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

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APPENDIX

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INDEX TO THE APPENDIX Document Letter from M. Detmer, Contracting Officer, to RonaldG. Cocherell, Southern Nuclear Operating Company, dated March4, 1992, attaching Instructions for Completingthe AppendixC Delivery Commitment Schedule Excerpt of Trial Testimonyof Christopher Kouts in YankeeAtomic Electric Co. v. United States, No. 98-126C, August 2, 2004 ............................ Excerpt of Civilian Radioactive Waste Management System Requirements Document, Rev. 05, January 1999 ................................................ Excerpt ofH.R. Rep. No. 108-212, "Energy and Water Development Appropriations Bill, 2004," July 16, 2003 .......................................... Order, TennesseeValley Authority v. United States, No. 01-249C, August 12, 2004 .............................................................. Excerpt of"Assessmentof Damages,"Expert Report of Richard J. Sieracki and KennethP. Metcalfe, served on August 1, 2005 ..............................................

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Department of Energy Washington. 20585 DC

Mr.Ronald Cocherell G. Southern Nuclear Operating Company P.O, Box IZ95 Birmingham, 35201 AL DearHr.Cocherell: The Standard Contract far ~i.spe~a~f SpentNdc!~ar Fuelaqd/orHiQh-Level I Radioactive Waste(10 CFR Partg61)provides that,beginning January 1992, I, Purchasers sh~llsubmitto the Department Energy(Department) of Delivery Commitment Schedules {DCS).- DCSprovides Purchaser theopportunity The the with to inform Department plansregarding allocation projected the of its of Federal wasteacceptance capacity. This information will assistthe Department in meeting contractual its waste acceptance responsibilitiesin thedevelopment and of theFederal wastemanagement system (FWHS). The allocations the 1991AnnualCapacity in Report{ACR)should the basis be for the DCS submittals. allocation a specified An is acceptance capacity (measured metric in tonsof uranium) a particular in yearfor an individual Purchaser. 1991Acceptance The Priority Ranking beenusedas the basisfor has theallocation waste of acceptance capacity specific to Purchasers theIggl in ACR.Thesereports havebeenrecently issued the Department sentto all by and Purchasers. a Purchaser an allocation, equivalent Once has any quantity spent of nuclear fuel(SNF) owned thePurchaser be designated delivery by can for within the limits thatallocation.Purchaser submit of A may DCSsForas manyof their allocations theychoose, as throughout I0 yearperiod the identified theACR. in TheDepartment requests thatthePurchasers submit DCSsfor as manyallocations as possible assist the Department's to in planning.of FWMS.The enclosed the DCSinstructions intended assist are to the Purchaser completing DCS. in the TheStandard Contract provides thatPurchasers shall submit DCSsto DOEat least 53 months prior delivery. Department to The recognizes boththePurchaser's that and Department's ability con~nit a specific to to delivery dateover63 months in thefuture limited. is Therefore, Department the suggests thePurchasers that designate onlytheyearof deliverTon DCS.Theactual the dateof delivery will be proposed thePurchasers theirFinalDelivery by in Schedule submittal. Two entries wereaddedto the DCS form,identification number a~d contact person, to allowthe Department communicate to moreeffectively with the Purchaser concerning their DCSsubmittal. AFter DCShasbeenapproved, a Purchasers either theOCSas thereF9rence may use document for submittal the FinalDelivery of Schedule, whichis required 12 months priorto delivery, use theDC$ as-the or basisforexchanges withother Purchasers. Specific guidelines submission exchange for of requests under are development, willnothavean impact thesubmission DCSsforapproval. but on of

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Th~ enclosed formwillbe submitted ~he Office Management Budget DCS to of and {OMB~ for approval shortly. Department transmit theP~rgha~ers The will to the OMBapproved formas soonas possibl DCS e. If you haveany questions concerning the~instructions, please .contact Nick Grahamof my staffon (202)586-9634 Alan Brownstein the Department's or of OfFice'of Civilian Radioactive Waste Management (202) on 5B6-4973.

