Free Notice (Other) - District Court of Federal Claims - federal

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007

Page 1 of 10
April 10, 2002

McLean, VA P~e 242

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
-X

YANKEE ATOMIC ELECTRIC COMPANY (98-126C) (Merow, S.J.)

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CONNECTICUT YANKEE ATOMIC POWER COMPANY (98-154C)(Merow, S.J.)
FLORIDA POWER & LIGHT COMPANY (98-483C) (Wilson, J.) NORTHERN STATES POWER COMPANY DUKE POWER, A Di;visibn of DUKE ENERGY CORP. :bI:NDI~"MICHIGAN~ POWER'~ COMPANY"
.!.'.'.,'..~'r. ,,: "

i0' . ..i9~/~8~C) (Wiese, J. )

: :

MUNiCiPAL UTILITY D I S TRI CT
17... (98-488C) (Yock, S.J.) 18 19 20 21 22 23 24 25 -SOUTHERN NUCLEAR OPERATING COMPANY, et al. (98-488C) (Yock, S.J.) COMMONWEALTH EDISON COMPANY (98-621C) (Hewitt, J. ) BOSTON EDISON COMPANY (99-447C) (Allegra, J.) GPUNUCLEAR, INCORPORATED
Alderson Reporting Company, Inc. 1 '11 ! 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007

Page 2 of 10
April 10, 2002

McLean, VA
Page 243 1 (00-2[40C)(Bush, J.) : : 2 WISCONSIN ELECTRIC POWER COMPANY : 3 (00-697C)(Merow, S.J.) 4 POWER AUTHORITY OF THE STATE OF NEW YORK : : 5 (00-703C)(Darnieh, J.) : 6 OMAHA PUBLIC POWER DISTRICT : 7 {01-115C)(Bush, J.) : 8 NEBRASKA PUBLIC POWER DISTRICT : 9 (01-116C)(Sypolt, J.) : l 0 TENNESSEE VALLEY AUTHORITY : 11 (O1-249C)(Brnggink, J.) 12 Plaintiffs, : :Discovery 13 v. :Judge: 14 THE UNITED STATES, Defendant. :(Judge. 15 16 .............. z ...... xSypolt) 17 McLean, Virginia 18 Wednesday, April 10, 2002 Continued deposition of ALAN 19 20 BROWNSTEIN, a witness, re~alled for examination 21 by counsel for Plaintiffs in the above-entitled 22 matter, p .tn~suant to notice, the witness being 23 previously duly sworn by CATHERINE S- BOYD, a ¯ 24 Notary Public in and for the Commonw~Ith of: .." :. i' ,. :.;_ ':. ! 25 Virginia, taken at the offices of Shaw Pittman,
Page 245

1 APPEARANCES: 2 3 On behalf of the Plaintiffs Florida Power & 4 Light Company, Northern States Power Company, Duke Power, Indiana Michigan Power 5 6 Company, B6ston Edison Company, GPU 7 Nuclear, Incorporated, Power Authority of 8 the State of New York, Omaha Public Power 9 District, Nebraska Public Power District: 10 ALEX D. TOMASZCZUK, ESQ. 11 DANIEL S. HERZFELD, ESQ. 12 " Shaw Pittman, LLP 1650 Tysons Boulevard 13 14 McLean, Virginia 22102-4859 !5 (703) (770-7901) 16 On behalf of Plaintiff Sacramento Municipal 17 18 Utility District: 19 DAVID S. NESLIN, ESQ. ..." 20 Arnold & Porter 21 ... 370 Seycnteenth Street, Suite 4,500 22 : Denvei-,":Colorado 80202-1370 23_ (.3.Q.3.) 8..6.3-2. 30! .............

r2 . 22102-4859, at 9:26 a.m,~/~day, Ap'dl 1(~,' ' .3 2002, and the proceedings being taken down by "4 Stenotype by CATHERINE S. BOYD and trahsefil~ed ' 4 .... "~eo~a Pow~ Comply: ] $ under her direction ........................ .5 .... :. .I'.~.: :": ;...: .' .. ..... : . :6 7 555 Twel~ S~et, N.W. 7 8 8 W~NnNun, D.C. 20004-1206 9 (202) 942-6101 9 10 10 ~ behalf of Plain~ffWisconsin EleeMe 11 11 12 12 Power Company: 13 13 DONALD J. CAGEY, ESQ. 14 14 Perks Coie, LLP 15 15 607 Fo~een~ S~eet, N.W. 16 Washin~on, D.C. 20005-2011 16 17 17 (202) 43~ 1675 18 18 On behalf of Plaintiff Commonwealth Edison 19 19 Comply: 20 20 21 21 NO,AN M. ~RSCH, ESQ. 22 Jenner & Block, LLC 22 One IBM Plea 23 23 24 24 Chicago, Illinois 60611-7603 25 25 (312) 222-9350

