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

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 1 of 15

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
Y;i.,

YANKEE ATOMI C ELECTRI C COMPANY

CONNECTICUT YANKEE ATOMIC POWER COMPANY

MAINE YANKEE ATOMIC POWER COMPANY
FLORIDA POWER & LIGHT COMPANY

NORTHERN STATES POWER COMPANY

DUKE POWER, A pi vision of DUKE ENERGY CORP.
INDIANA MICHIGAN POWER COMPANY

SACRAMENTO MUNICIPAL UTILITY DISTRICT
SOUTHERN NUCLEAR OPERATING COMPANY COMMONWEALTH EDISON COMPANY
'i.

, et al.

BOSTON EDISON COMPANY
GPU NUCLEAR ( INCORPORATED

WISCONSIN ELECTRIC POWER COMPANY

POWER AUTHORITY OF THE STATE OF NEW YORK
OMAHA PUBLIC POWER DISTRICT

NEBRASKA PUBLIC POWER DISTRICT
TENNESSEE VALLEY AUTHORITY

Plaintiffs
UNITED STATES

Defendant.
DEPOSITION OF ROBERT L. MORGAN

March 21 and 22, 2002

Volume 2, Pg 213 - 330

0010
Court n_--_..
541/485-11111 . IlL haSt 11th Avenue.

Imgene, Oregon 97401

800/344-0983 . FAX 541/485-0926 . Salem Office 503/362-9193

CERTIFIED COpy

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 2 of 15

R. Morgan / Neslin
shutdown reactors
is necessary to prevent

314

reactors from waiting 20 or 30 years to be
decommissioned after they finish generating

electrici ty.
Does that

Would you agree wi

that?

Did you agree with that at the

time?

Yes.
What did you mean,

necessary to
II ?

prevent them from

wai t ing 20

to 30 years

We didn't want to hold up D and D of

a reactor si te.
liD and D" referring to?
Decommissioning and - - 14

what'

s the --

I don't remember the acronym.

Shutting down the

reactor.
Was that one of your objectives,

avoid -MR. BANES:

Obj ection.

Vague.

BY MR. NESLIN:

to avoid holding up
A utility from D and D?

Yes.

Decommissioning.

We didn I t want to

do that.
That was an objective of yours?

C & C COURT REPORTING 0011

541/485- 0111

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 3 of 15

R. Morgan

1 Neslin

315

Yes.

Not to.

Now if we could turn to

page 16602.
Yes.
The bottom of the first column,
Article VI.

1(b).
Yes.

Do you see that at the

bottom of the page?

This is the provision that allows a

priority for shutdown
MR.

reactors. Correct? BANES: Obj ection. Calls for
that I s correct.
Strike

a legal conclusion.
I bel ieve

BY MR. NESLIN:

Did you have - this provision?
MR. BANES:

that.

How

did you expect the Department of Energy to apply

Obj ect

ion.

Calls for

speculation.
BY MR. NESLIN:

Do you understand my question?

2 3

tell you

Unless faced with the issue how we would resolve it. Did you have any cri teria in

I can

I t

mind

for when priori ty would have been accorded to a

C & C COURT REPORTING 0012

541/485- 0111

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 4 of 15

0013

.,;.

) .
Case 1:98-cv-00126-JFM Document 783-4 Filed 04/07/2004 EXHIBIT
ALt,1 I"

Page 5 of 15

Ai

1f-

Jf- 1-1f~tJ)'

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE A TOMI C ELECTRIC COMPANY (98- 126C)(Merow , S. CONNECTICUT YANKEE ATOMIC POWER COMPANY (98- 154C) (Merow , 8.1. MAINE YANKEE ATOMIC POWER COMP ANY (98-474C) (Merow , S.1. FLORIDA POWER & LIGHT COMPANY (98- 483C) (Wilson, J. NORTHERN STATES POWER COMPANY (98-484C) (Wiese, J. DUKE POWER, A Division or DUKE ENERGY CORP. (98-485C) (Sypolt, J. INDIANA MICHIGAN POWER COMPANY (98-486C) (Hodges, J. SACRAMENTO MUNICIPAL UTILITY DISTRICT (98-488C) (Yock, 8.1.
SOUTHERN NUCLEAR OPERATING COMPANY,

et at

(98- 614C) (Merow , S.1. COMMONWEALTH EDISON COMPANY (98- 621C) (Hewitt, J. BOSTON EDISON COMPANY (99-447C) (Allegra, J. GPU NUCLEAR , INCORPORATED (00-440C) (Bush, J. WISCONSIN ELECTRIC POWER CaMP ANY (00-697C) (Merow , S.1. POWER AUTHORITY OF THE STATE OF NEW YORK
(00- 703C) (Damich , 1.)