M. Detmer Contracting ~fficer Office Placement of and Administration Enclosure

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U. S. DEPARTHENTOF E~ERGY INSTRUCTIONS COMPLETING APPEROIX DELIVERY FOR THE C COMHITHEHT SCHEDULE GENERAL INSTRUCTIONS 1. PURPOSE~D OF DATA USE The Standard Contract Disposal Snent f~r of Nuclear Fuel.and/or. HiqhLevelRBdioacti.ve (I0 CFRPart961)states ~t~ that,beginning January 1992,Purchasers beginsubmitting theDepartment I, may to of Energy (DOE)Delivery Commitment Schedules (DCS)thatidentify spent all nuclear fuel(SNF)thePurchasers planto deliver DOE beginning to months thereafter. DCS provides Purchasers The the withthe opportunity to inform DOEof theirplansfor utilizing theirallocations of projected Federal wastemanagement system (FWMS} acceptance capacity. Thisinformation assist will DOE in meeting contractual its waste acceptance responsibilities in developing FWMS. and the WHO SHOULD SUBMIT The DCS should submitted all Purchasers allocations the be by with in 1991Annual Capacity Report (ACR)(orsubsequent ACRs,as appropriate} as specified Article in V.B.of theStandard Contract p~sposal..gf foF Soent Nuclear Fueland/or Hiqh-Level Radioactive Waste.. WHENTO SUBMIT Beginning January 1992,Purchasers I, shallsubmit DCSsat least63 monthspriorto requested delivery. thistime,DOE suggests At thatthe Purchasers designate onlytheappropriate delivery year(calendar year), recognizing boththe Purchaser's the Department's that and ability to com~it a specific to dateover63 months thefutureis limited. in For eachallocation listed the IgglACR (orsubsequent in ACRe,as appropriate), a Purchaser mustsubmit leastone DCSfor that at allocation least63 months at priorto the datethatthe allocation occurs (e.g., a Purchaser an allocation 1998,a DCS mustbe if has in submitted thatallocation September 1892). for by 30,

2.

3.

4. WHERE SUBNIT TO Purchasers shall forward comp]eted and onecopyto: the DCS U.S.Department Energy of DOE Contracting Officer Office Placement Administration of and PR-322.I 1000Independence Avenue, Washington, 20585 DC cc: U.S.Department Energy of Chief, Logistics Utility and Interface Branch O~fice Civilian of Radioactive WasteManagement RW-432 1000Independence Avenue, S.W.' Washington, 20585 OC

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ALITHDRITY Dataon the DCS arecollected underthe authority theNuclear of Waste Policy Act of ]9B2,as amendedl U.S.C. (42 10101et seq.)and Article V.Bof the.~tandard Co~tract Pi~posal..o? ~u~lear ?qr Spept Fue.) an~/or ~gh Leve Radioactive I PROVISIONS REGARDING CONFIDENTIALITYIHFOR~TION OF Databeingcollected the DC$ arenot considered be confidential. on to BACKBEOUHO IHFORI~ATIOH The 1991Acceptance Priority Ranking (APR)established order the in which FWMSacceptance capacity allocated the ~991ACR. is in As required the Standard by Contract, priority the ranking is basedon the datethe SNF was permanently discharged, the with owners the oldest of SNF~on an industry-wide basis, giventhe highest priority. 1991ACR The applied ~0 yearprojected a waste acceptance to the 1991APR for planning rate purposes, resulting in individual Purchaser allocations. Purchasers' The allocations for eachdelivery year(fpra 10 yearperiod) presented the are in 1991ACR and are the basisfor Purchasers submitting DCSsto DOE for approval. to the limited Due annualacceptance capacity ~f the FWMS,onlyDCSssubmitted Purchasers by withan allocation in the delivery yearwillbe considered approval for (e.g., order in for a Purchaser havea DCSconsidered approval delivery to for for in 1998,the Purchaser musthavean allocation IggB.) in

(b) Oncea

Purchaser an allocation, SNF ownedby thePurchaser has any can be designated delivery for against thatallocation. OCS The doesnot restrict Purchaser deliver specified that the to the SNF was thebasisfor theallocation (seealsoItem/.(h)}. The annual acceptance ratesin the 1991ACR provide an approximation the FWHSacceptance of capacity are forplanning and purposes. process The described herein assumes thatthe FWMSwill be ableto accept thePurchasers' beginning 1998according SNF in to the acceptance ratereflected the 1991ACR.In the event in thatsuchcircumstance~ change, DCSspreviously all approved by DOE mayneedto be reevaluated DOEand thePurchasers. by

for allocated FWMS (d) Overthe 10 yearperiod whichthe 1991ACR

acceptance capacity, Purchasers qualify a specific may for number of alloqations (from0 through tp).Beginning January in Igg2, Purchasers su~mit may DCSsforany or all of their allocations, up through year]0. Earlysubmission DCSswillfacilitate of the exchange of approved OCSsbetween Purchasers, as allowed by Article V.E.of theStandard Contract,

number OCSssubmitted a of by (e} The actual

Purchaser willvary according thenumber'of to allocations havein theACR and they the number OCSstheychoose submit of to for eachallocation. DC5should submitted onlyonedesignated be for delivery site, onlyonefuel~ype(BWR,PWR,or Other} andonlyonedelivery

