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

Case 1:98-cv-00126-JFM

Document 791-12

Filed 04/16/2004

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in this model.
to know.

That may be more than you wanted

Nol I think I followed
think I could give it

it.
it.

I don't

back to you as eloquently

as you did, but I think I followed

Do you know whether all of the

utili ties have
storage?

the same costs for the wet

m sure they don't.
Did you see any documentation of the
cost for wet storage in creating your model?

MR. SHAPIRO:
THE WITNESS:

Obj ect ion,

vague.

As a rule, I would

believe that is proprietary data to utilities who
are operating those plants, but we did have some

awareness of the cost that Connecticut, Maine,
and Yankee Atomic were bearing.

And we know they

weren't identical, but they were on the same

order of magnitude as our $8

million.

I don'

recall those numbers precisely, but I know they

vary.
BY MS. POWELL:

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Mr. Graves, did you test the

think
model.
Would you

one of your previous answers, you mentioned the
factor of ten would impact the

test the factor of ten sensitivity to the wet O&M
cost assumption?

MR. SHAPIRq:
THE WITNESS:

Objection, vague.

No, we never ran any

sensitivities with that extreme of variation in

numbers.

In fact, I wasn't offering that opinion

because of the empirical experience with the
model, but just because I can tell from the
structure of the model that that' s true.
BY MS. POWELL:
I think you answered this, but let me

make sure.

Then you also didn

I t

test your model

for like the $10 million instead of the
$8 million as listed here on line 51

MR. SHAPIRO:
THE WITNESS:

Obj ection , vague.

Correct.

Again, I can

tell that from the structural features of the

model, but I didn't run a simulation of the model

to allocate that.

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BY MS. POWELL:
Let me go on to the next line, dry O&M
costs per year.

Again, if you can just tell me

for the record what that represents?

This is the maintenance costs for an
ISFSI which is assumed to be the avoidable cost

of a full

that are part of the avoidable cost

faced by a fuel pool.
And where did you get this

$3. 5 million?
Again, Nuclear Assurance Corporation or

NAC, NAnd is your
if answer for number 6 - -

we were to change that value, the same answer

as you gave me for number 5, the $8 million, how
it would impact the results of your model?

Yes.

It would have

still
most.

denominator effects matter the

It'

predominantly full pools that won out in the
early years.

So they are the ones facing this

number.

But they have very small denominators of
So it would take a huge change

must -move fuel"

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' this
queue.

number to change that position of the

Let me ask a more general question,
Mr. Graves.

You said your last few answers have

been based on the structure of the
you run any sensitivities,

model.

Did

sensitivity analysis

on your model?

MR. SHAPIRO:
THE WITNESS:

Obj ection, vague.
Well, I don't think we

ran any in the sense of saying, well, now the

model is

done, now let'

s push it and tweak it in

different directions to see what

happens.

Instead, what happened is, over the
course of building the model , we didn't start off

with very good or specific estimates as some of
these numbers.

So we put in a place holder so

that the model would have the ability to solve

the problem and later get a better number.

So, for instance -- and I'll make this

up.

Let'

s imagine for sake of argument that we

thought the wet O&M costs per year were going to

be $6 million as a representative number and we

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BY MS. POWELL:
Well, again, staying in the non- breach

world, would one possible source of uncertainty
be the acceptance rate?

MR. SHAPIRO:
THE WITNESS:

Obj ection , vague.

Well , it matters what

time you' re talking about in the non- breach

world.

Once things are underway, uncertainty is

resolved.
People have more and more confidence in

the performance of the system, and they begin to

believe it'

s working.

It doesn't all go away,

but it changes over

time.

So there is

the

uncertainty has a personality of
BY MS. POWELL:

sorts.
world,

Well, again, in the non- breach

did you analyze the impact of alternative

acceptance rates?
MR. SHAPIRO:
THE WITNESS:

Objection, vague.

Well, in order to put a

price tag and a schedule into the damage
calcul~tions, we need to have a scenario that'

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representative of what we think would happen in
the uncertain world.

So I could have run lots of

scenarios.

I would still have to choose one or choose the

average of a bunch of them to describe, in order
for Dr. Wise to calculate the damages that would
ensue from not being in that

world.

So, we have to get specific at some

point just so that as a matter of practice to be

able to do calculations of what damages

are.

And so what I'

ve done is take a value

that I think is illustrative of reasonable

performance and lacking any reason to believe
that there' s noise around that that would bias

it, I' would use that as my representative value.
BY MS. POWELL:

Okay.

I do understand your answer, but

recognizing that to prepare your report, you had
to become somewhat specific in choosing
acceptance rate.