OMAHA PUBLIC POWER DISTRICT (01- 115C) (Bush, J. . NEBRASKA PUBLIC POWER DISTRICT (01- 116C) (Sypolt, J. TENNESSEE VALLEY AUTHORITY (01- 249C) (Broggink, J.

Plaintiffs

THE UNITED STATES
Defendant.

Discovery Judge:
(Judge Sypolt)

0014

---.-... -..... ....-....... .--......,Case 1:98-cv-00126-JFM Document 783-4 Filed 04/07/2004 Page 6 of 15

NOTICE OF DEPOSITION
PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the Rules of the Court of
Federal Claims and the Order of the Discovery Judge dated March 25, 2002 , counsel for the
above-referenced Utility Plaintiffs will take the deposition of Defendant' s designated

representative at 9:30 a. m. on Wednesday, April 24 , 2002, at the law offices of Jenner & Block

601 Thirteenth St., NW , Suite 1200 South, Washington, DC 20005. The deposition will be
recorded by stenographic means and will continue day to day until completed.

Defendant' s designated representative will be examined with respect to the matters set

forth in the attached exhibit.
Dated: April 18 ,

2002

Respectfully submitted

Alex D. Tomaszcm

ffA-.

SHA W PITTMAN LLP
1650 Tysons Boulevard
McLean, V A 22102-4859 Telephone: 703. 770. 7940 Fax: 703. 770. 7901

1r-

Counsel of Record for Plaintiffs Florida Power & Light Company, Northern States Power Company, Duke Power, Indiana Michigan
Power Company, Boston Edison Company, GPU

Nuclear , Inc., Power Authority ofthe State of New York , Omaha Public Power District , and Nebraska Public Power District
OF COUNSEL: JayE. Silberg Devon E. Hewitt ' Daniel S. Herzfeld Jack Y. Chu SHAW PITIMAN LLP 2300 N Street , N. Washington , DC 20037- 1128

0015

j(.
Case 1:98-cv-00126-JFM Document 783-4

('.

.#.- -.

...
..

(~. ! '-../

' .: ( "'

Filed 04/07/2004

Page 7 of 15

M. Stanti d Blanton Balch & ingham , LLP

~trz
I'

1710 Sixth Avenue North Binningham, AL 35203 Tel: (205) 251- 8100 Counsel of Record for Plaintiff: Southern Nuclear Operating Company, et at

rLW
Richard C. Johnson Jenner & Block

4~j
0~

601 13lh Street , N.
Suite 1200 South Washington , D. C. 20005 Tel: (202) 639-6075 Counsel of Record for Plaintiff: Commonwealth Edison Company

M-t!~

Richard W. oehler Perkins Coie LLP 1201 Third Avenue, 40'h Floor Seattle, WA 98101- 3099 Tel: (206) 583- 8419

::J-c,

Counsel of Record for Plaintiff: Wisconsin Electric Power Company

MelvinC. Garbow

Arnold & Porter
555 Ith Street , N. Washington , D. C. 20004- 1206 Tel: (202) 942- 5666 Counsel of Record for Plaintiff: Sacramento Municipal Utility District

0016

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 8 of 15

PeterGeneral Counsel . K. Shea Office of
Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, TN 37902- 1401 Tel: (865) 632- 7319 Counsel of Record for Plaintiff: Tennessee Valley Authority

S4-~

0017

~.

.... ... ........

,. . '

.--.

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 9 of 15

EXHIBIT
3. DOE' s responses to DCS forms submitted by the utility plaintiffs , including DOE' to stop approving such DCS forms.
consideration ofits obligation to accept Greater-Than- Class-

s decision

5. DOE' s

C waste.

7. The date

that DOE currently believes that it will begin accepting fuel under the Standard Contract and the acceptance rate that DOE is planning to use once acceptance begins.

9. The

role and purpose of the provision on priority for shutdown reactors in the performance of the Standard Contract.

0018

...
Case 1:98-cv-00126-JFM Document 783-4 Filed 04/07/2004 Page 10 of 15

CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of April 2002 , I caused a copy of the foregoing

NOTICE OF DEPOSITION to be served by facsimile and by U. S. mail , postage prepaid, on:

Harold D. Lester, Jr.
Assistant Director

Commercial Litigation Branch Civil Division United States Department of Justice Washington, D. C. 20530
Attention:

Classification Unit

th Floor, 1100 L Street, N.

~J;

Document": 1180086 v.

0019

: "::

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 11 of 15

Susan Klein (vol
Page 275
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY
(98- 126C) (Merow,
CONNECTICUT YANKEE ATOMIC POWER COMPANY

MAINE YANKEE ATOMIC POWER COMPANY (98- 474C)(Merow, S.
FLORIDA POWER

(98- 154C) (Merow,

S. J..)) S. J

NORTHERN STATES POWER COMPANY
(98- 484C)
(Wiese, J.

(98- 483C)

& LIGHT COMPANY

(Wilson, J.

