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

--------------Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 783-8
Washington, D.

Filed 04/07/2004

Page 1 of 17
June 13

2002

;,;1""

Page 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- X

YANKEE ATOMIC ELECTRIC
COMPANY, MAINE YANKEE ATOMIC
POWER CO. , and CONNECT I CUT

yertifled COpy
: Case No. 98 - 126C
: 98- 474C, 98-154C

YANKEE ATOMIC POWER CO.

Plaintiffs

: (Senior Judge

Merrow)
UNITED STATES OF AMERICA,

Defendant
- X

washington ,

D. C

Thursday, June 13 , 2002

Deposition of NANCY SLATER THOMPSON , a
witness herein, called for examination by counsel
for the Plaintiff in the above- entitled matter

pursuant to notice, the witness being duly sworn
taken at the offices of Spriggs & Hollingsworth
1350 I Street, N. W., Washington, D.
, at 9:40

a. m. , Thursday, June 13, 2002 , and the proceedings

being taken down in Stenotype by DEBORAH
WILKINS, RPR , and transcribed under her direction.

Alderson Reporting Company, Inc. 1111 14th Street , N. W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 783-8
Washington , D.

Filed 04/07/2004

Page 2 of 17
June 13 , 2002

Page 148

strategic significance.

A government argument that I have

heard made at times, and I will ask if you
heard this before, not necessarily from government
counsel, have you ever heard an interpretation of

the contract that would say that the government

would meet its obligation by accepting one fuel
! 8
; 9
'0

element from one utility by January 31, 1998?
MS. SULLIVAN

Obj ection to the extent

it calls for a legal

conclusion.

, I

i .J. J.

I have never heard

that.

Has such an interpretation ever played

I ' 1.5
! 15
i ..It!
11
I ..

a role in your work in the waste acceptance

division?
MS. SULLIVAN
Obj ection , vague.

Obj ection, foundation.

I have never heard it, and I don

r t

! 18
1. 9

recall even considering
MR. SHAPIRO:

that.
That r S all
the questions

I have for you at this time , Ms. Slater Thompson.
I "

I appreciate your help.

?,I

I should note that there r s a

small

chance that we may seek to talk to you yet

again,

; 24
I'
L.._,.

there is an issue concerning some documents that

we may or may not get which may or may not address
Alderson Reporting Company, Inc. 1111 14th Street , N. W. Snitf'. 400 l- ROO- FOR_ PO Washington, DC 20005

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Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 783-8
Washington , D.

Filed 04/07/2004

Page 3 of 17
June 13 ,

2002

Page 149

issues that relate to

you.

I am sure we wi II have

to deal with Ms. Sullivan and the government on

that ,

but except for that possibility I don

r t

think we will have further questions for
I understand.

you.

Thank you.
I have a couple

MS. SULLIVAN:

questions.
EXAMINATION

BY MS. SULLIVAN

Ms. Thompson, do you recall your
testimony in response to some questions from Mr. Shapiro as to whether you had any knowledge as to
what the approved DCSs would be used for?

Yes, I do , and I believe I had

indicated to him that I didn

r t

have a real

knowledge of what others were using those

for.

Sitting here today, do you have an
understanding as to what aspects of the program
would use approved DCSs for planning purposes?
I think it would be safe to say that

the transportation group would probably find the
most utility in the DCSs.

Do you have or have you ever had
responsibility for transportation planning for the

program?
Alderson Reporting Company, Inc. 1111 14th Street , N. W. Suite 400 1- 800- FOR"DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM
Nancy Slater Thompson

Document 783-8
Washington, D.

Filed 04/07/2004

Page 4 of 17
June 13 ,

2002

Page 150

No.
Ms. Thompson, while you were in the

waste acceptance division , do you recall
disapproving delivered commitment schedules
delivered by utilities?

Yes.
Given your testimony that delivery
commitment schedules are largely for planning

purposes only, why would you disapprove a delivery

commitment schedule?
There could be multiple administrative

reasons like the DCS not signed, signed by a person not identified as having ability to

sign,

but primarily for exceeding their allocation for a
particular year.

And do you have an understanding as to

the effect of the utility'
Yes.

s failure to submit a

DCS in a year in which they have an allocation?
I believe it was always our

intent that if a utility failed to submit a DCS in that year that it would be a waiver of their

desire to deliver , and we would have reallocated
that capacity to the next utility or utilities in
the cue.

I believe Mr. Shapiro has asked you
Alderson Reporting Company, Inc. 1111 14th Street , N. W. ~1I 1tp AJ\O L~Oo_ FoR_ nFPO Washington, DC 20005

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------------------Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8

Filed 04/07/2004

Page 5 of 17
March 13 , 2002

Mclean. VA

\T~'
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- -x

245

YANKEE ATOMIC ELECTRIC COMPANY

(98- 126C)

(Merow , S.