2 (Pages 243 to 246) Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

Case 1:98-cv-00484-JPW
Ala~ Brownstein

Document 298-5

Filed 03/27/2007

Page 3 of 10
April 10, 2002

McLean, VA
Page 387 Page 389

1 somewhere. (There was a pause in the 2 3 proceedings.) 4 THE WITNESS: Okay. 5 BY MR. BANES: Q. Let's see. Turn to page, there is a 6 7 Bates stamp number the bottom. It says ADM-001, 8 . and then I'm going to use that last four digits 9 if you could turn to page 660 for a moment in 10 Exhibit 1 ? 11 A. Okay. 12 Q. Mr. Tomaszezuk was asking you several 13 questions about the Delivery Commitment 14 Schedules and how they related to the contract. Do you remember that testimony? 15 A. Yes. 16 17 Q. Turn to paragraph or Article V.B 18 that's located down there on this page 660. 19 A. Okay. 20 Q. Was this the paragraph you were 21 talking about earlie~ that was the basis for 22~.. DeliveryCommitment Schedule instructions? 23 .A. Yes. .',.:. !~:! ;i. "24:r~ ~:-,:,QL..Now.tumingto.wh~r~ it says beginning t';[25~i:~aMRtffOMASZ~ZUt~bMt', Brownaein, at 25 January 1st, 1992, purchaser,shall.~abmit':to~OE 1 Energy's plans for nuclear waste at Yucca 2 Mountain? 3 A. What time period are you referring to? Q. March 14th of this year. 4 5 A. No. 6 Q. Did you ever discuss that testimony 7 with Mr. Barrett? 8 A. Not that I recall. Q. Doyou know Whether Mr: Barrett 9 10 testified on the Hill on March 14th? 11 A. I believe he did. 12 Q. And what do you know about that 13 subject? 14 A. I wasn't involved in the preparation 15 of that testimony, and I don't believe I 16 actually reviewed, reviewed that testimony. ' ' I wasn't involved in that one at all. 17 18 (There was a pause in the 19 ~: proceedings.) ... 20 BY MR. TOMASZCZUK:~ 211 '.,~.:~ :.Q. :.Give me just a ~eeond, okay?

4 time and your cooperatiori.,tl ~very much~t .. !
6 I know it has been a long day and a ' 7 half, and I need to adjOurn the deposition "8 ..,.because them are some documents which we 9 : believe Still have not been.produced that may 10 bear upon your teStimony, so I reserve the right 11 to call you back if and when those documents are 12 produced, and that includes but are not limited 13 to documents on a privilege log that the 14 government has provided to us, but at this time, 15 I have no further questions, and I adjourn 16 subject to those conditions. THE WITNESS: Okay. 17 MR. BANES: We reserve the right to, 18 19 we reserve the right to object to reopening, so 20 with that, I'm going to ask a few questions. EXAMINATION BY COUNSEL FOR DE~ENDANT 21 22 BY MR. BANES: 23 Q. So Mr. Bmwnstein, let's see here if 24 you could just get out Exhibit 1. 25 It's the contract. It's in there

¯ - " " " "i ."[Pag~ 390 :,0~41i.~~ ~the~Deli,)eiy, C-. ommitmenti~di~dules ~i:'s~edule ~t~.'~';b ',iiv~eh~shall; identify,.~l '.SNlq~ ~:HlzW the 3 purchaser Wishes todeliv~:~eginning 63 m, onths ~::4 !!~ thereafter~!,.', :~' li:':/~,~':: .5.1 I"- ! ' 5 Now can you tell ino; cruld you jusV~ ¯ 6 '.-eXplain for me how you interpreted that 7 paragraph and how it translated into the 8 Delivery Commitment Schedule instructions? MR. TOMASZCZUK: Objection. It's 9 10 compound, calls for a legal conclusion. 11 (The witness reviewed the document.) THE WITNESS: I combined that 12 13 paragraph with Appendix C of the contract. 14 BY MR. BANES: Q. Okay. And did you believe that the 15 16 delivery - let's take a look at the Delivery 17 Commitment Schedule. Pull that out for a 18 minute. That was Exhibit 34. 19 A. Yes. Q. Did you believe that those, Exhibit 34 20 21 was consistent with the provisions of the 22 contract regarding Delivery Commitment 23 Schedules? 24 A. We used the Appendix C as a basis for 25 that, yes.

