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

Case 1:98-cv-00126-JFM

Document 792-2

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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.

APPENDIX TO
IN LIMINE TO EXCLUDE EXPERT TESTIMONY OF DR. JOHN BARTLETT
YANKEE ATOMIC'S OPPOSITION TO MOTION

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 L. Shapiro
Peter J. Skalaban , Jr.

SPRIGGS & HOLLINGSWORTH
April 16 ,

2004

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INDEX TO APPENDIX

Description

Pa2e

John W. Bartlett Expert Witness Report................................................................................ 0001
Frank C. Graves Expert Witness Report................................................................................ 0023
Ivan F. Stuart Expert Witness Report ........................................................ ............................ 0070

Dr. John Bartlett Deposition Transcript (8/26/03 8/27/03) (Excerpts) ................................. 1000

Victor Trebules Deposition Transcript (4/19/02) (Excerpts) ................................................ 1050
Lake H. Barrett Deposition Transcript (4/22/02) (Excerpts) ................................................. 1053

Susan Klein Deposition Transcript (4/24/02 , 4/25/02) (Excerpts) ........................................ 1056
Alan Brownstein Deposition Transcript (4/11/02) (Excerpts) ............................................... 1071

Billy M. Cole Deposition Transcript (3/13/02) (Excerpts) .................................................... 1078

Dr. John W. Bartlett Deposition Transcript (8/26/03 8/27/03)............................................. 1082
Lake H. Barrett Deposition Transcript (5/14/02) (Excerpts) ................................................. 1091

Letter from Goodman (TRW) to Milner (DOE) with attached " ACR Issues Status Report - December 31 , 1991 " of 1/6/92 ........................................................ 2000
Memorandum from Morgan to Hodel ,
of 4/8/83...................................................

2003

Letter from Dreyfus (DOE) to Kadak (Yankee Atomic), of9/28/95.............. ............ .. 2013 Nuclear Waste Fund Fee Adequacy: An Assessment , of7/84 (Excerpts).................... .. 2014
Mission Plan for the Civilian Radioactive Waste Management Program , Volume 1 of 6/85 (Excerpts) ........

20 19

Report on Financing the Disposal of Commercial Spent Nuclear Fuel and Processed High- Level Radioactive Waste " of6/83 (Excerpts)..................................... 2024 Fiscal Implications of a 1-millkwh Waste Management Fee , of 12/82 (Excerpts)........... . 2027
Projected Costs for Mined Geologic Repositories for Disposal of Commercial Nuclear Waste , of 12/82 (Excerpts) ............................ ........ ............................. ........ .. 2029

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Throughput Rate Study .......................................................................................................... 2035
Letter from Kearney (EEl) to Morgan (DOE) - March 7 , 1983............................................ 2041

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Case 1:98-cv-00126-JFM

Document 792-2

IN THE UNITED STATES COURT, OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY:,

Plaintiff,
No. 98- 126

C (Senior Judge Merow)

UNITED STATES OF AMERICA,
0.

Defendant
0 ,
'.' 0

JOHN W; BARTLETT EXPERT WBNESS REPORT

, This report addresses plaintiff's contract with' the Department of Energy ("DO En) for the
disposal ~f.s~e~t

nuclear fuel ,and ~gh-Ie~el. ra~?active ~aste (togeth~r "sp,ent fuel" ' Th.~

parties ' contract is , one of approximately 50 such contracts with essentially the same terms between the government and commerchil nuclear utilities~ The basic contract form is frequently

referred to as a Standard Contract
I am aware that the Court has held that the government breached plaintiff's contract by
not beginnin~ to dispose of plaintiff's spent fuel by January 31, 1998. The contract does not

specify either the pace at which DOE would accept spent fuel from commercial nuclear reactors

or the sequence in which DOE was supposed to be accepting plaintiff's spent fuel after DOE..

commenced its acceptance of spent fuel not later than Januaty 31, 1998. I have been asked to
present my opinions on what the pr '

ace and schedule should have and would have been had

the government not breached its obligation to start aeceptilig spent fuel by January 31 , 1998.

