Free Motion in Limine - District Court of Federal Claims - federal

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A.

Well, first of all, nuclear operating

companies are not required by regulation to maintain a full core reserve, meaning the space to discharge their core into the fuel. It's typically for ease of plant outage management that that, a company would offload the entire core before reloading new fuel and leaving t~e discharged fuel in the pool. So at a minimum, companies typically will reserve one full core. However, as I said, it's not required, and one can impinge on full core reserve if it's necessary because of delays, for example, in getting your dry storage facility up and running. THE COURT: What do you mean by impinging? THEWITNESS: Well, say a nuclear power plant has 173 assemblies in their reactor core, and they'll take about a third of those out every 18 months, and that b~comes spent fuel, and then they'll put new fuel in, so one-third new fuel back in. And if they keep 172 spaces open in their pool, they can take all the fuel out, put it in the pool and then put the new fuel and

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the not quite -- the irradiated fuel that they're going to continue to use back in the reactor core. They could, only -- if they didn't have 172 spaces open, .they could take out just the assemblies that they didn't want that were going to be spent fuel, that were going to be permanently discharged, say it was 172, it was 50 assemblies. Take 50 assemblies out,~ put them into the pool because there are 150 sp~ces left, not 172, and then move the assemblies that are left in the core around to their new spaces and then bring in the new fuel and put the new fuel in, so if their full core reserve was 172 assemblies, but they only had 150, they've technically impinged on having one full core reserve in their pool. BY MR. GARDNER: Q. Now, you just talked about the concept

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of full core reserve. Now, actual operating reserve could potentially be higher than full core reserve, correct? A. That's right.. Some companies reserve

additional space for new fuel in their pool for staging. Some companies, because of the

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configurations of their pools, need additional open spaces because of worker shielding in and around the pool during outages, and there may be other reasons. Q. Now, your model, your industry wide

model assumes one full core reserve per pool, correct? A. When I ran for these cases, that is

the assumption that I made, yes. Q. So your acceptance model does not take

into account what a particular utility's operating reserve policy is, correct? A. Q. It does not. And yo~'re not endeavoring to

determine what each utility's operating policy were as of 1998, correct? A. Q. That's correct. Now, if you were to increase the

amount of operating reserve that a particular utility would want to maintain, that could i~crease the additional storage requirements calculated for that particular utility, correct? A. It might. Now, we've talked a bit about some of

Q.

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the assumptions that go into the inputs of your model, and now, I want to shift gears a little bit and talk about outputs or results of those models. Now, Ms. Supko, you'd agree that the amount of additional at-reactor storage you've calculated has changed over the course of the various expert reports you've authored in the spent fuel cases, correct? A. Yes, in part because I've used

different information or made different -- used a different methodology to calculate~ Q. Now, Ms. Supko, what I have just put

up here is Supko Demonstrative 5, and what Supko Demonstrative 5 is, is a summary of your table two from five different cases, and I want to walk through them with you. Now, in the Commonwealth Edison case, which was, I believe, the second expert report you issued in the spent fuel cases, you assumed under a 3000 rate of acceptance that there would be 1600 MTUs of additiona! at-reactor ¯ storage under scenario one, correct? A. Q. Yes. And in the report after that, the SMUD

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case, that number went down to 600 MTUs, correct? A. Q. Yes. Now, the reason for that drop was that

you changed the way that you were modelling the calculation of additional at-reactor storage, correct? A. Yes, somewhat. In Commonwealth

Edison, I modelled a strict oldest fuel first by pool. For example, looking at the chart, if we can bring up the, just the chart that's on the floor there, I'll just give an example. Q. A. Q. A. Q. A. Which chart would you like? That one right there. The one in my hand? Yeah. The Supko Demonstrative 2? Thank you. Palos Verdes isactually

three nuclear power plants, and they all have. separate pools, and when I modelled Palos Verdes in Commonwealth, I assumed that when Arizona Public Service was using their acceptance allocation, they would be used from -- the acceptance rights would go to the pool from which they were granted.

