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

-Case 1:98-cv-00126-JFM Document 792-11 Filed 04/16/2004 Page 1 of 22

I don 't know or remember.

Okay.

No. 9 is a document authored by

J. W. Doman,

D-o-m-a-n, and

T. E. Tehan, T-e- h-a-n.

Had you ever seen this document before this

litigation?
Again, no.
What is it?

It talks about the option and

characteristics of. a
spent fuel from the

campaigned approach to taking

reactors, and it'

s a "think

piece" on how you would do that most
We I re

effectively.
deposition,
about

going to talk a little bit more

about campaigns a little later in your
but I just want to ask you while we

I re talking

this document, are shipment campaigns or transportation campaigns anything that you worked on

while you were director of OCRWM?

It'

s something we recognized as an ideal

option of running the

system.

Did you actually do any work toward

No.
transportation campaigns?

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actually the mission plan , and so these things would

be there available as a basis for some action, but

they were not - documents.

I wouldn't call them working

So going back then to this document on campaign shipments, when did there come about more
information about shipment campaigns so that it was

more than just a good idea and it could actually be

analyzed?
After our watch.

Do you have any idea when?

No.
Were you involved in that at all in

your -No.

- - consul ting

work?

Have you ever done any work in your career
on shipment campaigns, transportation campaigns?

No.

Okay.

No. 10 is the 1987 annual capacity

report.
Uh- huh.

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In a sense, yes.
,.I

Yes.

They are not meant

to commi t anybody.

They were not a basis for It was just widely

program action or anything.

recognized that this would be a very inefficient way
of doing things, and it would be far better to have
a system where you, well, frankly, campaigned and
made effective use of the resources of the

system;

but , at

the time it was all very qualitative, you

know, how should this system run, because it was

very premature to even think about those ~etails

because we didh I

t

have an MRS.

We didn't know what

it was going to look like or what the reactor fleet

17)
was going to do.

So really while you were director, you
didn I t

know one way or the other whether the OFF

method was going to happen?

That I S right.
Did you do any studies or anything while you were director, or were you responsible for any
studies as to whether the OFF system would work?
Specific studies, no.

General studies?
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for your opinion as to the proper pace?

The proper pace is a dependent factor

depending , on what the

situation is, and as a matter

of fact, from the late, middle

'80s when they

started doing these studies like Wood I S, on through

to , this

day, the circumstance that existed at any

point in time has changed.

It I S been a constant

evolution of rate of production of spent fuel, the

ability of the, reactors to accommodate storage on site. So all you can do at any given time is make
assumptions and use the existing data at that point
in time as a basis for saying what would be

appropriate or proper to achieve your

goal.

So the proper pace changes with time?

The definition of proper depends on the

system - - or
given time.

the circumstance of the system at any

That' s right.

So when you offer your opinion as to the

proper pace in this report, what is that based upon?
What are the circumstances that you base that
opinion on?

MR. SHAPIRO:

Objection.
01032

Vague.
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THE WITNESS:

The definition - -

or

explicitness of proper would depend on when you were
looking at the system, what the circumstances were.
BY MS. HERRMANN

And I I m trying to find ou t what the
circumstances were when you, nr. Bartlett, looked at
the system and decided that this was the proper

pace.
Proper pace would have gone with the
circumstances of the system while I was director,

but we did not investigate that to any detail

because, again, as I said, we could not

implement.

These kinds of issues were backburner all the way.,

Sure.
We had a shelf full of these theoretical
studies, if you will.

We had a changing dYnamic in

the. reactor system,

and we had no place and no way

to accept spent fuel, no place to take it and no

way - - so there I s no specific
20 '

proper as much as

there is an appropriate strategy to meet the goal of

servicing shutdown reactors and not forcing shutdown
of operating reactors.

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they'
, I

re discharging fuel at a rate of 2, 000 tons per

year for the fleet.

Some reactors, for one reason

or another; ar~ being forced into having dry storage

capability because their pools are

full.

What do' you mean by fleet?
All reactors in the United States.
I s ee.

Our inventory of reactors

operating

reactors.
So if the circumstances have changed since

you wrote th,is report, ' then

is the pace

that. you

12
~:~J

advocated in this report no longer the proper pace?
MR. SHAPIRO:

Objection.