This report presents those opinions and my basis therefor together withthe
ca1ledfor in Fed. R. Civ. P. 26(a)(2)(B).

other information

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J'

Opinions to be ExPressed and the B~is Therefor.
I offer the folJ~wing pOints ~
the opinions

to which I ,expect to testifY at the trial ~fthis

matter. I am outlining my , reasoning for reaching my conclUsions along with the conclusions
themselves. In addition, my opinioris' are based on my mmy years of experience in the field of.

spent fuel management (mcluding three years as director of the Office of Civilian Radioactive

Waste Management(" OCR WM") in DOE) and my review of relevant documents.
My principle opinions ar;e :as foltows:

(1)

Had the government not breached its contract, it would have reasonably ramped

up to the acceptance of3, OOO

Metric

Tonnes of Uranium ("MTU") per year of

spent fuel fro~ ~n~ct4tg utilities.

"i

(2)

Had the govei'nine~t not breached its contract, it would have followed a spent fuel

, a~ptance sc~e~ute: that would have taken advantage of swaps of acceptance slots
C;'

and acceptance campaigns.

Pace' of-Spent Fuel Acceptance

The pace of spent fuel acceptance should be efficient .

In particular, the

pace should
This total

, generally minimize the total cost to utilities of storing and disposing of spent fue1.2

. The parties ' actiwties under the Standard Contracts must be conducted in a safe manner. My opinions fully take tillS requirement into aCCQUi1t.

" 2, The government has recently analyzed altemativ.e approaches to performing its
.i

obligations under the Standard Contracts that focus on certain aspects of cost minimizationthat are similar to those presented in my report here. See Civilian Radioactive Waste Management Revision 02 System Modular Design/Construction and Operation Options Report, (December 18 , 1998) (" Operation Options Report"). The government' s report refers to the total cost to utilities as the "total societal costs. Id at xii and 9- 14. As noted below, a complete list of documents I have considered is attached to this report.

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, 1

cost can be divided into three parts. One is the program cost - the sum of the fees each

contracting utility

or will pay to the government for the services specified in the ~tandard

. Contracts. , A second is at-reactor spent fuel storage costs - the sum of the costs each contracting

utility haS or will incur storing spent fuel prior t~ it being accepted by the government. , A third is

loading costs - the sum of the ~sts
, :casks provided

each contracting

utility will mcur loading spent fuel into

by the government purSuant.

to the Standard Contracts for transport to a

goven1nlent fac~~ity.

0"'

The government should minimize these total;costs to utilities because the Standard

Contracts are "full cost recovery" contracts.3 , The full Cost recOvery structure of the Standard
Contracts e~ures that the cost of providing the services, specified in the standard contract is not a

" burden for the government because the government may and has passed all of~ese costs on to

contracting utilities. The full cost recovery structure of the Standard Contracts has , thus~
' provided the government with the flexibilitY to do whatever has been necessary in order to

perfonn its contract obligations in an efficient, cost-effective manner so as to minimize the total

costs to utilities. DOE has long recognized
1 "

the desirabilityofperformiIig

its contractual

See

Plaintiffs contract fourth

Mission Plan,

whereas paragraph and Art. VIII. A.4;see defining " full cost recovery " at 423.

also

1985

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obligations in a cost-effective manner.4 DOE has also recognized the desirability of reducing

utilities' at.;.reactor spent fuel storage costs.
Sufficient,to Accept "MUSt-Move Fuel"
CommerCial rtuclear reactors in the United States were designed to temporarily store '

spent fuel

, c

'wet, " in

pools pending its removal from the plant site. In

this 81Ta11gement, spent

fuel is stored under water that provides shielding so that the radiatio~i from the spent fuel does
: . not

impact p~ple or ~e envir~Dment Spent fuel pools are equipped with racks that hold the

spent fuel. Given a particular rackamiIlgement,any particular pool can hold only a specified

amount of spent fuel. ' The operation of a spent fuel pool requires utilities to bear the labor

maintenance, security, management and other costs of running the pool. , This co~t does not vary,
si!Puficantly with the amount of spent fuel in the pool. The storage capacity of a spent fuel pool
~ be' iticreased to a limited extent, by "re-racking" the pool. In that process
addi~orni1 ra