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year. Therefore, Jf a Purchaser splits an allocation betweentwo or moredelivery sites or betweenfuel types, more than one DCS willbe required. Thereis no limitto the numberof OCSsthat can be submitted eachallocation, longas the totalmetric for as tonsof uranium (MTU) requested doesnot exceed the Purchaser's totalMTUallocation thatyear. for Unless specifically requested otherwise, willevaluate DOE all DCSssubmitted against single a allocation period independently. If a Purchaser prefers DCSssubmitted all against single a allocation to be.considered onepackage, year as thisshould be con~nunicated DOEat the timeof submission. evaluating to When the DCSsas a p~ckage, oneDCS is disapproved all DCSsfor if then thatperiod willbe disapproved returned thePurchaser and to for resubmittal.

C~)

Wasteacceptance capacity allocated Purchasers expressed to is in ~ termsof MTU. The MTUallocation doesnot necessarily limitthe number assemblies of thatcan be delivered. OCS is designed The to covera givenquantity SNF as measured MTU,not of in assemblies. realizes DOE thatthe number assemblies of associated withan allocation varyaccording the actual will to SNF designated delivery. appropriate for The entryfor the blankon theDCS labeled "Number Assemblies" discussed moredetail of is in belowin the Specific Instructions Completion DCS. For of fuelto be delivered, eachDCSis assumed be for Standard to Fuel, Class or ClassSZ, as defined Appendix of the Standard SI in E Contract. approved shouldnot be interpreted a An DCS as cenTaitment DOEto accept by otherthenstandard fuel.The Contract makesspecific provisions delivery otherthan for of standard Fuel.If a Purchaser intends deliver to othe~than standard fuel,thePurchaser mustsubmit proposed handling/shipping procedures DOEfor evaluation to and confirmation to the technical as feasibility accepting of the delivery the schedule the approved on in DCS.Submittal these of proposed handling/shipping procedures notrequired is untilafter the DCS has beenapproved. the acceptance otherthan If of standard fuelcannot acco~odated, P~rchaser the option be the has to deliver standard fuelon theschedule the approved or in DC$ exchange approved withanother the DCS Purchaser, provided contractual limitations be met. time can

the of (h) Sincethe OCSdoesnotrequire identificationthe specific

DC$PROCESS Uponreceipt DOE,eachDCS willbe datestamped. shallapprove by DOE or disapprove DCSwithin months receipt. the 3 of Suchapproval willbe confirmed signatures theDOE Contracting by of Officer DOE Technical and Representative theDCS returned the Purchaser. the DCS is on to If incomplete if theDCS doesnot reflect or delivery rights available to the Purchaser, DCSwillbe disapproved returned the the and to

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Purchaser. The Purchaser will then have 30 days to resubmit the revised DeS.DOE shallapprove disapprove revised or the DCS within daysof 60 receipt. therevised If DCS is disapproved, willsubmit the DOE to Purchaser reasons suchdisapproval, proposed for and alternative DCS(s) for theirconsideration. thisDoE-preposed If alternative is not DCS acceptable the Purchaser, parties to both shallpromptly seekto negetlate acceptable schedule(s). qUESTIONS TIlE DCS ON If you haveanyquestions require or moreinformation completing for the DES,please contact AlanBrownsteln (2D2)5B6-4973~ Nr.Nick Mr, at or 6raham (202)5B6-963~. at Please directallcorrespondence DOE to Contracting Officer, Office Placement Administration, of and PR-322.1, 1000Independence Avenue, $.W.,Washington, D.C., 205B5.

