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

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 1 of 11

REVISED APPENDIX
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

Plaintiff
No. 98- 126 C

(Senior Judge Merow)

UNITED STATES OF AMERICA
Defendant.

APPENDIX TO YANKEE ATOMIC' S OPPOSITION TO GOVERNMENT' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PRIORITY FOR SHUTDOWN REACTORS

JERRY STOUCK Spriggs & Hollingsworth 1350 I Street , N. , Ninth Floor Washington , D. C. 20005 (202) 898- 5800 (202) 682- 1639 - Fax

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY

Of Counsel:
Robert Shapiro

SPRIGGS & HOLLINGSWORTH
April 07 , 2004

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

............ ........ ................... ................... ............ ......... .... ... .......... .............. ......... .................. """"""
Page 2 of 11

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

INDEX TO APPENDIX

Description

Pae:e

Yankee Atomic s Response to Defendant' s July 3 2003 IntelTogatories , Request for Admission and Requests for
Production Documents (Excerpts).

0001

Deposition Transcript of Robert L. Morgan (3/21/02 3/22/02) (Excerpts)..... ...

0010
0013

Picture of Yankee Atomic s Independent Spent Fuel Storage Installation (ISFSI)..
Rule 30(b)(6) Notice of Deposition of Susan Klein (4/18/02)..

0014
0020

Deposition Transcript of Susan Klein (4/25/02) (Excerpts)........... ......

Spent Fuel Acceptance Scenarios Devoted to Shutdown Reactors: A Preliminary Analysis , September 1989 (P A- 165043 to P A- 165091)............................... .... 0025

Deposition Transcript of John W. Bartlett (8/26/03) (Excerpts).............
Standard Contract Issue Resolution Process: An Overview and Status (HQOOI0I03 to HQOOI0118)....... ... ...

0074

0083

Deposition Transcript of Nancy Slater- Thompson (6/13/2002) (Excerpts).................... . 0091

Deposition Transcript of Billy M. Cole (3/13/2002) (Excerpts)....................
Deposition Transcript of Lake H. Barrett (5/15/2002) (Excerpts).. .....

0096

0104

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 3 of 11

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC
COIvIP ANY

Plaintiff

: No. 98- 126C

(Senior Judge Merow)

UNITED STATES OF AMERICA

Defendant.

YANImE ATOMIC' S RESPONSE TO DEFENDANT'S JULY 3, 2003
INTERROGATORIES, REQUESTS FOR ADMISSION AND REQUESTS FOR PROPUCTION OF DOCUMENTS
Pursuant to RCFC 26 , 34 and 36 arid the Court' s August 29 , 2003 Orde~, Yankee Atomic
Responses to Defendant' s July 3 2003 Interrogatories , Requests for Admission and Requests for

Production of Documents responds as follows:

General Responses and Objections
The following general responses and objections to the requests are incorporated by
reference into each of Yankee Atomic s responses set forth below. Yankee Atomic s answers to
interrogatories , responses to requests for admission and production of documents are subject to

these general objections regardless of whether Yankee Atomic agrees in individual responses . below to answer interrogatories or produce documents notwithstanding additional objections
noted in such individual responses.
. Yankee Atomic objects to the defendant' s instruction at page 1 , which purports to

require Yankee Atomic to supplement its responses to the Interrogatories and Requests " fi.-om
time to time , but not later than 10 days after such additional information has been obtained.

0001

""
Case 1:98-cv-00126-JFM

""
Document 783-3

""
Filed 04/07/2004 Page 4 of 11

INTERROGATORY NO. 17: State whether you contend that DOE has an obligation to give priority in the

allocation of acceptance slots for, or in the acceptance of, SNF and/or HL W to Standard Contract
holders that shut down any or all of their nuclear reactors.
State whether you contend that DOE would ever have a duty to accord priority in
the allocation of acceptance slots for, or in the acceptance of, SNF and/or HL W to Standard

Contract holders that had shut down any or all of their nuclear reactors.

State whether you contend that any Standard Contract holder that has already shut
down any or all of its nuclear reactors is entitled to priority in DOE' s allocation of acceptance
slots for, or in the acceptance of, its SNF and/or HLW.
State whe~!1er you contend that DOE would ever have an obligation to refuse to

grant priority in the allocation of acceptance slots for, or in the acceptance of, SNF and/or HL W
Standard Contract holders that had shut down any or all of their nuclear reactors.
OBJECTIONS:

Yankee Atomic objects that the phrases " an obligation to give priority,
have a duty to accord priority, entitled to priority,

would ever

would ever have an obligation to refuse to

grant priority, " and "the allocation of acceptance slots are vague.
ANSWER:

Notwithstanding the objections noted above , Yankee Atomic states as follows: The
answer to subparts A and D is no.

