett' s expertise and experience to determine the overall acceptance rate for efficient performance.

, Documentary evidence in the form of DOE publications also supports this acceptance rate. The
amount and timing of spent fuel generated' and stored by each Purchaser also affects the demand for
, spent fuel acceptance and the removal date of any_particular Purchaser. James P. Malone ofNAC

International has provided information on spent nuclear fuel inventory and projected discharges. I:
rely for Purchasers '

spent fuel storage capacity on parameters taken from DOE' s

most recent

published study on this topic. ' As discussed later , the cost of spent fuel storage ' at the Purchasers

facilities also affects removaL Data on storage cost has been supplied by Mr~ Malone. I also rely
on the expert witness report ofIvan F. Stuart ofNACInternational to establish parameters
0"-

describing

SpentPuel-Slorage Requirements 1994- 2041 U:S. -DOE_ :hl"", ' 1-995.

Annendi;c A.

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