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SPECIFIC INSTRUCTIONS COMPLETION DOS FOR OF The following specific are instructions completing DCS.Each for the indicated entryof the DCSshould filled wlththeinformation be in as described below. Requests information for whichhavebeendetermined not to be currently needed DOE havebeenprefilled by with"NotRequired" the in attached DC$. DCSIDENTIFICATION NI/HBER: 12-digit A unique identification number having theformYY-RRID-NNNN-S$, where digits the Proposed of Delivery Year YY = thelast'two RRID= RW-859 reactor Identific~tlon number thedesignated of delivery site NNNN= the lastfourdigits thecontract of number associated with theSNF beingdesignated delivery, for and codeto uniquely identify DCS the SS = a two digitsequential within thisPurchaser's annual allocation, As an example, suppose Electric PowerCompany (Contract Number DE-CROI-83NEI2345} submits DCS to deliver a SNFfrom'Unit (B-B59ID I Number8801)in the year Igg9.Assumethat this is the thirdDCS that Electric PowerCompany plansto submit underthisallocation. The unique identifier thisDCS wouldbe 9g-SBO1-Z345-03, the for Type number the top right-hand on cornerof the DCS.If the Purchaser elects not to insert identifying an number, one willbe assigned DOE upon by receipt the DCS. of CONTACT PERSON; Enterthenameand telephone number the person of the Department should contact thereare questions if concerning DOS. the CONTRACT NUMBER: Enterthe number the Contract of underwhichthe disposal feeswerepaidfor the 5NF designated thisDCS.For on Purchasers withmultiple Contracts, entryrelates theContract the to number associated withthe SNF designated delivery may differ for and fromthe Contract number theSNF whichqualified Purchaser of the for the allocation theContract or number associated withthe designated delivery slte. 1.4 REACTOR/FACILITY INFORMATION: Enterthe nameof the designated delivery sitewheretheSNF willbe delivered DOE.The facility differ to may fromthefacility thatgenerated SNF thatqualified Purchaser the the for the allocation, Enterthe streetaddress (notmal]ing address) thedesignated delivery site. 2.1 TYPEOF CASKREQUIRED: Indicate tons)the maximum (in loadedcask lifting weight (weight the hook|ncludlng on lifting equipment water and in the cask) thatyouIntend use at thedelivery to location indicated In Item1.4.If you planto upgrade the caskhandling capacity this at facility priorto shipment, thisupgrade should reflected the be in maximum lifting weight. Thisinformation to be usedby DOE for is

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planning purposes and does not imply any commitment DOE the by or Purchaser. The identification of the specific cask will be determined during the Final Delivery Schedule(FDS} process, SHIPPING LOTNUMBER: ("NotRequired" beenentered.} shipping has A lot is a specified quantity SNF designated delivery a specific of for on date.Sincea DCSshould not identify specific a datefor delivery, assignment a shipping number of lot wouldbe premature thistime. at 2.3 PROPOSED ~HIPPIN@ MODE:Checkthe appropriate far:(a}Truck, box (b}Railor (c) Barge, iBdic~ting proposed your shipping mode. Purchasers should indicate modeof the carriage thatthe caskidentified in Item2.1willbe delivered DOEat the Purchaser's to gate,f.o.b. carrier. entryof "Truck" An willindicate DOEthatthe Purchaser to proposes deliver caskon a trucktrailer, entryof "Rail" to tee an will = indicate delivery a rollcar,andan entryof =Barge willindicate on thatthe Purchaser proposes deliver to the caskto a barge. Selection of shipping modeis independent casktypeand onlyindicates of the carrier mode.Finalselection of.theshipping modewillbe determined during the FD$ process. a Purchaser If intends upgrade facility to a fromtruckto railaccess, "Rail" should indicated the DCS. be on Similarly, a Facility either if has railor bargeaccess butthe Purchaser plansto deliver truck, by "Truck" should indicated the be on DCS. PROPOSED DELIVERY DATE:Enterthe appropriate delivery date(year} for theSNF to be delivered accordance in withyourallocation (listed in the ACR).The actual datewillbe determined during the FDS process. DOE ASSIENED DELIVERY COMMITMENT DATE=Thisentrywillbe completed by DOE. RANGEOF DISCHARGE DATES(Earliest Latest): to Enterthe rang~ discharge datesfromwhichtheSNF willbe selected delivery. for Purchasers encouraged be as specific possible. example, are to as For the Purchaser knowthatthereis certain thattheyprefer may SNF not to deliver underthisDCS(e.g., SNF in drystorage) exclude and thatSNF fromthe rangeof discharge dates. Purchaser include A may otherthan standard in the rangeof discharge SNF dates, although confirmation of the technical Feasibility delivery theotherthanstandard on of of SNF theagreed schedule to willbe required priorto submittal an FDS. of Canistered nonFue] wasteshould notbe included thisentryat this in time. 2.? H~TRIC TONSOF URAIIIWI (Initial): Enterthe MTU forthisproposed delivery. several If DCSsare submitted one allocation for period, the totalquantity SNF designated delivery of for mustnotexceed the allocation the ACRIexceeding allocation in the willresult in disapproval theDCS{s}. of = (Discharged) Requiredhas beenentered. Contract =Not The makes provisions allocation for onlyon thebasisof Initial content. MTU

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NUHBER ASSEHBLZES--BWR/PWR/Other: the numberof SNFassemblies OF Enter corresponding to the Hetrtc Tons Uraniumindicated in Item 2.6 tn the appropriate blankfor BWR,PWR or Other(e.g., HTGR,TRIGA). the SNF If in the designated rangeof discharge datesencompasses assemblies a with widerangeof MTU/assembly, statethemaximum number assemblies of that ma~ be delivered. Sincethe actual number assemblies be delivered of to mayvaryaccording the specific selected delivery, to SNF for adjustments the number assemblies be madeduring to of will the FD$ process. 3.0 CERTIFICATIONS: individual An dulyauthorized bindthe Purchaser to mustsignthe DCS,certifying thatthe Purchaser the legalrightto has deliver suchSNF to DOE.Insert the appropriate signatory's titleand date. NOTIFICATION DOE APPROVAL: signatures DOE'sTechnical OF The of Representative the Contracting and Officer willIndicate thatthe DCS hasbeenappreved.