My question was really whether

you analyzed the impact of alternative acceptance

rates in arriving at this -- your report?

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handling and what fuel handling are you
talking about?
BY MS.
In order to

POWELL:
let'

start then with

the utility s ability to load the fuel into

either casks or

canisters.

Would the

fueling- handling

requirements that would be

needed for loading the fuel into casks or
canisters, would they have any impact on
DOE' s decision to approve or disapprove an

exchange?
MR.

SHAPIRO:

Objection.
I don't see

Vague.

THE WITNESS:

anything about swaps that makes fuel handling any harder than it is under OFF, so I don
I t

think it changes the fundamental character
the problem.

There has to be fuel- handling

capability, but that
ei ther case.
BY MS.

has to be there in

POWELL:
the fuel

Is it possible that

that

there would be a utility that would be
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capable of loading their fuel in a cask and
another one that was not for whatever reason

capable of loading their fuel in a cask?
Wouldn't that affect DOE'
whether to

s decision as to
Obj ection.

approve or disapprove an exchange?
MR.

SHAPIRO:

Vague.

THE WITNESS:

I would think

would also affect

the utility I s interest in
fuel.

having a swap for the time frame when they
weren't yet ready to handle their own

They would swap in a fashion that mapped into
their ability to handle
BY MS.

the fuel on site.

POWELL:

Would different casks used or in use

at different sites change the desirability of

campaigns?
MR.

SHAPIRO:

Obj ection.

Vague.

THE WITNESS:

I guess my belief

is none of the results of an exchange

that

produced campaign- like schedules would be

surprises not known to the government in advance long enough for them to accommodate
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them wi th logistical planning.

So I don'

think they aggravate those
BY MS.
POWELL:

problems.

I understand that you said that you
don I t

think it would be anything that

the

government couldn't solve, but I guess my
question was more basic as to whether ~t

would be impacted at
MR.

all.
Obj ection.

SHAPIRO:

Vague.

THE WITNESS:

I am not offering

an opinion that some swaps somewhere couldn
raise minor complications for the logistical

problems of the government and that all swaps

would have to be

approved.

Some could be

disallowed.

Sure, that'

s possible.

If they created intractable
short-run problems; I don' t think they would

have to be disallowed for very long, because
I don

I t think

those problems persist for very

long.

And if -- in many cases if they had to
it would be because the

be disallowed,

government could save even more money by an
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alternative to the order that saved the most

costs for the utilities,
would have savings,

in which case they
to buy the

if needed,

utilities out of their swaps and still have net social savings from the program.
MR.

SHAPIRO:

Is this a good

time for a break?
BY MS.
POWELL:

One or two more questions.

YoU'

okay?

m fine.
How are the disallowances that you
just referenced reflected in your model?
I don 't model any

disallowances

because I don't model specific bilateral

swaps.

That is,
model.

I don' t know who swaps wi

whom in my

I know that there are net

buyers,

and the sellers are all the people

those time frames who had OFF rights
they didn
I t

that

need because it

wouldn

I t save

them any money

those purchasers who had

OFF rights in a given year that they did not
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CERTIFICATE OF NJrARY PUBLIC
I, Linda C. Marshall, a Notary Public
in and for the District of Columbia, before

whan

the foregoing deposition was taken, do hereby
certify that the witness whose testinDny appears
in the foregoing

pa.ges was duly sworn

by ne;

that the testinDny of said witness was taken by

me in shorthand at the tine and place mentioned
in the caption hereof and thereafter reduced to
typewriting under

supervision; that said

deposition is a tnIe record of the testinDny
given by said witness; that I am neither counsel
for, related to, nor arployed by any of the

parties to the action in which this deposition
is taken; and, further, that I am not a relative

or arployee of any attorney or counsel arployed
by the parties thereto, nor financially or
otherwise interested in the outcane of the

action.

ccmnission expires:
November 30,

2005

0168

. "

''
Page 12 of 17

Case 1:98-cv-00126-JFM

Document 791-12

Filed 04/16/2004

COURT

UNITED STATES FEDERAL CLAIMS
OF

ATOMIC ELECTRIC COMPANY, ONNECTICUT YANKEE ATOMIC POWER OMPANY, MAINE YANKEE ATOMIC

~E

OWER COMPANY,

) Docket Nos. :

Plaintiffs.
HE UNITED STATES OF AMERICA,

98- 126C 98- 1S4C 98-474C

Defendant.