~~ are

added to the spent fuel po olor

the existing racks are' replaced

With' ones having a

more

comp~ct '

.. See, e. Mission Planfor the C;\,ilian Radioactive Waste Managemeni !,rogram, DOEIRW-OOO5 (DOE June 1985) (" 1985 Mission Plan ) at 6 ("The progoun must be conducted"

in a cost-effective manner, with full cost recovery.

) and 15 (cc

The program must be conducted in

were being studied by eight criteria: (1) the total amount of waste accepted, (2) the 3,rnouitt of waste stored in repository surface facilities, (3) the number of shutdown reactor sites with empty pools , (4) the number of reactor sites where construction of new dry storage facilities could b~ avoided, (5) the nwnber of reactor site-years that spent fuel would remain at shutdown reactor pools , (6) utility costs for pos~shutdown storage anapool maintenance, (7) total system life cycle cost and (8) societal costs.
1985 Mission Plan at 18; T. W. Wood (pacific Northwest Laboratory), Spent Fuel Storage Requirements forNucleartJtilities and OCRWM, 2 High Level Waste
Management: Proceedings of the International Meeting at

a finanCially responsible, cost-effective manner and on the basis of full cost recovery. Operations Options Report at 9 (explaining that the effectiveness of yarioUs operations options

s See,

12, 1990.
-4

Las

Vegas, Nevada,

AprifTopical8-

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requires not onlytlte purchase of the new ra~ks but also significantlabor

involved in ih~. ~ation ~~, the new racks. In addition, an operating nuclear reactor should
have aspen~ ~el pool with sufficie~t

unused capacity to acco111Dlodate all of the spent fuel

currently in .the reactor its~if. This storage capacity is frequently referred to as a "full co

reserve~ capacity.
Commercial nuclear reactors can also store' spent nuclear fuel in "dry" fQrin. In this :
, arrangement, ,spent fuel i~ mo~ed from the spent fuel pool to containers which are designed to

keep' radiation from the spent fuel from reaching the atmosphere. ' These ' containers ' are costly to
purchase. 'In a~dition, the 'movement of spent fuel.from wet to dry storage is expensive, as it

entailS substantial labor costs. Once spent fuel is in dry, storage, however, the ongoing ~osts of a

ctrystorage facility for operations maintenance, labor~' s ~curity ~d other costs are sig~ficantly ,
, less tItan, those;

(,)f a spent fuel pool containing a similar ,amount of spent fuel.

A utility' s costofstorlng spent fueLcan rise precipitously in two events: (1) ifit is forced
to add to its at-reactor storage capacity because its spent fuel pool fills up, and (2) if it is forced
to extend at-reactor storage of spent fuel after its reactor permanently shuts down and all of the
spent fuel has "

cooled" for a period of time. Thus , utilities have an economic incentive to avoid

costs arising from either of these types of events. Additions to at-reactor storage cap~cities can
be made through re-racking, the creation of a dry storage facility or additions to an existing dry

storage facility

all of \$ich entail significant

cost 6

The amount of spent fuel that would

, trigger one of these events can be thought of as " Must-Move" fuel in the sense that the spent fuel

6 A utility could theoretically also add to its at~reactor
,i
another spent fuel

storage capacity by building pool. The large cost for the construction of such a facility, however, prevent

this from being an economically viable option. ....