DUKE POWER, a Division of DUKE ENERGY CORP.

INDIANA MICHIGAN POWER COMPANY
(98- 486C) (98- 488C)
(Hodges, J.
(Yock, S.

(98- 485C)

(Sypolt, J.

SACRAMENTO MUNICIPAL UTILITY DISTRICT
SOUTHERN NUCLEAR OPERATING COMPANY, et

COMMONWEALTH EDISON COMPANY

(98- 614C)(Merow, S.

ale

BOSTON EDISON COMPANY
(00- 440C) (Bush, J. WISCONSIN ELECTRIC POWER COMPANY : (00- 697C)(Merow, S.
POWER AUTHORITY OF THE STATE OF NEW YORK

(98- 621C)

(Hewitt, J.

GPU NUCLEAR, INCORPORATED

(99- 447C)

(Allegra, J.

VOLUME

OMAHA PUBLIC POWER DISTRICT
NEBRASKA PUBLIC POWER DISTRICT Discovery
(01- 115C)
(Bush, J.

(00- 703C)(Damich ,

J.

TENNESSEE VALLEY AUTHORITY : (Judge
(01- 249C)(Bruggink, J.

(01- 116C)

(Sypolt, J.

:Judge:

Plaintiffs,
0020

:Sypolt)
: PAGES :275 - 533

Esquire Deposition Services

800-441-3376

.'

- - -- - - - ----

- - - - - -- - -- --- - -------- ---- -- - -Document 783-4 Filed 04/07/2004 Page 12 of 15

Case 1:98-cv-00126-JFM

Susan Klein (vol
Page 276
. ..1

THE UNITED STATES,

Defendant.

Deposition of Susan Klein
Washington, DC

T~ursday, April 25, 2002

Reported by:
JOB NO.

Denise Dobner Vickery, RMR , CRR

144540
0021

Esquire Deposition Services

800- 441-3376

,,:.

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 13 of 15

Susan Klein (vol
Page 516
Under the standard

contract; that. s

correct.

Under . the standard contract.

And so DOE' s

consideration of granting priority at this time

is --

would you describe it as being

premature?
we reserve the right to

I guess

it. s just that

do it if we had a huge repository and we Gould meet

everybody

s need and it might seem to be a reasonable
So, I mean, we may determine once we' re

. thing to do. operational.

You haven' t prejudg ed and foreclosed the
possibility; is that fair to

say?

That. s

fair to

say.

If . the

repository were operating at such a

rate that granting priority would not harm operating utilities, DOE would consider granting a priority to a
shutdown reactor.

Is that also fair to say?

I think

that. s fair

to say, yes.

MR. MACDONALD:

48.

(Thereupon, the reporter marked for

identification Deposition Exhibit
BY MR. MACDONALD:

No. 48.

Ms. Klein, I I ve handed
Esquire Deposition Services

you a document marked

0022

800- 441-3376

:')

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 14 of 15

Susan Klein (vol
Page 524
My question

is:

Was the reason this

provision was included, the prio~ity shutdown
provision, that is because it was necessary to prevent
reactors from waiting 20 or 30 years to be

decommis s ioned?

A.

Yes.
And DOE included this provision despite the

fact that four commenters recommended .the

deletion of

the provision?

Yes, that I s correct.
And as you explained I believe earlier,
acceptance of fuel from a shutdown reactor would allow

that reactor to go to green fields I believe is the

word that you used; is that correct?
Yes, it would.

In most cases, it would allow

them to go to green fields, yes.
If DOE had begun accepting fuel in 1998 at a

000 MTU rate or a ramp-up, a reasonable ramp-up to a
000 MTU rate, do you have an opinion as to whether

DOE could have given priority to shutdown reactors

without harming or prejudicing the rights of operating

utilities.
Esquire Deposition Services

0023

800-441-3376

. " ,..

Case 1:98-cv-00126-JFM

Document 783-4

Filed 04/07/2004

Page 15 of 15

Susan Klein (vol
Page 525
MS. POWELL:

Object to beyond the

scope,

but you can

answer.
THE WITNESS:

It could have

given.

think that would be policy considerations that would be
looked at, but it would make it certainly -BY MR. MACDONALD:

Would have made it easier?

Much eas ier, yes.
(Discussion off the record.

(Thereupon, the reporter' marked for
identification Deposition Exhibit
BY MR. MACDONALD:

No. 50.

Ms. Klein,

I' ve just

marked -- had marked for

you Exhibit 50, which is a memo dated June 28, 1991
from P. N. McDuffie and S. A. Vance to D. C. Langstaff
and A. B. Brownstein.

Do you have that there before

you?
Yes, I do.

I believe we discussed earlier Mr. Vance,
Scott Vance, who you know; is that right?

That. s

correct.

And Mr. A. B. Brownstein is Alan
Esquire Deposition Services

Brownstein;
800- 441-3376

0024