CONNECTICUT YANKEE ATOMIC POWER COMPANY
(98-154C) (Merow , S.

FLORIDA POWER & LIGHT COMPANY

(98- 483C)

(Wilson, J.

CfErtlJu~~(E~) CO~)'i'

NORTHERN STATES POWER COMPANY

(98 -484C) (Wiese, J. )
DUKE POWER , A Division of
DUKE ENERGY CORP.
(98-485C) (Sypolt,

INDIANA MICHIGAN POWER COMPANY

(98- 486C)

(Hodges, J.

SACRAMENTO MUNICIPAL UTILITY DISTRICT

(98 - 488C) (Yock ,

S. J.

SOUTHERN NUCLEAR OPERATING COMPANY,
et ale

(98 - 488C) (Yock ,

S. J.

COMMONWEALTH EDISON COMPANY

(98- 621C)

(Hewitt, J.

BOSTON EDISON COMPANY

(99- 447C)

(Allegra, J.

GPU NUCLEAR , INCORPORATED

0095
Alderson Reporting Company, Inc.
1111 14tH Street, N, w. Suite 400 1- 800- FOR- DEPO Washington, DC 20005

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- - - - - - - - - - - - - - - - - - - -Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8

Filed 04/07/2004

Page 6 of 17
March 13 , 2002

Mclean. VA

246

(00-440C) (Bush, J.

WISCONSIN ELECTRIC POWER COMPANY

(00- 697C) (Merow, S.
POWER AUTHORITY OF THE STATE OF NEW YORK

(00 - 703C) (Damich, J.
OMAHA PUBLIC POWER DISTRICT
(01-115C) (Bush, J.

NEBRASKA PUBLIC POWER DISTRICT

(01- 116C)
(01- 249C)

(Sypolt, J.

TENNESSEE VALLEY AUTHORITY
(Bruggink , J.

Plaintiffs,
Discovery
THE UNITED STATES

: Judge:

Defendant.
McLean , Virginia

: (Judge
xSypo 1 t )

Wednesday, March 13, 2002

Continued deposition of BILLY M. COLE
a witness, recalled for examination by counsel

for Plaintiffs in the above-entitled matter

pursuant to notice, the witness being duly sworn

by CATHERINE S. BOYD , a Notary Public in and for
the Commonwealth of Virginia, taken at the offices of Shaw Pittman , LLP , 1650 Tysons

0096
Alderson Reporting Company, lnc, 1111 14th Street, N, W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8

Filed 04/07/2004

Page 7 of 17
March 13 , 2002

Mclean. VA

480

draft.
No.
I wasn
r t

party to it, but

Do you know whether, during the course

of your involvement with the standard

contract,

whether certain utilities objected to DOE the

possibility that DOE would give priority to
shutdown reactors?
Yes, I do.

As part of the issue

resolution process, one of the issues, I can I

remember which number it was, should priority be
given to shutdown reactors?

And since that was an equity issue, we
tossed it across the table to the utility

representatives.
They took it and met with

- - sent

out to all utilities, and got a consensus back

to DOE on

it.
And the consensus was under no

circumstances will priority be given to shutdown

reactors.
issue --

That was their
And when you

finding.

say it was an equi

If I take fuel away from a shutdown

then I can't take one away from operating if
you

I ve only got so much capacity.
0097
Alderson Kepomng LolllpallY, Inc,

1111 14th Street, N. w. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8
Mclean. VA

Filed 04/07/2004

Page 8 of 17
March 13 , 2002

481

From DOE' s standpoint, if it was fine

with the utilities, it was fine with DOE?

That' s right.
They don' t
care.

DOE are truck drivers.

That'

s right.

And there was a memo

that came back from DOE, I mean from the

utilities by the chairman of that committee
saying this is their position.

At that time,
Zabransky.
m going to hand

the chairman of that

committee is now a DOE employee, Mr. David

you

a memo dated

June 28th, 1991 , from Mr. McDuffie and Mr. Vance

to Mr. Brownstein and Mr. Langstaff, and its
subj ect is recommended DOE positions on 17

contract implementation
, Okay.

issues.

(The witness reviewed the document.
THE WITNESS:

Okay.

BY MR. MACDONALD:

In your testimony, testimony a moment
ago, you

referred to the issue resolution

process, and specifically the response that came

back from the utilities on the shutdown reactor

priority?
0098
Alderson Reporting Company, Inc, 1111 14th Street, N, w. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8

Filed 04/07/2004

Page 9 of 17
March 13 , 2002

Mclean. VA

482

That'

s correct.

Would you turn to the bot tom of page

, top of page 5?

Okay.
This appears to be ID No. 15 or Issue

No. 15, acceptance reactors?
Urn - hm.

priority for shutdown

And the position has two,

it has two

elements,

Phase 1 and Phase
Um- hm.