Regarding subparts B and C, Yankee Atomic contends that

DOE would have had a duty to accord priority in the acceptance of spent fuel and HL W fi.-om

utilities that have permanently shut down reactors , if such priority were necessary to avoid a
situation where the utility would otherwise have to store spent fuel and HL Won-site for an

0002

.. ,

,',

Case 1:98-cv-00126-JFM
0 .. ;

Document 783-3

Filed 04/07/2004

Page 5 of 11

extended period of time. In

its damage claim; Yankee Atomic contends that if DOE had

performed its obligations to accept SNF and HLW at a reasonable rate starting in 1998 , utilities with shut down reactors would have been able to have exchanged acceptance allocations such

that the grant of priority in the acceptance of spent fuel would not have been necessary. Yankee
Atomic contends further that if the market for exchanges of acceptance allocations would not
have sufficiently developed in the non-breach world to enable such prompt removal , DOE would
have granted priority acceptance to utilities with permanently sQut down reactors to the extent necessary to ensure such prompt removal.

0003
17a

. .

""

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 6 of 11

INTERROGATORY NO. 18:

To the extent that plaintiff contends that DOE would have a duty to grant priority in the allocation of acceptance slots for, or in the acceptance of, SNF and/or IlL W to Standard Contract

. holders that have permanently shut down any or all of their nuclear reactors , or to the extent that

plaintiff contends that any Standard Contract holder that has already shut down any or aU
nuclear reactors is entitled to priority in DOE' s allocation of acceptance slots for, or in the
acceptance of,

oftheir

its SNF and/or IlLW, explain in detail all the legal and factual bases upon which

you base this contention, making sure to:

identify any and all documents that support, or detract from, your contention;

identify all persons with knowledge regarding plaintiffs contention and regarding
priority for Standard Contract holders with shut down reactors;

explain the source of each person s knowledge regarding this contentipn; and
identify all documents that support and/or relate to your response to this
interrogatory.
OBJECTIONS:

Yankee Atomic objects that the phrases "duty to grant priority,

entitled to priority,

allocation of acceptance slots," "explain in detail all the legal and factual bases," "that support
or detract ITom " and " that support and/or relate to your response" are vague. Yankee Atomic

also objects that subparts a. and. d. are unduly burdensome.
ANSWER:

Notwithstanding the objections noted above , Yankee Atomic states as follows:
Yankee Atomic s contention regarding priority is set out in its answer to Interrogatory No. 17.

The bases for this contention are as follows. At the time of formation of the parties ' contract , the

0004

, ,

...

"'" ;,-'

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 7 of 11

parties intended that after January 31 , 1998 , Yankee Atomic would not have to incur additional
costs for on-site storage of spent fuel and HL W. . The parties ' contract provides , in Article

VI. B.l. (b), for priority acceptance by DOE of spent fuel and/or HL W removed from a

conunercialreactor that is permanently shut down. At the time of formation of the parties
contract , the parties understood and intended that DOE would implement this article, if and as

necessary to enable DOE to avoid imposing on utilities incremental and avoidable costs for on-

site storage of spent fuel and HLW. Indeed, when it drafted the parties ' contract , DOE rejected
requests by certain utilities to omit this article, explaining "(t)his type of priority is necessary to
prevent reactors fi.-om waiting 20 or 30 years to be decommissioned after they finish generating

~lectricity. " 48 Fed. Reg. 16590 , 16593 (April 18 , 1983). DOE has never departed fi.-om

this

policy. This policy is consistent with DOE' s obligation fi.-om

the full

cost recovery nature of its

spent fuel and HL W removal program to conduct that program in an economically efficient

manner. Provision of priority acceptance to permanently shutdown reactors is also consistent
with the use of acceptance campaigns for the acceptance of spent fuel. See also

Yankee

Atomic s response to Interrogatory No. 19 of " Yankee Atomic s Responses to Defendant's
Interrogatories and Request for Production of Documents Served on September 4 , 2001."
a. and d.

Documents with the following Bates Numbers: ADM-00I-0961, PNL- 001- 1324, CTROO02657-

cDBO06105cTROO02660b. and co

, HQOOI5562-

, CTROO02716-

, CTROO02662- 715

, cTROO02642- 56.

Loring Mills (who represented the nuclear utility industry when DOE

drafted the parties ' contract), John Buchheit and Rudolph Grube (who represented Yankee

Atomic when DOE drafted the parties ' contract). Ivan Stuart will discuss the advantages of

acceptance campaigns as set out in his expert witness report.