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must be moved in order to avoid these sigIiificant additional costs. In the case of an operatitig

~r, Must-Mov~ fuel would be the ~Q.~~:~f spent fuel that would have to ~ moved from
, the reactor site in order to avoi(! the need to 'C!ithCf re-rack or create a diy storage facility

, generally the amount discharged ftom,th~,~~tor core when the spent fuel pool is full. ' Spent fuel must "cool'" in a spent fuel pool for a period of time after it is discharged from
~ the reactor and before it can, be moved intQjl~ontainer, mid
0,. '
stored "dry,"

out of the spent fuel

, pool. ' 11terefore, the spent fuel pool,
fuel from

be ' operated

after the date of the last discharge of spent '
has

t4e reactor into the sPeri~ ~el P991

~d until that period of t~e

elapsed~ ~ ~e case

, of a shut down reactor~ ~ntil that period has ' elapsed none of the spent fuel in the spent fuei p
constitutes Must-Move fuel, Afi.er th~ r.C;qm.~~~, pe.riod of time has elapsed
fro~

~e date of the

last disCharge into the spent ~e(-pool;'aIlo(m~, feactor s spent fuel constitUtes Must-Move fuel
sii1~ it. woul4 all have to be accepted, byJJqE in order to avoid all of the, additional ~osts

of

storing the spent fuel at the r~ctor sit~. Sin~ ~e S!&ndard Contracts call for spent fuel to
ordinarily cool in a spent fuel pool for at least five years before being accepted by DOE,? all of
the spent fuel in a shut down reactor' s speriffuel pool becomes Must-Move fuel ~ve years after,

the date when the last of that spent fuel is discharged from the reactor,
DOE' s spent fuel acceptance rate should accommodate as much of the utilities ' Must~

Move fuel as practicable given the full-performance capacity of the system. ,After a ramp-up to a

full-performance level, an efficient spent fuel acceptance rate should be relatively cOnstant

so

to make the fullest possible use of the spent fuel ,transportation and handling facilities developed

to receive spent fuel. An acceptance rate that does not accommodate as much of the utilities
See, e.

Plaintiff's contract , Appendix E, ,. B.3.

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Must-Move fuel as practicable would be inefficient in that it would impose avoidable costs for
, the at-reactor Sto
nq;e of spent fuel' ~n the ':1tilities that

co~d

avoided' In addi,tion, the spent, :

fuel acceptance rate should provide for the' acceptance of more than the minimum amount of
spent fuel necessary to accept aU Must-Move fuel anticipated in current projections. This buffer

amount of spent fuel acceptance is necessary to accommodate at least some unanticipated
inCreases in the need for spent fuel acceptance without increasing utilities ' spent fuel storage

co~ Indeed, DOE its~lfh8s long recognized the des~bility o~~lieving utilities ~fat-reac~or '
, spent fuel storage pressures, particularly around the time 'Of the 1998 date for the commencement

of government acceptance.

The amounts and locati?ns ofMust~Movefuel can be projected with reasonable certainty.
Nuclear ,power plants discharge spent fuel at a fairly predictable rate, Since 1990, nuclear power

plants have intqe aggregate been discharging appro~matety 1,000 MTU per year. This' ,
~ggregate annual discharge rate is expected 'to continue for at least the next fifteen years and then'

u decline as currently operating plants reach the end oftheirlicensed lives.9 In addition, the current

See

1985 Mission Plan at 28.

See, e. g., Spent Fuel Storage Requirements 1994 2042 DOFlR 0431 Rev. 1 (June 1995) (" 1995 Spent Fuel Storage Report") at 4.3. The goveg.ID1ent ~as published a similar report on roughly an annual basis from 1978 through 1995.

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capacity of each reactor s fuel pool is known. Also, the licensed life of each plant is known.
DOE has iong mad~ projeCtions of this sort itselt: II
, 2.

)Wnp Up
rate should not and would not include a long "ramp up" for spent fuel

The acceptance

acceptance between the CQminencement of spent fuel acceptance and the time when the

, acceptance rate reaches a reasonably efficient, full-perfonnance, level. Prior to the
January 3 1, 1998 co11\lI1e nc;ementdate,

required

DOE had more than fifteen years in which topl~ the

neCessary transp'?rtation and storage facilities $0 that DOE could work efficiently once
performance commenced. Moreover, the taSks at issue - moving spent fuel from reactor sites, ,
' transporting spent fu~l and placing it in a storage facility are very familiar to DOE and to the '

nuclear energy industry both in the United Sta~es and abroad. 12 Furthemiore, DOE could and

would have done all the necessary planning and construction work (of both storage facilities and
casks) to have been abl~ to have, started accepting spent fuel in 1998. Giyen this eXperience, the

government should not and would not need more than three years to attain an efficient full
pelformance acceptance rate.

