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

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Case 1:98-cv-00126-JFM Document 789-3 Filed 04/16/2004 Page 1 of 15

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC
COMPANY,

Plaintiff,

Case No. 98-126C
Senior Judge

Merow
THE . UNITED STATES,

Defendant.

Washington, D. C.
Friday, June 4 , 1999
Deposi tion of CHRISTOPHER A. KOUTS, a

witness herein, called for examination by counsel for Plaintiff in the above-entitled matter
pursuant to notice, the witness being duly sworn

by MARY GRACE CASTLEBERRY, a Notary Publ ic in and
for the District of Columbia, taken at the
offices of Spriggs & Hollingsworth , 1350
Street, N. W., Washington , D. C., at 10:00 a.

Friday, June 4

1999, and the proceedings being

taken down by Stenotype by MARY GRACE
CASTLEBERRY , RPR , and trans
c r

ibed unde r he

direction.
,)-1

ALDERSON REPORTING COMPANY , INC.
(202)289- 2260
1111 14th ST., N. W., 4th FLOOR
(800) FOR DEPO

WASHINGTON, D.

, 20095

0001

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was the

first.
Do you know where that date came

from,

how that date came to be included in the

presentation?
I was not directly involved in the

development of that

report,

so I couldn t say.

Do you know who was involved?
I believe the staff person at the time

was Vic Trevules, t ha t ' s T - r - e - v - u - 1 - e - s .
Does he currently work for DOE?

Yes, he works for the Yucca Mountain

proj ect.
Do you have any understanding at all of

where the 2010 number came from , how it was

derived, what the basis for that number

is?

It was developed through working wi

the ' repository program , which was an area of the
program I wasn' t working with at the

time, so I

don t have any direct knowledge as to how
date was developed.

that

Do you have any indirect knowledge?

No.
When do you believe that spent nuclear
fuel will start to be picked up from nuclear

utilities?
ALDERSON REPORTING COMPANY, INC.
(202)289- 2260
1111 14th ST.. N. W" 4th FLOOR I WASHINGTON ,
(800) FOR DEPO
D.

, 20005

0002

......-

:./

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I bel ieve, assuming
resources,

we get the

that it can be done by

2010.

Do you believe it will be done by 2010?
I can' t really

say.

Any particular reason why you can'

say?

It'
budgets,

s predicated upon preceeding

it'

s predicated upon many, many
I think our schedules are

different variables.

reasonably based, but there are many variables

associated with it.
What do you expect to happen?
:'7"\
, i 0

Do you

expect that you will get the budgetary

all

these variables will fall into the place and that
the 2010 date will be met?
I don' t know.

I couldn t say.

What will be the initial rate of
acceptance for spent nuclear fuel when the
program begins accepting the utility s spent

nuclear fuel?
My sense is it would be the same
acceptance rate that' s outlined in the annual

capacity reports that we' ve issued over the

years.
You said reports

plural.

Did you say

ALDERSON REPORTING COMPANY, INC.
1111 14th ST., No

(202)289- 2260 (8001 FOR DEPO , 4th FLOOR WASHINGTON, D. C., 20005

0003

..........

\,

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f"\.
1..0"

report or reports?

I thought I said reports.

I thought

there were more than one ACRs

issued.

I asked that question because the

numbers have changed over the years, so which

particular annual capacity report are you

referring to?
The latest one, whichever one that was.
Is there more than one scenario
acceptance currently being evaluated by DOE?

What I mean by

that is,

is it a repository only

acceptance or is it a repository with some
interim storage or something

else?

Our baseline program is acceptance in

2 010 a

t

r e p 0

sit 0

ry .

Is there any plan or provision for
interim storage?
Lacking authori ty,

no.
are there

Even without the

authority,

any plans being made in the event that authority
is granted?

The Department has taken steps to allow

i tsel f to

implement interim storage as quickly as
was given authority.

possible, assuming it

The

topical safety analysis report on the interim
ALDERSON REPORTING COMPANY, INC.
(2021289. 2260 (8001 FOR DEPO 1111 14th ST., N. W" 4th FLOOR WASHINGTON , D. C., 20005

0004

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CERTIFICATE OF REPORTER

--Y
UNITED STATES OF AMERICA) ss.
DISTRICT OF COLUMBIA

, l\1ARY GRACE CASTLEBERRY , RPR, the officer before
whom the foregoing deposition was taken , do hereby certify that the

witness whose testimony appears in the foregoing deposition was duly
- sworn by me; that the testimony of said witness was taken by me to

the best of my ability, and thereafter reduced to typewriting under my

direction; that I am neither counsel for , related to , nor employed by
any of the parties to the action in which this d eposition was taken , and
further that I am not a relative or employee of any attorney or counsel

employed by the parties thereto , nor financially or otherwise interested
in the outcome of the action.

Notary Public in and for
the District of

Columbia

My commission expires: 06/30/2001

0005

,: ,::) ,:

, ,, : "

.