Vague.

, BY MS. HERRMANN :
Do you understand what Il m asking?
I understand what you

I re asking.

You can

set

a goal of a rate, a pace of receipt and

implement it for the circumstance that

you face.

I understand that you can set a goal, but

can , you determine that one particular pace is the
right pace?
MR. SHAPIRO:

Objection.

Vague.
173

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BY MS. HERRMANN
J: I m

sorry.

The proper pace.

I want to

use your terminology.
A.
Uh- huh.
Do you understand my question?

You can determine for a circumstance what

, a proper pace would be.
But it wouldnlt be the only proper pace?

That I S right.
I see.

Okay.

So then how did ,

you go

abO1,1t ' choosing this particular pace as the proper

one that you would write about in this report?

That was the case or system of record at
that time that would be appropriate. At what time?
, 16

Early I 90s.
When you we~e director?

Uh'-huh.

And it was also consistent with

what appeared to be the feasibility of getting the

sys tem running.
, 21

So it'

s an event.

Okay.

But from what you'

re telling me

that there could be more than one proper pace, there

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could have been other paces at that time when you
were director?

Could be.

That' s right.

And they would have been correct also?

Uh- huh.

Okay.
As you go through some of the

documentation for the past decade or so, you'll find
in different documents DOE has set different targets
for a ramp-up rate and a

pace.

They generally stuck

with 3, 000

as the ultimate fully implemented

system,

and the reason for that is that'

s. as fast

as you can

put it in a repository.

And so that' s a constraint

on the sys tem .

How fast you go from when you start

to 3, 000 is adjustable depending on system

need,

depending on your ability to produce the casks of

the system, et cetera.
You mentioned that DOE has had different

goals, set different targets -At different times in different documents

they'

ve assumed different ramp- up rates and

different start

rates.
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CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC

I, Virlana Kardash, Registered Professional Reporter and a

Notary Public in and for the DiStrict of Columbia, before

whom the foregoing proceedings were taken, do hereby certify
that the witness whose testimony appears in the foregoing

pages was duly sworn by me; that the testimony of said

wi tness was taken by me stenographically at the time and
place noted in the caption hereof and thereafter reduced to

computer- aided

transcription by me; that the foregoing

transcript is a true and correct record of the

proceedings;

and that I am neither counsel for, related to, nor employed

by any of the parties to this case and have no
financial or otherwise, in the outcome of the

interest,
action.

Virlana Kardash, RPR, CSR
Notary Public in and for The District of Columbia

f/ML

My commission expires:
June 30, 2006

01037

"'~""""" " -,""

,,

-IN THE U. S
.

, ', :, :\~~\) ~~ &,
Document 792-11 Filed 04/16/2004 Page 10 of 22
COURT OF FEDERAL CLAIMS

, "

Case 1:98-cv-00126-JFM

----------"--x
YANKEE ATOMIC ELECTRIC CO.
MAINE YANKEE ATOMIC POWER CO.
CONNECTICU'1' YANKEE ATOMIC POWER \)

CO.,

Plaintiffs:
vs.
UNITED STATES OF AMERICA

: No. 98

-126C

98-474C 98-154C

Defendant.

, Washington ,

D. C.

Wednesday, August 27, 2003

Continued Deposition of:
DR . JOHN, BARTLETT

called for examination by counsel for the
defendant

pur suant

to notice and agreement

commencing at 9:30 a. m., at Department of Justice

1100 L Street N. W.,

before Virlana Kardash,

RPR,

CSR , a Notary Public in and for the District of

Columbia, when were present on behalf of the

respecti ve parties:
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Okay.

And I'
I have a

looked

at all of

them.
for you,

couple questions

then.

So let me take them one at a

time.

No.

, are you saying

that the number 3, 000 MTU can be

accepted as the repository; does that number
change over time?

No, no.
Okay.

That number doesn't change
s the baseline parameter.

significantly. That'
assessment.

You mentioned the 198 viability

Is that now outdated, then?

Very much so.
Okay.

Totally.
Is the spent fuel storage document

that I s listed

here at No. 5 outdated?

Probably.
Is there any document that you relied

upon for your 3, 000
outdated?