38 (Pages 387 to 390) Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007
April 10, 2002

Page 4 of 10

McLean, VA
Page391 Page 393

1 convey that to the purchasers? Q. Okay. Now with respect to when a 1 2 A. Idid. 2 purchaser would submit a Delivery Commitment 3 Q. All right. Now let's take a look 3 Schedule, let's say a purchaser wanted to, 4 at-4 pursuant to this para~aph B on the contract, 5 ~ere was a pause.in the 5 Article V.B., ira purchaser wanted to deliver 6 proceedings.) 6 SNF beginning in say 1998, when would they have 7 BY MR. BANES: 7 to submit a Delivery Commitment Schedule? Q. Okay. With respect to, with respect 8 8 A. It's clear in our mind you would have 9 to the rates, acceptance rates contained in each 9 to subtract 63 months from that date. 10 of these documents we have looked at, I think 10 Q. Okay. Now if they didn't want to, if 11 that you testified earlier that they were 11 a purchaser did not want to deliver any SNF in 12 1998, would they have to submit a DCS 63 months 12 subject to a whole host of assumptions,, is that 13 correct? 13 prior to that? 14 A. Yes. 14 A. No. It states that purchaser shall 15 Q. Now so let's take a look at Exhibit 6 15 identify all SNF and/or HLW the purchaser 16 and go to Table 2 dash 1 or2.1 on page 7. 16 wishes, emphasize wishes, to deliver to DOE 17 (There Was a pause in the 17 beginning 63 months thereafter. 18 proceedings.) 18 Q. So but was this, was the submission of .THE WITNESS: Okay. 19 19 a DCS a prerequisite, pursuant to the contract BY MR. BANES: .~ 20 in your opinion, was submission ofa DCS a 20 ~ 2.1 :.:. Q. :Now on page 7 of this document, there 21 prerequisite to acceptance of a purchaser's 22 .,, is a, there is what purports to be called. 7 22 spent nueJear fuel? .: A. ~. In my mind, it was... ~,~'. 23 i., .'illustrative waste acceptance schedule..., i 23 :',:~...:.~...~And,then.atthe top thereit says the, 24 24 Q.' And was that pursuant to this, was it -.25 ,; Jwaste a~x~'ptanee ~h&lul~,~or excuse me ~ this 25 a prerequisite 63months prior to the date they ~age 394 1 schedule is only an appro.ximation~ approximation ~:~ of how.the s~StOn"ma~ 6p~Fate and is subject to

!Page 392',

.1 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25

wished delivery to :oeeur?~ :..., ..~'.. MR. TOMASZCZUK: Objection to'.the -i don't know what ','this" is. "; ~.:- BY MR. BANES: ~... Q. Was it, was such a, was such acceptance of spent nuclear fuel a prerequisite, or was submission of a DCS 63 months prior, in your opinion, a prerequisite to DOE's acceptance pursuant to the contract to such spent nuclear fuel? A. Yes. Q. All right. Now if a, ifa utility . _ decided not to submit a DCS - well, s(rike that. If a utility - let's see. Prior to, I think you testified earlier prior to acceptance of spent nuclear fuel, who in your opinion was responsible for this, for storage of the spent nuclear fuel? A. I thinkit is in my mind, and based on several documents, it is dear that the utilities remained responsible until DOE accepted it. Q. In the documents you prepared, did you