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United States General Accounting Office

GAO

Report to Congressional Requesters

December 2001

NU CLEAR WAS

Technical , Schedule
and Cost
:0"'" .

es of the Yucca Mountain
U ncertainti,

toO'

Repository Project

GA
Aec:ountabillty * Integrity * Reliability

GAO-02- 191

0006

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Contents

Letter
Results in Brief Background
It May Be Premature for DOE to Make a Site Recommendation

DOE Is Unlikely to Open a Repository in 2010 as Planned Conclusions Recommendations for Executive Action
~ency Comments and Our Evaluation

Scope and Methodology

Appendix I
Appendix H

Objectives , Scope , and Methodology
Comments From the Department of Energy
GAO Contact and Staff Acknowledgments
GAO Contact

Appendix HI

Acknowledgments

Figure
Figure 1: Comparison of Statutory Site Approval Process With DOE' s Projected Schedule

Abbreviations
DOE EPA
GAO NRC OCRWM USGS

Department of Energy
Enviromnent.al Protection Agency

General Accounting Office Nuclear Regulatory Commission
Office of Civilian Radioactive Waste Management S. Geological Survey

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United States General Accounting Office Washington, DC 20548

#:. 11#

December21, 2001
The Honorable Harry Reid

Chainnan, Subcommittee on Transportation Infrilstructure, and Nuclear Safety
, Committee on Environment and Public W Qrks

United States Senate
The Honorable Shelley Berkley House of Representatives

As reflected in the administration s energy policy, there is renewed , interest jn exPanding nuclear power as a sO\lrce of electriCity. At the same time, the nation cUITently does not have a facility to permanently dispose

of the highly radioactive spent (used) fuel from existing commercial
nuclear power plants. In lieu of such a facility, plant owners are cUITently

holding about 40 000 metric tons of spent fuel in temporary storage at 72
plant sites in 36 states. h\ addition, the Department of Energy (DOE) estimates that it has over 100 million gallons of highly radioactive waste
and 2 500 metric tons of spent fuel from the development of nuclear weapons and from research activities in temporary $orage. Because these wastes contain radioactive elements that remain active for htmdreds of thousands of years, the pennanent isolation of the wastes is critical for safeguarding public health , cleaning up DOE' s nuclear facilities, and providing a reasonable basis for increasing the number of nuclear pOwer plants.
As required by the Nuclear Waste Policy Act of 1982 ,

as amended in 1987,

DOE has been studying one sUe at Yucca Mountain, Nevada, to detemline its suit~bility for disposing of highly radioactive wastes in a nlined geologic repository. If the Secretary of Energy decides to recommend this
site to the President, the recommendation would begin a statutory process

for the approval or disapproval of the site that will involve the President, the state of Nevada, and the Congress. In addition, a subsequent presidential site recommendation would trigger stmutory time ftames for action by the state, the Congress , DOE , and the Nuclear Regulatory Conm\ission(NRC). lfthe site is recommended and approved, DOE must
apply to NRC for a license to construct a repository. If the site is not

recommended and approved for a license application, or if NRC denied a license to construct a repository, the administration and the Congress would have to consider other options for the long-tem\ management of existing and future nuclear wastes.
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Site investigation activities at Yucca MOtmtain include studies of the
physical characteristics of the moun~n and potential waste containers.

The investigation also includes the development and use of mathematical models to measure the probability that various combinations of natural and engineered (man-made) features of a repository could safely contain
wastes for 10 000 years. The Environmental Protection Agency (EP A) has set health and safety standards for a repository at Yucca Mountain that require a high probability of safety for at least that period of time. DOE' site is suitable for a repository and the NRC' criteria for detennining if the

licensing regulations are consistent with these standards. DOE has designated the nuclear waste program, inc1udir,.g the site investigation, as a
major" program that is subject to senior management's attention and to its ag(mcywide guidelines for managing such programs and projects. The

guidelines require the development of a cost and schedule baseline, ' system for managing changes to the baseline, and independent, cos,t and schedule reviews. DOE is using a management contractor to carry out the work on the program. DOE' s management contractor develops and maintafus the baseline, but senior DOE managers muSt approve significant
changes to cost or schedule estimates. In February 2001 , DOE hired to manage the program and ' Bechtel SAlC Company, LLC (Bechtel),

technical work and the required the contractor to reassess the estimated schedule and cost to complete this work.
In 1996, the U. S. Court of Appeals for the District of Columbia Circuit

rem~

ruled that the Nuclear Waste Policy Act obligated DOE to start disposing

ofthe spent fuel from commercial
January 31 ,

nuclear power plants no later than

1998; In 1998, because DOE could not meet this deadline, the

S. Court of Appeals for the Federal Circuit held in another case that

plant owners are entitled to damages. One of the major issues in the detennination of damages is the schedule under which DOE will begin accepting the spent fuel. DOE does not expect to complete the sequence of site approval , licensing, and construction of enough of the repository facilities at Yucca Mountain to open it until at least 2010; Courts in these 2 cases and 16 cases brought by other utilities are currently assessing the
amount of damages that DOE OWes the plant owners for delaying the disposal of their wastes by the estimated ' l2-year delay. Estimates of the potential damages vary widely, from DOE's estimate of about $2 billion to

the nuclear industry s estimate of $50 billion.
Given these circmustances and questions raised about DOE' s investigation of the Yucca Mountain site, you asked us to detennine the extent to which