MTU number that is not

MR. SHAPIRO:
THE WITNESS:

Obj ection.

Vague.

I don' t know.
315

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They come

and see me.

Did you ever
No.

send a letter?

Did you ever have any
,5

wri t ten

communication with the utilities to that effect?
On this issue?

Yes.
No.

Okay.
The utilities were typically

represented by the Nuclear Energy

Institute.

They

would come visit periodically, check on the status
of the program.

The utilities had an organization

called American Committee on RAD Waste Disposal,
composed of CEOs of major nuclear utilities.

I would meet with them periodically, tell

them the status of the programi so there was

understanding on their part constantly of where

the program stood and where the effort

stood.

Okay.

I . m back on page 8

now. The

very last sentence on that page is, "Given this
experience, the government should not and would

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Uh- huh.
That looks, to, me like a five- year

ramp-up.
That I s what it counts to, yes.
So here is my question.

On this page

you seem to be talking about a three- year ramp-up,

and on that page, you seem to be talking about a
five~year ramp-up.

Which ramp-up period are you expressing your
expert opinion that DOE should actually use?
MR. SHAPIRO:
THE WITNESS:
Mr .

Obj ection.
They I re

Vague.

both possible.

Graves chose that analysis; that'

s feasible, I

think.
BY MS. HERRMANN

So you' re not giving us an expert
opinion that one is more proper than the other?

No.

m just saying

that, it I S feasible
response, but

to do it in three years with market

you could choose something

different, like

Mr., Graves did.
Would it also be feasible to do it in

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seven years?

Certainly.
Or ten years or any other number?

Yes.
Did you expert opinion go any further

than that -No. '
as to choosing one?

No.
MR. SHAPIRO:

Obj ection.

Vague.

BY MS. HERRMANN

Okay.
" , 1,

You I re not advocating one

ramp-up -. A

No.
You understand my question; right?

Yes.
, 17

And the answer is

no.

:Is it your opinion that DOE is

obligated to ' any

given ramp-up?

MR. SHAPIRO: THE WITNESS:

Obj ection.

Vague.

No.

BY MS. HERRMANN

The standard contract doesn

I t require

a
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acceptance slots?

No.

We addressed it as a strategy for

the operation of the

system.

Have you ever talked to any CEO of any
utility who was interested 1n exchanging so that
they could get a later acceptance slot?

Not specifically on that subject, no.
Do you know whether any utilities have
ever attempted to exchange acceptance slots?

No.
When you were director of OCRWM, were
you confident that DOE

perfo~ance was predictable
Obj ection.

enough that - an exchange market could be viable?
MR. SHAPIRO:

Vague.

BY MS. HERRMANN

Do you understand my question?

I can't answer

that.

Conf i denc e ?
The short answer

There was too much uncertainty.

is no, but there are many factors in

that.

Okay.
little bit.

Let me explore those factors a

So there was uncertainty in when DOE'

would be performing?

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There still

is.

Okay.
all here.

I guess that' s kind of why we'

Was there also uncertainty as to when

the acceptance slots would happen?
MR. SHAPIRO:
THE WITNESS:

Objection.

Vague.
Tha tI

I don t know.

s at

a level I did not

address.

BY MS. HERRMANN:

So do you know, one way or the

other,

whether the utilities had something concrete they
could count on to exchange?
MR. SHAPIRO:
.-I

Objection.

Vague.

THE WITNESS:

I do not know.

BY MS. HERRMANN

Okay.

But you understand my question?

Yes, I understand the
not know.

question.

I do

Okay.

Did you analyze that as part

your report?
No.

Okay.

Do you know

of

any issues that

would make exchanges inefficient?
:'t~J!

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Okay.

In the exchange sys tem, as you

understand it,
first of all?

the exchange system that is

provided in the contract -- is that clear to you,
When I talk about exchanges as it

is provided in the contract, Il m talking about the
contracts provision on exchanges that we I ve talked

about.
Yes.

Yes.

On page 11 or whatever it

is.
Okay.
I don

I t want

to go further if

nobody is following me.

As you unders tand that

provision, would partial exchanges be allowed?
MR. SHAPIRO:

Obj ection.

Vague.