And Phase 1 says since this issue is

primarily an equity issue among the purchasers
an has no impacts on WMS performance or public
safety, DOE concurs with purchasers I consensus

view that no priority shall be afforded to
shutdown reactors during the start-up phase of
the WMS?

Correct.
What does that, the last phrase mean,
during the start-up phase of the WMS?

The first few years of

operation,

they'

re not going to sit there and impact the

operating reactors.
Once we get to them , you know , as the

0099
Alderson Reporting Company, Inc, 1111 14th Street, N. W. Suite 400 1- 800- FOR-DEPO Washington, DC 20005

Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8
Mclean. VA

Filed 04/07/2004

Page 10 of 17
March 13 , 2002

483

next phase says, in the first line, as the
system matures, then we'll reconsider this thing where we can, we can start taking this stuff
from shutdown reactors.

And do you think that was, to your
knowledge, was that DOE' s position?
I don' t know if they wound up

formalizing that or not because these were recommendations to DOE, what we recommended be
done with those positions.
I don't know where, I don' t know

whatever happened to the resolve of most of

these.
I just don't know.
I can't remember.

And Phase 2 continues there and

says,

quote, when the WMS receipt rate exceeds the

aggregate purchasers' annual discharge rates and
all purchasers can be assured that they will not

need additional add reactor storage, DOE may

elect

allocate shutdown reactors
closure
That'

acceptance priority to
to facilitate the permanent
soon as possible?

those sites

true.

That was

recommendation , that they consider

that.

Did you have discussions with Mr.

0100
Alderson Reporting Company, Inc. 1111 14th Street, N, W. Suite 400 1- 800- FOR- DEPO Washington, DC 20005

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Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8

Filed 04/07/2004

Page 11 of 17
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2002

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484

McDuffie or Mr. Vance while this recommendation
was being developed?

The development process was going on
prior to this date, yes.

We have had discussions on this many
times, and I don't remember , you know,

specifically on this date or this draft, but I r m
very familiar with this, and we have discussed
it, yes.

And it was, was it your view that once
the receipt rate or acceptance rate exceeded the

discharge rate, that priority could be given to
shutdown reactors?

It says, it says you may give

it.

The, the problem that' s

going to occur in that

is you have to wait until your system is well

along and fully matured and everybody is

comfortable and fuel is being moved for a

while.

Otherwise you with the shutdown

reactor ,

and some guy has got an operating

reactor and he' s got a right to ship some fuel

that year , he' s not going to want to give up his

rights for you to ship that fuel, not unless we
have emptied sufficient amount away from him the
previous years where he

t s not going to have a
0101

Alderson Reporting Company, me, 1111 14th Street, N. W. Suite 400 1- 800-FOR- DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM
Billy Cole

Document 783-8
Mclean. VA

Filed 04/07/2004

Page 12 of 17
March 13 , 2002

485

problem.
He' s going to be concerned about
continue operating, so you have to wait for the
system to mature well enough and everybody feels
comfortable that it'

s all, it'

s over all the

hiccoughs, it' s not going and it' s moving along.

to shut itself down

We just want a recognition that even
though the utilities came back and said under no

circumstances, as a consensus, should priority

be to shut down reactors, we felt we still need
to leave that door open and they may want to do that to help them in the decommissioning

process.
And when you say that the utilities
came back with that view, do you know if SMUD or

other shutdown reactors as of 1991 shared that

view?

, No, I

do not.

I would imagine the

owners of the shutdown reactors did not share
that view , but if you get a two- thirds

consensus, I can tell you 90 percent were

operating, and so it I S not surprising.
Also I know even though I was not at
those meetings, where they had

pri vate meetings

0102
Alderson Keponmg Company, Inc,
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Billy Cole

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486

with the utilities to go over these
have a friends.

things, I

I know that some of the things

that came out of those meetings.

They had trouble even figuring out

what was a consensus, and Commonwealth Edison
got up and made the statement we agree two
thirds should be consensus as long as we' re part
of the two thirds.

There'

s a lot of people involved in

this. Unfortunately, it I S not one contract.
Was oldest fuel first considered an
efficient way to deliver fuel?

No, not necessarily an efficient way

to deliver it.
It was the efficient way to allocate

capacity.

To try to find a way

- - you I

honoring the fact that the guys who have the

oldest fuel also have the oldest reactors and

been operating the longest period of time, so
they should have the first rights, so the age of
the fuel established the priority for

acceptance, not what fuel is going to be

taken.