ORAL ARGUMENT

ages:

1'

throug~ SO

lace:
'ate:

Washington, D. C .
August 6, 2001

HERITAGE REPORTING CORPORATION
Official Reporters
1220 L Street, N. W. , Suite 600

Washington, D. C. 20005-4018 (202) 628-4888 hrc(g)concentric. net

0169

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THE
:.1

UNITED

STATES

, COURT

FEDERAL

CLAIMS

,e

YANKEE ATOMIC ELECTRIC COMPANY, CONNECTICUT YANKEE ATOMIC POWER COMPANY, MAINE YANKEE ATOMIC
POWER COMPANY,

) Docket NoS. L

9 e-126C

Plaintiffs.
THE UNITED STATES OF AMERICA,

98- 154C 98- 474C

Defendant.
Court room 6

Room 507
D . C.

National Courts Building

717 Madison Place, N.
Monday,

Washington

August 6, 2001 The parties met, pursuant to the notice of The

Court, at 2: 31 p. m .
BEFORE:

HONORABLE JAMES F. MEROW Senior Judge

APPEARANCES:

For the Plaintiffs:

JERRY STOUCK, Esquire ROBERT L. SHAPIRO, Esquire Spriggs & Hollingsworth 1351 I Street, N. W ., Ninth Floor Washington, D. C. 20005- 3305
(202) 898- 5839

1, .

Heritage Reporting Corporation
(202) 628- 4888

0170

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APpEARANcES '

( Con t

hiued)

For the Defendant:
HAROLD D. LESTER, Jr.

Esquire

MARIAN E. SULLIVAN, Esquire S. Department of Justice Civil Division 1100 L Street, N. 20530 Washington, D.
(202) 307- 6288

C.

~ 1

Heritage Reporting Corporation
(202) 628 - 4888

0171

...

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possible.
However, with regard to
THE COURT:

Are you contemplating non- party

discovery?
MR .

LESTER:

Yes, Your Honor, and that is built

into the suggested -- the joint motion and order that the
7 ~

parties all' stipulated to.

' It provides' dates for service of

those subpoenas upon third parties.

It'

s likely that most

of that will be at least initially document requests, and subpoenas, and then we will determine whether
it' s

worthwhile to pursue any particular third party utilities
for any further depositions or proceedings.

Let me go into the second part of the schedule
issues, Your Honor; one where we think the discovery from

, 15

the utilities is essential to our

case.

And that is, with

regard to rebutting the Yankees' claims with regard to
priority for shutdown reactors and these exchanges which the

Yankees claims are heavily dependent upon, you know , those

19

exchanges are based upon and depend

upon, al though the

Yankees dispute this, the existence of other utilities that
would have traded with them or had entered into agreements
wi th

them.

We have not identified any yet that have done
s important for mounting a full defense

23 ,

so, but we think it'

to the Yankees ' claims that we fully exhaust those avenues

so that when we -- we understand that under the Court' s pre-

Heritage Reporting Corporation
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trial order what we are supposed to submit to the Court is
our complete case for trial, for

a trial or further

proceedings; and that we think to do that we need to exhaust
'11

or complete the discovery in the coordinated proceedings.
THE COURT:

rq,

Okay.

Mr. Stouck?

MR. STOUCK:

Yes , Your Honor.

Let me start at the beginning of our

pos,ition

because I have got a number of things to say a~d a number

things in response to Mr. Lester, and I would like to start
at the beginning.

But to frame what I am about to say ~ you

may recall we w~re back here two or two and a half years ago
asking for

lots of wide-ranging discovery before we
,i

submitted our pre-trial submissions.

And the Court at that time, I would say, rather

1r:'

, 15

narrowly confined our discovery rights on what I understood
to be your understanding and interpretation of your pretJ'

trial orders as being intended to streamline discovery and

not to contemplate necessarily things like third

pa+ty.
they'

You know, the government, what they are-really
saying here is they need to ask someone else before

-u

find out what their position is, and I think it' s a little

strange.
But to take it from the top, as Mr. I,.e;:;ter said,

/' ?4

as soon as we got your order I sent them a letter suggesting
i I

that 75 days would an appropriate time, October 15th, to
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Case 1:98-cv-00126-JFM Document 791-12 Filed 04/16/2004 Page 17 of 17
REPORTER' S CERTIFICATE
DOCKET' NO~ :

,,

98-1260
Yankee Atomic Electric v. United States

CASE TITLE:
HEARING DATE:
LOCATION:

August 6, 2001
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.

f'i

Date:

August 6, 2001

Theodore Fambro

Official Reporter
Heritage Reporting Corporation
Suite 600
ie;

0 1220 L Street, N.

- L

Washington, D.

C.

20005-4018
\I

(:34
itA

Heritage Reporting Corporation
(202) 628- 4888

0174