Although a plant may apply to the government to extend its licensed life, only two utilities have initiated that process to date. Moreover, nuclear power plants baye limited lives due to thdrphysical structures and components. Therefore, it is reasonabie for purposes of projecting Must-Move fuel at permanently shut down reactors to assume that, on average currently operating reactors will be permanently shut-down at the end of their currently licensed

, 10

lives. "
, II

See, e.

1995 Spent Fuel Storage Report and preceding reports.

12 In addition to my own knowledge of this fact

report of Ivan Stuart as further support for this opinion.

, I have considered the expert witness

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DOE itselfhas recently specified a conservative ramp up for the spent fuel acceptance
tate in its listing of r.equirements for ~ Po.sslb~e , Centralized Interim Storage Facility ("CISF').

This type offacility is indicative ofihe ~~!D DOE should have and could.have developedt9
, ba~e rttet its obligation 'to ' begin accepting ~pent fuel by Janwuy 31 1998. '

Acceptance Rate Conclusion

An analysis of Must-Move fjIel cOnsJstentwith
ip' the ~xPeqwitness report

opinions 'noted above has been set

out

ofF~ C, Qfaves. This repoftishows that if DOE had started
OOO MTU

, accepting spent fuel in 1998 with areaso~able ramp up to.a,

per year spent fuel.

acceptance rate, DOE would have' been able to have eliminated the Must-Move fuel backlog

, , " ~thin approxi~ately four years after, I9.9.~,
$Ubsequently have been able 'to ~~Ye ~~~i~

~ I~

Mr. ~ves ' also shows tha~ DOE would
aU additional spent fuel as it attained Must-Move

'I,I ' ' '

Status. IS Hence, a reasonable ramp-tip ,to ' a ~,ooo MTU/year acceptance rate, as refIecte4 in Mr. :

Graves ' report, would , have been efficient~ ' This effiCient rate would have been the fate at ,

~ch

DOE would have accepted spent fuel. Therefore, the 3 000 MTUper year acceptance rate with a

13 See

Revision year) of

Civilian Radioactive Wasie Management System Requirements Document , DOEIRW-0406 (January 1999) at 13, Table 3, specifying a ramp up (in MTHM per 1200 , 1200 2000 2000 , 2700

, 3000. .
Frank C. Graves~

14 See Expert Witness
Report of

IS A 3 000 MTU per year annual spent fuel acceptance rate is also consistent with the fact'

, that nuclear reactors have been in the aggregate discharging approximately 2 000 MTU per year of spent fuel. The annual spent fuel acceptance rate must be greater than this aggregate annual

at-reactor fuel waiting for acceptance by DOE. spent
spent fuel discharge rate for DOE to have an ability to eliminate the backlog of

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ramp of 1200, 1200, 2000, 2000, 2700 is reasonable and appropriate for the purposes ofMr~
Graves' analysis~ 16 ,

B. '

Schedule for Soent Fuel Acceptance

, The schedule for DOE' s acceptance 'of spent fuel should be efficient .Th~ schedule

should permit and encourage minimization of utilities ' total costs of at-reactor storage and
payments for DOE' s spe,nt fuel program, With respect to utilities ' storage cOsts , the schedule
~1iould take i~t~, a~c~)\I1~t the

f~,~~t ~~t ~lpl~ts

hav~ C9sts .wiUcb' could

~e avoided if their

spent fuel were :a~epted by DOE. As explained above, a.JJtility' scosts of storirig spent ,fuel rise
precipitously if the utility is forced either to add at-reactor storage capacity or to extend at-reactor
. Storage mo~e than five years after its plant, ~ermanently shuts down. In other words, a utility'
' costs of storing spent fuel rise if it ' possesses Must-Move fuel. The schedule ' should 'permit and '

encourage plants facing these costs to avoi4 the costs, if possible, by have their, spent fue