0005
18a

/ "

Case 1:98-cv-00126-JFM
::, I

Document 783-3

Filed 04/07/2004

Page 8 of 11

INTERROGATORY NO. 19:

To the extent that plaintiff contends that DOE would ever have an obligation or the right
if

to refuse to grant priority in the allocation of acceptance slots for, or in the acceptance of, SNF

and/or HLW to Standard Contract holders that had shut down any or all of their nuclear reactors

explain in detail all of the legal and factual bases upon which you base this contention, making
sure to:
a..

identify any and all documents that support, or detract fi.-om, your contention;
identify all persons with knowledge regarding your contention;

explain the source of each person s knowledge regarding this contention; and

identify all documents that support and/or relate to your response to this
interroga!ory.

ANSWER:
Yankee Atomic makes no such contention. '

0006

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 9 of 11

INTERROGATORY NO. 21:

Describe in detail the terms for any obligation that you contend that DOE has to grant
priority in the allocation of acceptance slots for, or in the acceptance of, SNF and/or IlL W if a
Standard Contract holder chose to , or has , permanently shut down any unit or all of its plant, making sure to:

explain the analysis that leads to your conclusion;

identify the schedule that you contend DOE is obligated to follow, if different
from that identified in your response to Interrogatory Nos. 1 , 2 , and 3, above;

identify all documents that provide the basis for your analysis, in particular
regarding scheduling;

identify all persons with knowledge regarding these contentions; ,

explain the source of each person s knowledge regarding these contentions;
identify any assumptions upon which you base your contentions;
identify any documents that support and/or relate to your contentions; .and
identify the factual and/or, legal basis for any assumptions (as identified in

subparagraph f of this interrogatory) that you made.
OBJECTIONS:

Yankee Atomic objects that the phrases "describe in detail
obligation

the terms of any

allocation of acceptance slots," "explain the analysis," " schedule," and

scheduling" are vague.
ANSWER:

Notwithstanding the objections noted above, Yankee Atomic states as follows: Yankee
Atomic s contention regarding the terms of DOE' s duties and obligation to accord priority

0007

. :, ,

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 10 of 11

acceptance of spent fuel and HL W to utilities with permanently shut down reactors is set out in

response to Interrogatory Nos. 17 and 18 above.

See Interrogatory Nos. 17 and 18 above. If DOE would have started accepting
spent fuel at a reasonable rate in 1998 but a market for the exchange of acceptance allocations

did not develop sufficiently to enable prompt removal ofSNF and HLW from permanently shut
down reactors , absent priority acceptance, Yankee Atomic would have had to store its spent fuel
for a significant amount of time. See

Acceptance Priority Ranking dated March 1995

showing Yankee Atomic s last di~charge at a cumulative industry total of23 630 MTU. At the

acceptance rates set out in Frank Graves ' expert witness report , with no exchanges or priority,
Yarikee Atomic s spent fuel would have been accepted in approximately 2007. As shown by the

expert witness report of Ken Wise, Yankee Atomic would have incurred substantial avoidable-

costs storing its spent fuel for this period. As set out in Frank Graves ' expert witness report, in
the non-breach world, DOE would have accepted 1200 MTU of spent fuel in 1998. Thus , DOE

would have had ample capacity to accept Yankee Atomic s 122.4 MTU of spent fuel in 1998.
DOE was otherwise accepting spent fuel but a market for exchanges of spent fuel acceptance
allocations did not develop sufficiently to enable utilities to arrange the timing of DOE'

acceptance oftheir SNF and HLW in an efficient manner, DOE would have ordered the
acceptance of spent fuel from utilities in some reasonably efficient manner that would have
permitted the use of acceptance campaigns. See Expert Witness Reports oflvan Stuart and John

Bartlett. Consistent with its policy of not having spent fuel and high- level radioactive waste
remain at the sites of

permanently shut down reactors for an extended period as noted at 48 Fed.

Reg. at 16593 , DOE would have accepted Yankee Atomic s spent fuel on a campaigned, priority

basis.

0008
21a

Case 1:98-cv-00126-JFM

Document 783-3

Filed 04/07/2004

Page 11 of 11

Yankee Atomic s contentions regarding scheduling are limited to its contentions

regarding when DOE would have accepted its spent fuel absent the breach consistent with a

reasonable acceptance rate. If the market for exchanges of acceptance allocations did not
develop sufficiently to enable prompt acceptance of spent fuel and HL W from permanently shut

down reactors in the non-breach world as otherwise set out in the expert witness report of Frank
Oraves , DOE would have accorded priority acceptance to Yankee Atomic s spent fuel such that

it all would have been accepted by the end of 1998.
c. and g.

The documents relevant to Yankee Atomic s contentions on this issue are

not different than those listed on Yankee Atomic s exhibit list submitted on March 28, 2003.

particular, Yankee Atomic relies on the documents listed in subpart a. above , the documents
listed in response to Interrogatory Nos. 18. a. and 19a. and the documents considered by Yankee

Atomic s expert witnesses, Mr. Graves , Dr. Bartlett and Mr. Stewart.

0009
21b