3 uncertainties that,are:reeognized in the mission 4 plan. '?'.b~/..~.q !,~i~:-... '/~3 '- I 5 ',: ~.' i:,.~ Why did you~.inelude that language ~ ifi 6 ' this Annual Capacity R~port? ¯ A. We knew that there were, you know, at 7 8 different times in the program, you know, 9 . whether there were legal restrictions, we 10 certainly knew that there were challenges, and 11 o We wanted to make it dear to the utilities and 12 everyone understood that we were at the early 13 stages, and these were our best projections at 14 the time, and we tried to be dear over the 15 years of why, and, and that they were subject to 16 change. Q. In your opinion, with respect to Table 17 18 2 dash 1, would it be appropriate to read 2.1 in 19 this 1987 Annual Capacity Report without reading 20 the entire document? A. Well, I believe it's always 21 22 inappropriate to pull out any.excerpt from a 23 document. A document's prepared. All words have 24 25 meaning, and should be read in the context of
39 (Pages 391 to 394)

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

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007

Page 5 of 10

April 10, 2002 ¯ McLean, VA
Page 399
Page 401

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proceedings.) MR. BANES: Okay, sir. Just a second here. (There was a pause in the proceedings.) BY MR. BANES: Q. Okay. Turn to Exhibit 26 for a minute, sir? A. I really need to organize this. If these are going to be the subjects of questions, I have to get them in some order. Twenty-six, I've got it. Q. Okay. Okay. All right. Turn to Exhibit 26. Let's go back to that paragraph you were discussing with Mr. Tomaszezuk. It starts the publication of the ACR, APR. If you would just read that entire paragraph for me? You don't have ~o read it outloud. You can read it to yourself. A. Thank you. .' i (The witness.reviewed the document.) THE WITNESS: Okay. " . ¯ : BY.MR. BANES:

1 A. Yes. 2 Q. Did that, did that chart lay out what 3 this process, this process was supposed to be 4 from the beginning of the contract all the way 5 to acceptance and delivery? 6 A. That was, that was its intent. 7 Q. And looking at this, we just I guess 8 won't mark it, but MR. TOMASZCZUK: I'm going to come 9 10 around. 11 THE WITNESS: If we're going to do it, 12 could we move it closer? 13 This is not the easiest thing in the 14 world to read. 15 Can you see it from here? 16 (A discussion was held offthe 17 record.) BY MR. BANES: 18 19 , Q. All right. Now I wanted to ask a 20 little bit about the mechanics of the chart? 21 A. You understand I haven't seen this in, t 22 I haven't looked at this in yearn, 23 Q.. Can you.tell ~vhere the'Annual Priority 24 Ranking first appears, or.that let's starttwith ~ 25 ,,i .Abe' Annual. Capaoity.Report. ~)

ilaage 402 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '~'.i t~ b~.,'~f,':,Wh~rois that,?. i.,~ Q. All right. Now in the statement' ¯ :2.~',,5: c:A..:v~That's right there.:' there, I think Mr. Tomaszezuk asked you what you meant by the publication of the APR begin~ the 3 .' ', ', .:.Q, - ,Let the record reflect.that.the ,':~ ti '~.witness is pointing toga b0x that has the nu~aber contractually binding waste acceptance process. '5 ':: .~060 in.the upper left-handcomer. ' Does the remainder of that paragraph refresh your recollection what, why that wo'~d 6 ~ And on the far left of the chart, ,~ begins is there? 7 towards the far left of the chart, now there is A. Well, in my mind, the contract laid 8 ....a dark line here.. A. Right. 9 out a process, as I have testified, beginning Q. What is that dark, what is that dark with the ACR, ACR following with the APR, to be 10 followed by the DCS to be followed by the FDS. 11 line supposed to represent? Annual Capacity 12 Report and Annual Priority Ranking? That's what I was referring to. 13 A. The dark line under the legend Q. Okay. And all right. So as far as 14 indicates the optimum path. this contractually binding waste aeceptanee The whole chart is divided basically 15 process, were you referring to all of that process, or just the APR? 16 into two parts which is, which is the first part 17 is if everything went right, this is, this is A. No. Begin the process, the APR was 18 how the process would go. the sort of the second step, well, the first 19 And then there were, there were other step in the process leading to the FDSs, which 20 possibilities, other things that could go, other is the last step leading to the, to the actual 21 things that could happen, and what I had asked aceeptanee. Q. And with respect to the process, while 22 the contractor to do was to lay out all those 23 other things that could happen and it hasn't been marked as an exhibit, Mr. Tomaszczuk showed you the what has been kind of 24 contingencies, and that's what they tried to do referred to as the Starship Enterprise chart? 25 here. 41 (Pages 399 to 402) Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007
McLean, VA