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BSA

Yankee Atomic Electric

v U.S Nos.: 98-126C, 98-154C, 98-474C August 2, 2004
Page 338D AFPEARAIICE~ COIITIIIUED: OilBEIIALF HAIIIE YAUI;EE OF ATTIC PO~ER c~aNIy: Q~EPH PAY.ESQ. O, G~nerol C~nsel ~lne Yan~e~ 321OldFerr? Road Wis~sset. Heine 04578 Oil BEeFOF~IE DEFEIIDM~: ~OLO I~R, JR.. ESQ. HEIDE llEfl~t~Ill, BO. L, R. ~i ~I~ER.ESQ. I;~IIl B. C~(FORD, RUSSELL ~HULTI5, U.S.Oepar~nt JusLlce of

w l~x appears

Page 3379 APPEARIdlCEB: OIl BEHALF YAJlI;EE ELECTRIC OF ATOHIC COlIPldly. JE~YSTOUO;.~Q. ROBERT SI~PI~. ~ERIIIE R. ~R. ESQ. PETERJ. SlieR,JR.,ESQ. 13501 S~reet. II.H. ~ashlngton. D.C. 20005 (ZO2]BBB-SBO0 Oil B~LFOF Y~IIIEE M~ICELEC~IE COHPNIY and COIIIIE~ICUT Y~II:EE A~HIC P~ER C~tP~IY HERRILL ATIIIIIS. ESQ. J, 19 HIdsLaLe O~ve Auburn. ~ssachuse~s01560 (500) 7~1-304Z

Page 3381 PROCEED IIIGS P~, STOUO;: Your Honor. TIIE COURT: Yes, I,R..T)"OU~: Good~rning. THE COURT: Ooodmorning. HR. ~IOUD:: believe ~e the Court ), l and Hr. Lesser respons~ ~fie~r caseIs a on our was leftsore of dangling ~u~day. And ] would on llheto address th~ i6 I ~y. ~E C~RT: Sure. p~ovldes Opportunity. an I think, add~ss ~o question. TIE COURT: lint. Oh. I~. SIOU~: I +mold lice to do lhal. ~d It's cm~up msL days bu~ I~'s b~en a lt~le plec~al.I wane to ~ke s~re ~'veno~ ~ipslt(ed. theone handunder pretrial on a precis thal encourages dealing with a lee of de~ails out oF COUP.an~ thE~ ~ gee ~o Court and then ~ a~ lold Chat km really nee~ to have ~re ~itnesses hera.

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Yankee Atomic Electric v U.S Non.: 98-126C,98-154C, 98-474C August 2004 2,
Page3450 theydo. tl} A Yes, (2) Q Andwhat these do reports represent? representlhe viewsandpositions (3) A They (4) the M&O contrecloron thoseissues. (5| QAreIheserepealsdellv~rables under their (6)contract? [heyare. (7} A Yes, (e} O DoesDOE accept these reports as (9) dellverables? (10} A Yes, weacceptthem deliverablesIf as (11} they- il webelieve Ihsyappropriately that (12) addressed stalement work the intanl~on the of and of (la) thereporl,yes. of (14) Q Are thosereportsthe statements DOE? (15) A No,Iheyare not. (16) Q Byaccepting rraport, does accept the DOE the slatedIn thereport? (17) conclusions (le} A No. (le) Q When wouldthese reports become repods [he (Z0i or etataments DOE? ol (2~] A When either Issued a document DOE under (22) own letterhead,it would have RW an number, (23) tadloactJve waste number iL OrIf there was on some (24) policy statement made the Department some by in (zS) mechanism either throughcon'espondenoe or other Page3452 standpoint business esa judgment that ll} Iroma business not to to melerials Ihe al (2) I[ does want commit accept (3) amount the maximum of capabi[i~,il youw~t,el our (4} ability to receive those materials, (5) So, depending how Oepartmenl on the views (el hot,," It ,,,rants to operate- program a business the lmm if w~l,it could different be than {7)perspective, you (s) what Iotsl recatpl m'~d total capab~tty the rule th~ (9) of thereceipt would of ourfacilities. rate be (10} QCould thara be other constreinls onthe (11) acceptance rate? (12) A PolenL[atiylhera couldbeissuesassociated (13) with how w,=,wantto deploy facBtiesandhow want we (14) to essentially process fuel. the (is) O A~'e familiarw{ththetermramp-up you rate? (16) A Yes,I am. (17) Q What ramp-up is rate? (1~| A It's standard practice,when you're going Io (19) star[ upanykind of fac~, includingnuclear say a (;.~0)facility, andI would ecpectalty nuclear (21) facility, thatyou don'lwant start outat a to rate. don't, want tax yourfeci]llies to (~.} maximum You (~3] to their maximum unblyouhada learningcurve, rule wtlL (;Z4)If you (25} So ramp-up that wetypically hadtn the rate