BY MS. HERRMANN

Let me explain myself.

:In other words,

say, would a utility be allowed to trade lO MTUs
of its 20 MTU allocation?
MR. SHAPIRO:

Obj ection.

Vague.

BY MS. HERRMANN

Do you

unders tand

my question?

don't know.

understand the

question.

don't know.
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-Case 1:98-cv-00126-JFM Document 792-11 Filed 04/16/2004 Page 18 of 22

Under your system of exchanges as you
, .I

advocate it should happen, would a utility be
allowed to have such a partial exchange?

,A

Yes.
Okay.
Under the exchange provision in do you know whether

the contract as it I s. written,
bilateral?
that I S all?
MR. SHAPIRO: THE WITNESS:

exchanges would be pair-wise; in other words,

One utility with one utility, and

~bj ection.

Vague.

I doni t know, and that I s

hard - -

I couldn't even guess.
BY MS. HERRMANN

And under your system of exchanges that

you present in your expert report, would all
16 '

utilities

, would all

exchanges be pair-wise,

just one utility and one utility?

Not necessarily.
So they could be between several

utilities?
Yes.
Do you know whether the contract allows

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, 1

know.

Okay.

Would the time that it took to

approve or disapprove exchanges affect the
incentive to trade?
MR. SHAPIRO:

Obj ection.

Vague.

THE WITNESS: ' I don't know.
BY MS. HERRMANN

If a utility had an approved delivery
commitment schedule, would you agree that it
wouldn I t

want to exchange away its early slot in

order -- if that would cause it to incur avoidable
~t:

12 '

storage costs?
MR. SHAPIRO:
THE WITNESS:

.z

Objection.
Again, I don

Vague.
I t

know.

You

cannot -- my experience is that the utilities are so different in the driving forces for their
economic and business decisions that there' s just

no way of knowing except when you get into a
specific case and they bring to the table at the

time whatever their situation

is.

It might be driven by their PUC, for

example.

Many, many factors that they will have

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to make the decision on a case- by-case basis as to

whether or not they want to exchange, what wpuld

be involved as far as they' re

concerned.

All these factors are just -- you can
identify factors, but you certainly cannot proj

ect

them or make any assumptions about how they would

be implemented by any given utility at any
, 8

time.

BY MS. HERRMANN
You just can

I t know

how things would

ul timately happen?
You cannot know.

You cannot know.

Is there any relationship between your

opinion about exchanges and your opinion about the
efficient acceptance schedule?
MR. SHAPIRO:

Obj ection.

Vague.

BY MS. HERRMANN

Do you understand my question?
It is my expectation that having the

opportunity for a free market exchange situation
will make the system as operationally cost
effective as possible.

Okay.

Giving you a hypothetical.

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no exchanges were allowed, if it just was not
allowed by DOE, how would that change your opinion

about what an efficient acceptance schedule is, if
at all?

No, it doesn't.
MR. SHAPIRO:

Obj ection.

Vague.

BY MS. ' HERRMANN :
It doesn

I t change

your opinion?

No.
MS. HERRMANN

All right. Let' s

take a

break.
(Recess. )
BY MS. HERRMANN

Dr. Bartlett, I tell you what.

It'

five minutes to 4: 00

right now.

I think that it

would make for a much shorter and more efficient
day tomorrow if we were to break right now for me
to go through and clean up my notes and see what

has been missed and what we still have to go on to
rather than continue.
I think we' d have to continue on to tomorrow

anyway.

If we break now, assuming it' s all the

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CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC
I, Virlana Kardash, Registered Professional Reporter and a

Notary Public in and for the District of Columbia, before

whom the foregoing proceedings were taken, do hereby certify
that the witness whose testimony appears in the foregoing

pages was duly sworn by me; that the testimony of said

wi tness was taken by me stenographically at the time and
place noted in the caption her~of and thereafter reduced to

computer- aided

transcription by me; that the foregoing

transcript is a true and correct record of the

proceedings;

and that I am neither counsel for, related to, nor employed
by any of the parties to this case and have no
financial or otherwise, in the outcome of the

interest,
action.

Virlana Kardash, RPR, CSR
Notary Public in and for The District of Columbia

My commission expires:

June 30, 2006

01049