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In SMUD, I changed than and assumed they would shift them from whichever pool needed it, which is the way a company would actually operate. Q. So just so I understand, the I000 MTU

drop is the result of your failure to consider linking a utility that had dry storage in 1998 with its wet pool, is that correct? A. No. If it's a strict oldest fue!

first by pool rather than by site, in the SMUD and Southern Nuclear cases, I linked, allowed the shipments to occur from any.pool at that site. The other thing that I did is I also -there were maybe eight or nine plants that had dry storage prior to 1998, and most of the fuel that's in dry storage is the older fuel. The companies would actually likely ship from theirpools and not from dry storage. I also attempted to link that together. Q. That's, I think, What I was just

talking about with you, and so when you connected that the dry storage and the pool, that's one of the reasons why the numbers in Com Ed to SMIID dropped by I000 MTUs, correct? A. That's part of it, but that's not the

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whole reason. The other reason was just linking or allowing the shipment of spent fuel from any po01 on a given site. Q. Now, you just mentioned Southern

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Nuclear. You, again, calculated 600 MTUs under your scenario of the 3000 rate. Now, in the South Carolina report, it then goes from 600to 1030 MTUs, correct? A. Q. Yes. And the reason for that 430 MTU

increase from your report in Southern Nuclear and South Carolina was because you underestimated the storage requirements at the eight sites that had dry storage as of 1998, correct? A. Well, during my.-- I believe it was my

Southern Nuclear deposition, it was clear to me that the results of my model were not -- and how the results were calculated were not transparent to the government a~d its consultants. There's input, and there's output, and I wasn't certain that you were able to understand all of my output files because it's a Fortran code and it's ASCII characters. And so in order to make my analysis

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correct? A. Q. Yes. And once you conducted that

sensitivity analysis of intrautility exchanges, that significantly changed the numbers for calculation of additional at-reactor storage, correct? A. Well, one would expect that the

additional storage requirements would drop as my analysis shows~ and I believe my qualitative analysis in Commonwealth Edison stated that, and I quantified it in subsequent analyses. Q. And once you quantified it, that

significantly dropped the number of additional storage requirements, correct? A. Q. Absolutely. I want to change gears for just one

second and talk about your publications. I think you list a number of them in your written direct testimony. You've published several irticles in peer reviewed publications, correct? A. Q. Yes.. And none of your peer reviewed

articles discuss the methodology for

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determining the reasonableness of a particular rate of acceptance, correct? A. Q. That's correct. I'm going to change gears just a

couple more times. Your industry wide model projects that DOE will accept 90,000 MTUs of spent fuel over a 40-year period, correct? A. The scenario that assumes licenses,

nuclear power plants operate for 40 years, calculates approximately 90,000 metric tons, yes. Q. And you assume that DOE will in fact

accept all 90,000 MTUs, correct? A. Yes. That's also the way the

Department of Energy models spent fuel acceptance in its calculation of the adequacy of the Nuclear Waste Fee. They assume that they will accept all fuel in an uninterrupted manner. Q. Now, you're aware in 1987, Nuclear

Waste Policy Act amendments limited DOE to a single repository at 70,000 MTUs, correct? MR. SILBERG: Objection, calls for legal conclusion. We're also getting into areas that are, it seems to me, beyond the

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7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOCKET NO.: CASE TITLE: HEARING DATE: LOCATION:

1725 CERTIFICATE OF REPORTER 03-2624C Systems Fuels v. U.S September 22, 2006 Washington, D.C.

I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Court of Federal Claims.

Date= 9/22/06

Cynthia R. Simmons Ott, RMR, CRR Official Reporter .Heritage Reporting Corporation Suite 600 i220 L Street, N.W.~ Washington, D.C. 20005-4019

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of October 2006, a copy of foregoing "DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESS, MS. EILEEN M. SUPKO" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s\Stephen Finn