Page 3451 (1) areas. OThank you. Mr. Kouts,a=eyoufamiliar with (2) (3) the term receiptrate? (4) A Yes,I am. (5) Q Whal Ihereceiptrule? is (5) A The receiptrate, asweuse in the il (7) program, thetechnical is capability ourfacililles of and them the (a) 1oreceivemateriels process Ihrough (9} syslem. (m) Q Are you fam~larwiththe term acceptance (11) rate? (12] A Yes,lain. (13) Q Whal the acceptance Is rata? acceptance is the contractual rate rate (~4) A The (lS) at whichthe Oepadmenl committed receive has 1o from (is} maledais the contractholders. (~ QWhere Ihe acceptance set forth? is rate (18) A The acceptsnce is eel forth In the rule (19) acceplance pdodty rankingandthe Annual Capacity (;zo) Report. (21) Q Couldthe receipt rule end[he acceplance (23) rule bedifferent? (~3} A Yes,they could. (2,t)Q Why? (25) A Essentially, the Department delermine can

Page3453 ('q our technicalbaseline documentsa step.by.step IS (2) approach try, to work upto eurmaximum Ihat. to us rate (3) would allowus the ability to team wegoandto as (4) bringoncapability additional capabglty a. in {5} measured fashionas opposed trying to doa maximum to (o} amount dayone. on (7) QThank you. Mr. Kouts,are youfamiliar with that was to (8) the MRS DOE designing beable to accept (9)wastsln 19987 (10) A I'm famglar with the vadeus designsthat (11} were beingconsidered thai, yes. for (12) QWhet type of facility did DOE I0 build? plan (13) A "t-nat wasa bareluel handling storage only recak, maledals e from (14} facility that could (15) transportation if you casks, wtil, from utilities and ulility sites, and slursit onnile byremoving (16l from (17) materials of thosecasks, of those out out casks Into vadous (18) b'anepodation andputting Ihem (19) storage devices. whatIhe eslirnaled cost for (;~0} OAnddo youknow (2.1} that facility was? (22} A Depending the type of sloragetechnology on (23] I0 beused,the life cyclecost welookedat somewhere 1.'7 $:'.7 bg[ion. ("4) between and (25) QThank yeu. Can havePlaintil|s' Exh~it we

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xM~X(20r~0) v U.S Nee.: 98-126C, 98-154C, 98-474C August 2, 2004 Page3455 (1} anunderstanding to whatthe source thoserates as of (1} 254? MS.SULUVAN: I approach, Your Honor? May ~) wee? THE ~OUFIT:Sure. Yas. (-~1 A Yes. ~.4| MR. STOUCIC Honor, can I Interpose an Your MS,sULUVAN: Honor,wouldyou like a Your for here.I don'lmean to (~ ~py? (5") objection II~e record (e} interruptunduly, But: Mr.Kouls disclosed the was in iS) THECOURT: can use ~IS. I {7) government's IIst to lestl{y about topics. wi~ess two (~ MS. SU~[VAN: Okay. a (8) BY MS. SU~VAN: (B) AndIjeslwant Io make record onIbaL Andwecan tatar. first one, (9) O Mr. Kouls,what's been up onthe screen put (9l dealwilhthe consequences The ma~ed as (lO} DOE's plansto beginwaste accaplance 2010,The in {lo} ~d I providedyoua paperco~ of hasbeen ~is was Mounlain reposllop7 (11} Plainffffs' ~i1254.Doyourecognize (111 second the loci. Ihat the Yucr.~ (12) d~cument? (12} Is not belngdesigned acceptGTCC to waste. to Ihat (13} A YES, do. I (13} SoI just wanted have ontherecord. p4) Q Would you ~laln to ~e Co~ whal ~ (14} And,eg=ln,wecandee/wilhqua.~llons aboutwhelher thatoncewaseei|it|iesup. {15) document ~=, (15) thisis beyond yeu to (1sl A ~k IS a, I bailers, ~v~lon of our 5 (181 MS. SULLIVAN: Would like me address (I7j p~rant ar o~ m~l~ l~hnlcal cequlr~ dacumanL (tT) ~el. YourH~mor? that or (18) It's ~picatly a document ~a@color ~a (181 THE COURT: you wish. II o~s, Or (19) p~gram ~d it lays out ~e technical (19l MS,SULIJVAN: shall I just oonl[nue? (~o) requlmm~n~ ~e program ~pfamenL for to (~o) Your Honor, tables the specifically this chertera In (21) Q ~d does ~IS document ¢on~in Info~alion (21| the ones that Dr. Graves Mr. Graves or railed upon. (~) wl~ regard 1o ~e d~lgnrequirsmen~ o[~a (~) Mr. Koutshassome testimony bel(eveIs ImportanL we (~) reposlIo~? (~) SoI believe was it raised Plaintiffs' case. in (24) A Yes, 11 does. wgl clear (~4) Andalso, t'u~er quesllens make date. (~) O Okay. HowIS ~is document us~ byyour (25) iL's tied[n partto the?.OtO BSA Yankee Atorn[c Electric Page 3454.