Page 6 of 10
April 11, 2002

Page 467

1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
X

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YANKEE ATOMIC ELECTRIC COMPANY (98-126C) (Merow, S.J ) CONNECTICUT YANKEE ATOMIC POWER COMPANY (98-154C) (Merow, S.J.) FLORIDA POWER & LIGHT COMPANY (98-483C) (Wilson, J.) NORTHERN STATES POWER COMPANY (98-484C) (Wiese,J.) DUKE POWER, A Division of DUKE ENERGY CORP. (98-485C) (Sypolt, J. ) INDIANA MICHIGAN POWER COMPANY (98-486C) (Hodges, S. ) SACRAMENTO MUNICIPAL UTILITY DISTRICT (98-488C) (Yock, S.J.) SOUTHERN NUCLEAR OPERATING COMPANY, et al. (98-488C) (Yock, S.J.) COMMONWEALTH EDISON COMPANY (98-621C) (Hewitt, J.) BOSTON EDISON COMPANY (99-447C) (Allegra, J.) GPU NUCLEAR, INCORPORATED
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-00484-JPW
an Brownstein

Document 298-5

Filed 03/27/2007

Page 7 of 10

April 11, 2002 McLean, VA
Page 468
Page 470

1 (00-440C)(Bush,J.) : : 2 WISCONSIN ELECTRIC POWER COMPANY 3 (00-697C)(Merow, S.J.) : 4 POWER AUTHORITY OF THE STATE OF NEW YORK : 5 (00-703.C)(Damich, J.) : 6 OMAHA PUBLIC POWER DISTRICT : 7 " (01-115C)(Bush, Jo) : : 8 NEBRASKA PUBLIC POWER DISTRICT 9 (0.1-116C)(Sypolt, J.) : 10 TENNESSEE VALLEY AUTHORITY : tl (01-249C)(Bruggink, J.) : 12 Plaintiffs, : :Discovery 13 v. :Judgg: 14 THE UNITED STATES, :(Judge 15 Defendant. xSypolt) 16 .... 17 McLean, V~rg~ma 18 Thursday, April 1 I, 2002 Continued deposition of ALAN 19 20 BROWNSTEIN, a wimess, recalled for examination 21 by counsel for Plaintiffs in the above-entitled 22 matter, pursuant to notice, the wimess being 23 previously duly sworn by CATHERINE S. BOYD, a 24 Notary Public in and for the Commonwealth of25 Virginia, taken at the offices of Shaw Pittman,

1 APPEARANCES: 2 3 On behalf of the Plaintiffs Florida Power & 4 Light Company, Northern States Power Company, Duke Power, Indiana Michigan Power 5 6 Company, Boston Edison Company, GPU 7 Nuclear, Incorporated, Power Authority of 8 the State of New York, Omaha Public Power 9 District, Nebraska Public Power District: I0 ALEX D. TOMASZCZUK, ESQ. 11 DANIEL S. HERZJFELD, ESQ. 12 Shaw Pittman, LLP 13 1650 Tysons Boulevard 14 McLean, Virginia 22102-4859 ¯ (703) 770-7901) 15 16 17 On behalf of Plaintiff Sacramento Municipal Utility District: 18 19 DAVID S. NESLIN, ESQ. 20 Arnold & Porter 21 370 Seventeenth Street, SiJite 4500 22 Denver, Colorado 80202-1370 23 (303) 863-2301 24 25

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Page 469 LLP, 1650 Tysons Boulevard, McLean, Virginia 22102-4859, at 9:38 a.m., Thursday, April 11, 2002, and the proceedings being taken down by Stenotype by CATHERINE S. BOYD and transcril:ied under her direction.

' Page 471 1 APPEARANCES: (Continued) 2 On behalf of Plaintiffs Southern Nuclear Operating Company, Alabama Power, Georgia. 3 4 Power: 5 JEFFREY L. HANDWERKER, ESQ. 6 Arnold & Porter 7 555 Twelfth Street, N.W. 8 Washington, D.C. 20004-1206 9 (202) 942-6101 10 11 On behalf of Plaintiff Wisconsin Electric 12 . Power Company: 13 DONALD J. CARNEY, ESQ. 14 Perkins Coie, LLP 15 607 Fourteenth Street, N.W. Washington, D.C. 20005-2011 16 17 (202) 434-1675 18 19 On behalf of Plaintiff Commonwealth Edison 20 Company: 21 NORMAN M. HIRSCH, ESQ. 22 Jenner & Block, LLC 23 One IBM Plaza 24 Chicago, Illinois 60611-7603 25 (312) 222-9350

