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

.-'

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

Document 780-8

Filed 04/06/2004

Page 1 of 12
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) (Sypolt, J.

TENNESSEE VALLEY AUTHORITY

(01- 249C)

(Bruggink, J.

Plaintiffs,
Discovery
THE UNITED STATES,
: Judge:

Defendant.
McLean , Virginia

: (Judge
- - - - -xSypol

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
Virginia

the Commonweal th of

taken at the
1650 Tysons

offices of Shaw

Pittman, LLP

0096
Alderson Reporting Company, Inc.
III I 14th Street ,

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

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

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draft.
No.
I wasn'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 wi

th - -

sent it

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

finding.

And when you say it was an equi

If I take fuel away from a shutdown
then I can

I t take

one away from operating if

you I ve only got so much capacity.

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Alderson Kepornng \..-ompauy, Inc.

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

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

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From DOE' s standpoint, if it was fine
with the utilities

it was fine with DOE?

That'
They don'

s right.
s right.

DOE are truck drivers.

t care.

That'

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.

the chairman of that

committee is now a DOE employee, Mr. David

m going to hand you a memo dated
June 28th, 1991 , from Mr. McDuffie and Mr. Vance

to Mr. Brownstein and Mr. Langstaff , and its
subject 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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Billy Cole

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Filed 04/06/2004

Page 4 of 12
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2002

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482

That I S

correct.

Would you turn to the bot tom of page

4, top of page 5?

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

No. 15, acceptance priority for shutdown

reactors?
Um- hm.

And the position has two, it has two
elements, Phase 1 and Phase 2?
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' 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

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

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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

I t know

whatever happened to the resolve of most of

these.
I jus t don' t know.
I can
I t

remember.

And Phase 2 continues there and

says,

quote, when the WMS receipt rate exceeds the

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

need additional add reactor storage, DOE may

elect
shu tdown

allocate acceptance priority to reactors to facilitate the permanent
those sites
That I s
soon as possible?

closure

true.

That was

recommendation , that they consider

that.

Did you have discussions with Mr.

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Alderson Reporting Company, Inc. 1111 14th Street , No w. Suite 400 1- 800-FOR- DEPO Washington, DC 20005

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Billy Cole

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

The development process was going on

prior to this date,
times, and I don

yes.

We have had discussions on this many

I t remember ,

you know,

specifically on this date or this draft, but I'

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 I 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

I 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

I S not going
0101

to have a

Alderson Reporting Company, Inc. 1111 14th Street, No w. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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

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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
to shut itself down

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

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 private meetings

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1111 14th Street, No W. Suite 400 1- 800- FOR- DEPO Washington , DC 20005

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Billy Cole

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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'

part

of the two thirds.

There I 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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- - - - - - - - - - - ...- - - - : . ,
Case 1:98-cv-00126-JFM Document 780-8
Washington , D.

,
Page 9 of 12

Filed 04/06/2004

Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO 1HE PROTECTIVEORDER- YOLUME II May 15 2002

Page 242
;t,,",4:~
, 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC

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

CerIIed Copy
Case No. 98- 126C,
: 98- 47

YANKEE ATOMIC POWER CO.,

Plaintiff$,
vs.
UNITED STATES OF AMERICA,

4C, 98- 154C

: (Senior Judge Merrow)

Defendant.

: VOLUME II

Washington, D . C .

Wednesday, May 15, 2002
, I

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
, O
:::0'

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 780-8
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Filed 04/06/2004

Page 10 of 12

Lake H. Barrett CONTAINS CONFIDENTIAL INFORMATION PURSUANT TO 1HE PROTECTIVE ORDER- VOLUME II May 15, 2002

Page 363

Is that a fair characterization?

Yes. Okay.

Number 1, " Granting

priority can

be shown to be lest costly to DOE

I S waste

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

Objection.

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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Filed 04/06/2004

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Lake H. Barrett CONTAINS CONFIDEN'I1AL INFORMATION PURSUANT TO 1HE PROTECTIVE ORDER- VOLUME II May 15, 2002

Page 364

priority 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:

Objection.

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 utilities?

other words, there is no play in the

system.

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

unders tanding?
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

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

20005

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Lake H. Barrett CONTAINS CONFIDEN'I1AL INFORMATION PURSUANT TO 1HE PROTECTIVE ORDER- VOLUME II May 15 2002

Washington, D.
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.
abou t .

And Number 5 is an overall

policy issue which I think we have also talked

Okay.
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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