~pted as soon as possible after the January 31, 1998commeBcement date for DOE's
;acceptance of spent fuel from utilities.
In addition, the schedule should be efficient in that it should permit and encoUrage
utilities to reduce their costs of delivering spent fuel to the government Plaintitrs
contract

requires plaintiff to load its spent fuel on to the transportation vehicles supplied by DOE-17 The
movement of spent fuel from a spent fuel pool to the transportation vehicles can be accomplished more efficiently and less expensively if it is done in campaigns in which relatively large volumes

approximations and do not contend that DOE would have accepted precisely these amounts of spent fuel each year.
17 See

16 I recognize that these acceptance rate numbers are

Plaintifrs , Art. IV.

(a).

It)

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of spent fuel are delivered at a time. 11

This efficiency

stems largely from the fact that the
~abor-intensive

movement of spent fuel from a' spent fuel pool is a de~ed,

P~. , The'

workers pedorming the necessary tasks can perf~rm
regularly rather than episodically.,

thC?m

more efficiently if they do them

A schedule that permits and encourages the use of campaigns is particularly advantageous
for operating plants. The movemen~ of spent fuel from a spent fuel pool at an operating plant can

be di~ptive

~f

the nomw electricity generation activities at the ~lantl~ This disruption

o~~

because the ' ~erSoiUiel that ~reqUired by government

regulation to be in~olved in the movement

of the spent fuel from the pool are the same personnel that are required for the' nonnal operations
,i

of the plant

For these reaso~s, the schedule

f,?r

spen~, PIel

acceptal\ce should perroit and ,

enco~ge utilities to organize their deliveries of spent fuel to DOE in a limited number
camp3igns~

Role of Spent Fuel Discharge Listing
Plaintiff's contract requires the government to list utilities ' spent fuel discharges from
' their respective reactors in the order in
tiQ1e in

which such discharges occurred as ~' an annual
The spent fuel

acceptance prioritY ranking" for receipt

of

spent fuel at the DOE repository.20

, discharged earliest is listed fll'st and is frequently referred to
, the government has taken the position that the appropriate schedule for its acceptance

~ the oldest fuel ' I understand that
of

spent

II In addition to my own knowledge of this fact, I have considered the expert witness
report of Ivan Stuart as ' further support for this opinion.
19 In
addition to my own knowledge of

report oflvan Stuart as further
20 See

support for this opinion.
Art IV. B.5. (a).

this fact, I have considered the expert witness

Plaintiffs Contract ,

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fuel ftom utilities would be the order shown in this listing. This sort of schedule is frequently
referred, to as oldest-fuel-first" or "OFF.

OFF would not be a reasonable schedule for the actual acceptance of spent fu~1. Part of

the problem With OFF -is apparent ftom a reView ~fthe government' s most recent combined
AnnUal Capacity Report and Annual Priority Report.21 This report includes a scheduling queue

applies the gov~mmept' s
list of spent fuel dis'clw:ges

stat~ami~ receiving capacity for spent mel.ftom utilities to the

~ged according to OFF. The schedUling queue consists of a

l~ting by a utility of ~e amount of spent fuel to be picked up from tpat utility i~each of the first
teqyears of the government' s acceptance of spent fuel from utilities.22 The OFF-based
schedul~g 9ueue would require that relatively small amounts of spent fuel be accepted from a

large n~ber of different plants each year, The scheduling queue does not take into account,
, whethe~

a. ut~lity has Must-~ove fuel. The scheduling queue w~uld not permit the use ~~

transportation campaigns. In fact; many of the annu8t allocatio~

to indiVidual

utlUtiesin the

OFF queue are so small that they do not even call for full containers of spent fuel to be used. For
these reasons , among others, the OFF queue does not represent a reasonable sche4ule for spent

fuel acceptance. In my opinion, DOE would and could not have followed an OFF schedule even'

ifit had commenced spent fuel acceptance by January 31, 1998.

1995).
21 See 22 Id

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

(March

at 6.

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