2 (Pages 468 to 471) Alderson Reporting Company, Inc. .......... ,nn 1.~nn.~'r31~_DEPO Washington, DC 20005

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5
McLean, VA Page 548

Filed 03/27/2007

Page 8 of 10
April 11, 2002

1 proceedings.) 2 BY MR. BANES: 3 Q. Okay. Let's see here. Turning back 4 to Exhibit 43, Mr. Brownstein -5 MR. HIRSCH: Which one is 43? 6 MR. BANES: I think that's one of the, 7 . one of~these vugraphs. 8 MR. HIRSCH: Offthe record. ' 9 (There was a pause in the' 10 proceedings.) 11 BY MR. BANES: 12 Q. Okay. Now let's see if you could open 13 to Exhibit 43, page 262 -- I just asked him to 14 hold Exhibit 42, page 43 exhibit, or page 262 . 15 open for a moment. 16 And then let's see. I have got now 17 Brownstein Exhibit36. 18 Now yesterday we were talking about 19 the, with Mr. Tomaszczuk, we were talking about 20 at what point we are in, the DOE and the 21 purchasers are in the process of the standard 22 contract for settin~ a rate? 23 A. Right.. 24 Q. Do you recall that testimony now? 25 A. Yes, I do.

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Page 550 indicated in the box. BY MR. BANES: Q. The number in the upper left-hand corner? A. 005; if we disapprove it and it goes to box 025, then it lays out a series of steps. We, we disapprove it. We notice the utility of that disapproval, and then the utility is supposed to revise their DCS and submit itto us. We then go through another review process, and again, We then have two options. We can approve the DCS, or we can disapprove it. If we disapprove it again, there is, appears to be two links. We notify purchaser, and the purchaser-.- or we can then propose a DCS to the purchaser. That's a little different than the first one, and I believe that's consistent with the contract.

22 Do you want me to continue on with the 23 steps? 24 Q. Sure. 25 MR. HIRSCH: I'm going to make the

Page 549

Page 551

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Q. And I think you testified that the, that the point of the process that we're in is in the, in the DCS? We're still iri the DCS process, is that correct. A. Yes. Q. Now the utilities and the utilities and the -- to, to your recollection, have you, the utilities and DOE.ever agreed upon a mutually acceptable schedule? MR. HIRSCH: Objection -- vague. Calls for a legal conclusion. THE WITNESS: Some utilities have submitted the DCSs, and we have approved them. BY MR.. BANES:. Q. Okay. And for those that you haven't approved, what's the process for after disapproval occurs? MR.. HIRSCH: Objection -- vague, no foundation. Calls for a legal conclusion. THE WITNESS: I don't know how to identify these boxes. This exhibit shows the path. If-once we have completed our review, which is

i'~ same objection I made to the previous question. 2 THE WITNESS: There is another review 3 process. 4 Once again, you can end up with an, 5 with approved DCS or, or we could then 6 disapprove what the purchaser proposed, which 7 leads into negotiations between DOE and the 8 purchasers. 9 BY MR.. BANES: 10 Q. Okay. Now let's go to, let's go to 11 the contract for a minute, Exhibit 1. 12 A. Okay. 13 Q. All right. And turn to page 660 of 14 the Exhibit 1. 15 A. Okay. 16 Q. And is the process you have just 17 described located, contained somewhere in the 18 contract here? 19 MR. HIRSCH: Objection -- vague. 20 Calls for a legal conclusion. 21 THE WITNESS: Yes. 22 BY MR. BANES: 23 Q. And where is that? 24 MR. HIRSCH: Same objection. 25 THE WITNESS: Under Article V.B. I and

22 (Pages 548 to 551) Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007

Page 9 of 10

May 23, 2002 Washington, D.C. Page 1

1 2 3 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
X

YANKEE ATOMIC ELECTRIC COMPANY (98-126C) (Merow, S.J.) .

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CONNECTICUT YANKEE ATOMIC POWER COMPANY : (98-154C) (Merow, S.J.) MAINE YANKEE ATOMIC POWER COMPANY (98-474C) (Merow, S.J.). Plaintiffs,
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THE UNITED STATES, Defendant.