Page3,~5 (1] o~cain ils wasleacceptance funcl~on? us t~ ~;~1 A Essentiatly,it ~wes guidance - in would be, (~ termsal whatthe receipt ~le of ~esystem policy guld~ce ~eprogram to (~) It also gives vadous (el as a whole. (61 Q ~1 ~1 pressmen ~ls docum~nl? (8) A I - yes. I manage changes Ibis. And to I (9) basi~lly da~al for lhe dlr~tor el ~e program. (~o1 Q Couldwe go Io page15 el ~is d~ument, (111 please. Kouls,am famtllar wi~the Mr, you on (121 cen~l~ inle~m slorage fac~l~ m~oned Ih~ (13) page? (14} A Y~,lam. ~ How youf~iliar wi~~hatlactiC? a~a ll ~ (m 6) A As I manlionad, when w~t Ihmugh I my for (~ histo~ wi~in the ping.m,I wasresponsible {~) developing d~tgno[ a cenl~l~edlntedmsledge ~e (19) fac(li~ ~al essenliallymetIhesarequirement. (~0) Q ~t ~pe or lacgl~ did DOE plan to build (21) as the cenl~izadInledmsledge A II wasa, essentiallya canisterhandling (~) the ral~ (231 lacill~ thai ~uld meet ~m~up idenlifled (Z41 in - In labia3 hera, 1~51 QQkay.~d the roles in labia 3, d~ youhave

Page3457 THECOURT: Okay.Go forward. (1) (2) MS.SULUVAN: 3"~ankyc~u, Yo~"Honor. (3| BY MS. SULLIVAN: (4) QMr. Keuts, whatwas- do you h~vean is) underslandlng the source the rateswere what el for (S) thelac~itiP..S were lorlh In thls document? that set (7} A Yes. (B) Q Andwhatwasyour unders~.nding? were several bills thai were wlndlng (9) A There {lo) their way through Congress would thai havedlrecled {l"q the Department, should~ley havebeen passed, la ~ begin take to (121 deploy ~acility to essenllelly (13} materials ulllltles lot storage from purposes. ramp-up rate~werebasically rates 041 These conl~ined these in bi~ta. (15) that were (16) QI'm sony.La! meiustolarily. Yousay {17)bills v~ere pending the it, OBpartmenL mean Old you (IB}bills pendingCongress? in (lg) A Bills pendingin Congress. QAnddid you havean undersland(ng to what as f20) (21}thelegislallon calledfor, generally? (~.) A ~e - ~e legislation went~rougha (~31 v~fle~at m~lions.~a Initial {o~ ol ~e (241 I~islallon waslot ~eDeponent build a - an to (~) lnledmslomga [acili~ or canlra~zed tntadm

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Yankee Atomic Electric v U.S Nos.: Page 3458 (1) storage tacility el, pelentiatly Nevada, to in next. the Mountain is fight now. there silo And (2) where Yucca also otheroptioes terms where In of that (3) were (4)facility could deployed. be Interim slorage (b-I Q Howwasthecen~allzed (6)faclIl~ di(ieren!theMRS Imm designedDOEIn[he by (7)~arly - Inthe 'B0s 1980s eady and 'gDs? (B} A In themid-'B0s,weblooking e we at that a deal capabBity. I| (9)faculty had greal more (10}was that. one basically had pacl~aging capsbilIly that {II}would essentially oflhe dosome packaglrlga that (12}reposilory typically have weald done. (IS)It. had consolidation. also rod It. had also (14)the ilex~illb] Iodevelop disposal-ready canisIer~ {15}for ofthe any three that were silos we considering al (16)that whlch the time, were basalt InHanIord, silo (17) Washlnglon, alto, the tuff t-u-f-f, tuff volcenIcsite (IS)inNevada, also Deaf and the SmIlh bedded slle sell in {19) Texas. (20) Q Was Iac~li~y, cen~alized the the Interim (21) slorage facilI~ forth this ever set cn page (~.)construcled? {23) A No, wee if. noL (24) Q Whyno[? {2=] A The legislation was never passed the and