Now in a perfect world , it would be a
nice way if you

didn I t

have to worry about

campaigning and things like that, age of the

0103
Alderson Reporting Company, Inc, 1111 14th Street , N, w. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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- - - - - - - - - - - ....- - - .
Lake H. Barrett CONTAINS CONFIDBNTIAL INFORMATION PURSUANT TO TIlE PROTECTIVE ORDER- VOLUME

Case 1:98-cv-00126-JFM

Document 783-8

Filed 04/07/2004

Page 14 May 172002 of 15, n
Page 242

Washington , D.
;"~.o.i1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC

COMPANY, MAINE YANKEE ATOMIC
POWER CO., and CONNECTICUT
YANKEE ATOMIC POWER CO.,

CerIfted Copy
: 6ase No. 98- 126C,
: 98- 474C,

Plaintiff~,
vs.
UNITED STATES OF AMERICA,

98- 154C

: (Senior Judge Merrow)

Defendant.

: VOLUME II

Washington, D . C .

Wednesday, May 15, 2002
Deposition of LAKE H. BARRETT, a witness

herein,

called for examination by counsel for Defendant in the above-entitled matter, pursuant to notice, the

witness being previously duly sworn, taken at the offices of Spriggs & Hollingsworth, 1350 Eye
Street, N. W .,

Washington, D. C.,

commencing at 9: 05

m., Wednesday, May 15, 2002, and the proceedings
being taken down by Stenotype by CAPPY HALLOCK

RPR- CRR, and transcribed under her direction.

CONTAINS CONFIDENTIAL INFORMATION

PURSUANT TO THE PROTECTIVE ORDER

Alderson Reporting Company, Inc.

111114th Street , N. W. Suite 400 1- 800- FOR-DEPO Washington, DC 20005

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Case 1:98-cv-00126-JFM

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n
May 15,

Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO THE PROTECTIVE ORDER- VOWME

2002

Page 363

Is that a fair characterization?

Yes. Okay.

Number I, " Granting priority can

be shown to be lest costly to DOE' s waste

management system.
Do you believe that a shutdown utility
could make that showing?
MS. HERRMANN:

Obj ection.

Speculation.

Possibly.
Okay.
Well, I mean the question is not

whether this would always be true, but whether --

the question included possibly.

Is it possible

that a shutdown utility could make that showing?

m not sure that " possibly "

is a fair answer to

that.
MS. HERRMANN:

Objection.

Speculation.

Asked and answered.
What was the question?

The question is could a shutdown reactor, is it possible that a shutdown reactor

could show that granting priority acceptance to it
would be less costly to DOE' s -- would reduce the

cost of the waste management system?

Yes.
And is it possible that granting

Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800-FOR- DEPO Washington , DC 20005

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Case 1:98-cv-00126-JFM

Document 783-8
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Filed 04/07/2004

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Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO THE PROTECl1VE ORDER- VOLUME II May 15 2002

Page 364

priori ty acceptance -- this is Number 2 -- to a shutdown utility -- I I m paraphrasing -- could be

shown to involve small enough quantities of fuel

compared to the overall DOE acceptance rate so as not to jeopardize the timely removal of spent fuel
from other sites.

Is it possible that they could

make that showing?
MS. HERRMANN:

Obj ection.

Speculation.

You use the word timely in an absolute

sense.

The answer is

no.

Okay.

So it is your opinion that

granting priority acceptance to a shutdown
reactor would necessarily involve a schedule
impact to some other utility or utili

ties?
system.

other words, there is no play in the

you got priority for one, somebody else would
necessarily have to move; is that your

understanding?
Yes.
And I take it you would agree that

granting priority -- this is a different question -- not whether the showing could be made, but I

take it you would agree that granting priority to a

shutdown reactor can be shown, at least in some
circumstances, to avoid the establishment of

,i
Alderson Reporting Company, Inc. 111114th Street , N. W. Suite 400 1- 800-FOR-DEPO Washington , DC 20005

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Lake H. Barrett CONTAINS CONFIDEN11AL INFORMAll0N PURSUANT TO THE PROTECTIVE ORDER- VOLUME II May 15, 2002

Case 1:98-cv-00126-JFM

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Page 365

otherwise unneeded reactor site storage

facilities?
Yes.
MS. HERRMANN:

Objection.

Speculation.

And Number 4, " Granting priority can be

shown to be clearly cost-effective for consumers

from the, standpoint of timely
talked about that earlier.
MS. HERRMANN:

decommissioning.

I take it you agree with that?

Objection.

Speculation.

Yes.

All right.
about.
Okay~

And Number 5 is an overall

policy issue which I think we have also talked

I think we have exhausted that one, and
I just have a couple more questions for you about

your prior testimony and I hope we can wrap this

up.

So all my remaining questions, I believe, are

going to concern either Exhibit Number

100 or

Exhibit Number 97, which are the first two days of
your testimony in this deposition, so you might
want to have those handy.

Before we turn to those I do have one
other question.

Yesterday we talked about

something, and I believe, Mr. Barrett, it concerned

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