Washington, D.C. Thursday, May 23, 2002 Deposition of ALAN BROWNSTEIN, a witness herein, called for examination by counsel for Plaintiffs in the above-entitled matter, pursuant to agreement, the witness being duly sworn by JAN A. WILLIAMS, a Notary Public in and for the District of Columbia, taken at the offices of Spriggs & Hollingsworth, 1350 I Street, N.W., Washington, D.C., 20005-3305, at 8:40 a.m., Thursday, May 23, 2002, the proceedings being taken down by Stenotype by JAN A. WILLIAMS, RPR, and transcr±bed under her direction.

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

Case 1:98-cv-00484-JPW
Alan Brownstein

Document 298-5

Filed 03/27/2007

Page 10 of 10
May 23, 2002

Washington, D.C.
Page 166 didn't have a facility, with respect to the first caveat; with respect to the second, what would happen if they had an approved DCS but took no action to submit an FDS, we never really addressed that, I never really addressed that. You know, every stage -- you know, whether it was the APR or the DCSs, I know in correspondence we urged -- we told the utilities this was consistent with the contract, but we never said -- well, we ¯ never did the what-if questions. BY MR. STOUCK: Q. So you didn't have any understanding one way or the other about my question which is you have the DCS, but you don't have anything subsequent, you just never thought about it, never focused on it; is that fair? MR. CRAWFORD: Same objections. THE WITNESS: I did not think we had a binding obligation with respect to myfirst caveat which is because the commencement of facility oper~ations. We never really addressed the second caveat situation, where we had that and it stopped. BY MR. STOUCK: Q. You never formed that understanding? A. No. Page 168 and to the foundation and to the extent it calls for a legal conclusion. THE WITNESS: Not necessarily. Let me try to give you an example. And frankly I would have to go back and review, it's been a long time, whether it's a real.example or not. But let's say a utility owned a couple reactors and say one -- a couple examples, one was a PWR and one was a BWR or one facility could accommodate rail and one facility can only do truck. In the DCS they may put a range of fuel down that encompassed both situations. Under that situation we would not necessarily have enough information whether to show up with the right type of cask, whether it be a BWR, PWR, or a rail or a truck cask. So that's not -- that's why I said not necessarily. BY MR. STOUCK: Q. Okay. So there are circumstances such as the examples you just gave me where, in the absence of the additional information set forth in the FDS, DOE would not be in a position to accept spent fue! just on the basis of the information set forth in a DCS with respect to the same fuel? MR. CRAWFORD: Objection, asked and

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l answered. Q. You agree with my statement, never formed THE WITNESS: If that was the only an understanding? 2 3 information we have, that could be a problem. A. Yes. Q. And you expected that utilities, you 4 BY MR. STOUCK: expected them in the course of the processes 5 Q. Well, would it be a problem in at least discussed in the standard contract, that at some 6 some circumstances, maybe not all, but at least some? point in time utilities would submit final delivery 7 MR. CRAWFORD: Same objection. schedules, that's the way you thought about it? 8 THE WITNESS: I would expect it would be a A. I had every reason to expect that 9 problem especially in the initial years, whenever utilities, you know, participated, if you will, in 10 those initial years were, as we were -- we would both the ACR, in the development of the APR, and in 11 be -- we would be ordering casks, for example, we responding to our instructions on the DCS. 12 would understand -- the vision was that we would Q. Okay. So you did expect that there would 13 understand what casks of What type we would need and be FDSs for all spent fuel described in a DCS? 14 what year. 15 And we would begin to order that, you A. I did. Q. And do you know whether it would be 16 know, in an efficient manner from the manufacturers. possible for DOE to accept spent fuel from a utility 17 It wouldn't be a -- we viewed it not as a prudent use if that utility had submitted a DCS to DOE, proper 18 of nuclear waste fund dollars to take a look at what DCS, completely filled out, but had not submitted an 19 we would need over ten years and order that on day FDS? And, just to amplify my question, is there 20 one. enough information specified in the DCS to allow DOE 21 So, in the initial years, we may have a to accept spent fuel for disposal even if DOE does 22 limited number of truck and rail casks and those not subsequently get the additional information 23 orders would, in fact, be based in part on specified in the FDS? 24 information that was exchanged in both the DCS and MR. CRAWFORD: Objection, compound, vague, ¯ 25 the FDS. That's the basis for how I'm giving you the

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