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. DOE has completed the work necessary to support a site recommendation
for the development of a repository at Yucca Mountain and . DOE's goal of opening a repository at Yucca Mountain in 2010 is

reasonable.
Recommending to the President that the Yucca Mountain site is suitable for a repository is within the discretion of the Secretary of Energy but, for the reasons noted below, maybe premature. Once the Pr,esidentconsiderS
the site qualified for a license application and recommends the site to the

:Results

in Brief

Congress, the NuClear Waste Policy Act requires DOE to submit a license
application to NRC within about 5 to 8 months. I On the basis of infommtion we reviewed, DOE will not be able to submit an acceptable application to NRC2 within the express statUtory time frames for several

years because it will take that long to resolve many technical issues.
Specifically, DOE is currently gathering and analyzing technical

infomlation required to satisfy 293 agreements that it made with NRC.
According to NRC , completing this ongoing technical work is essential for

it to accept a license application from DOE. Some of these agreements, for example; provide for the additional study of how water would flow
through the repositOry area to the w'lderlying grOtmdwater and the durability of waste containers to last for thousands of years. Many of the

technical issues that were the subject of these agreements have also been of concern to the U. S. Nuclear Waste Technical Review Board, which was established by the Nuclear Waste Policy Act to review the technical and ' scientific validity of DOE's investigation of Yucca Mountmr.. " Bechtel's September 200 Idetalled reassessment of the work required to submit a license application, including the 293 agreements with NRC and assuming expected f'lmding levels , concluded that DOE would be in a position
submit a license application to NRC in January 2006, or about 4 years from now. Under the Nuclear Waste Policy Ac..'t and DOE' s siting guidelines

I If the President makes a recormnendation to the Congress, Nevada has 60 disapprove the site: If disapproved, the Congress has 90 days of continuous seSsion . to enact legislation overriding a disapprovaL If the C.ongress overrides the state
Secretaly is required to submit a license application to NRC \\oithin 90 days afterthe site recommendation Leo effective. These time frames l)rovide about 150 to 240 days. or about 5 to 8 months, from the time the President recomrilends the site w~til DOE
dLo;approval. the

submits a license aPplication.
~ The acceptance of a license application is riot the same as approving an application. A decision to approve or disal)prove any application would be niade by NRC following extensh-e review and testing.

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while a site recommendation and a license application are separate processes , DOE will need to use essentially the same data for both.
On the basis of the infonnation we reviewed, DOE is unlikely to achieve its goal of opening a repository at Yucca Mountain by 2010 and cUlTently does not have a reliable estimate of when , and at what cost. sllc)l~Jepository can be opened. Since DOE stopped using the cost and schedllle baseline to manage the site investigation in 1997 , the repository prognuu s baseline
has not reflected changes in the program. For example, when the program s fiscal year 2000 appropriation was $57. 8 million less than requested , DOE defeITed some planned teclmical work without adjusting As a result, it was not clearly visible the baseline to reflect this action. when, and at what cost, the site investigation would be completed and a license application submitted to NRC. Bechtel , in its September 2001

detailed reassessment, concluded, on the basis of expected program funding; that DOE could submit the application in January 2006 at a total cost of $5. 5 billion. This date is approximately 4 years later, and the
$5. 5 billion figure is about $1.4 billion more than DOE' s projection in 1997. Using Bechtel's estimate , sufficient time would not be available for DOE to

obtain a license from NRC and construct enough of the repository to open it in 2010. Therefore , DOE is exploring alternative approaches to opening a repository in 2010 , such as developing surface facilities for storing waste at the site lmtil sufficient underground disposal facilities can be constructed.
Weare recommending that the Secretary of Energy fully consider the

timing of the statutory process before he decides when to make a site recommendation to the President. We are also making recommendations
to DOE to better manage the nuclear waste program and to prepare

estimates of the schedule and costS for opening a repository at Yucca Mountain that are tied to a new baseline for the program.
DO E disagreed that it may be premature for the Secretary of Energy to

make a site recommendation to the President on the grounds that we did
not understand the statutory and regulatory requirements for a site

recommendation. (See app. II. ) We agree that the Secretary haS the discretion to make such a recommendation at this time; however, we question the prudence and practicality of making such a recommendation at this time , given the express statutory time frames for a license
application and the significant amotmt of work remaining to be done for

NRC to accept a license application from DOE. Our conclusion is based
on the relationship between a site reconunendation and DOE' s readiness to submit an acceptable license application to NRC , as set out in law and

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