98-126C, 98-154C, 98-474C August 2, 2004 F'age3460 {1) A Therehavebeen various considerationson ese {2) CapilolHill as to Initiatives that would Homeland (3) Security funds essentially thereaclers pul. Io fund to (4) their - th~pool- thema~efials they'renow lhat (5} managingthe pocls,thehigh-levelwesle {n materials, (5} the spentfuel Inlo dry slorage casks, undertake and (7) thatInIIlatlve. (~} QMr. Kouls,are youfamiliar with the (9) matedal known CrosierThart ClassCradinactive es (1o| waste? (11) A Yes. (12) Q Deyou understand that GTCC radioactive Is by nuclear ulilliies? {13) waste generaled commercial (14) A Yes. (15} Q Is GTCC radioactive wasteone o( the waste tbatDOEwBI acceptpursuant the to (.16| mateaals {17) standard contract? (~a) A No. (19) QIs DOEdeslgning repository Io accept the (~o) GTCC radloacLIve waste generated commercial by nuclear {21) factlilies? (.~.) A No, It ls not. (2a) Q CouldDOE accept GTCC radioactive wasteat (?.4) thereposilory? A Theorellcally could.It would it require,I {~3

Page3459 (I)Department neverreceivedanyaulhodzations to (2) p=roceed il. on p) Q Couldthere be a similar congressional {4} lnillalive loday would Ihat allowor mandate acceptance spentnuclear ol fuel prior Io 2010? (5} A II Congress passed that legislation, then (7) the Deparlment beauthorized implement woutd to il, (5}yes. Q Are youaware the spentnuclearluel of (9) in with (10) slorageissuethat arose connecllon Ihe NRC's (11) budget, year? last (~21 A Yes, lain. {13) QAndwhatwasthe Initiative d{scuesed in (~4) that budget, submission? (15} A I believe [here wasa set amount lunds o( (16) that wassupposed be dlslnbuled Io Item the Nuclear (~7)Regulatory Commission budgetto the NationalAcademy where they were undertake sludy to [o a (15} cl Sciences, (19) lookat the- Ihesafety, you il wgl,of IueIthat's (=n) currengy storedinspanl fuel pools,at reaciors, and (~I) alsothat's In dryslorage testier silos, andlo at Ihe vle~vs the solely ef both cn (22.} provide Academy's (23) typesof storagemechanisms. (Z,~I Q Doyouhave understanding to what an as (aS] Initiatives could result from study? this

Page3461 ~n (1} believe,e change legislationto allowlessthan (2) high-level wasle materials goInto the repository. Io hsve pedorm to a (3) In additionIo that, wewould (4) vadelyol lechntcel analyses supplement and our (5} analyses we currentlyplannlng the that are for (a) NuclearRegulatory Commission lo how wgald as we of within Yucca Mountain. {7) dispose Ihosemaledals (5}In addition thai, wewould to to have some lot {9) develop kind of fee struclureto pay the (10} additionalcosts associated those with materials. (11) Q AreIhere space limitation issues that DOE have analyze GTCC to goto the I0 il were (12) would (13) repesilory? (14) A Yes.PotenUa{ly there ere. the (15} Q Andamthere issues concerning current (16) designof the sudace fes~ities at Yucca Meenlaln {17) thatwoutd haveto be analyzed? (1B) A Yes.Right now,cur fes~itles are designed weals malerials, spent fuel, {19) |O dealwilh high-level (20) bare spent fuel, If you will. If we going were to (2~) handleGreater Than ClassCwaste,wewouldhaveto (22) figure out how would packaged, II be where would it be (23) packaged, probably and requireseparate service [2,~) facilities overandabove what have we now,sinceour c only the l;:'--St urrenttac~llesare designed to handle

13
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Yankee Atomic Electric v U.S Nos.: 98-126C, 98-154C, 98-474C August 2, 2004 Pega 3462 Page 3484 the w~te (I) will, el therepesilory. I1) malerlais, high-level rrL~ledals. (e) And such,wewould wantto reduce as not the {2) Lel me also addwe'reIn the planning on of (ecililie~ In order dealwith Io 13) capacities [hose {3) backtiIlingthereposilory. Essenll~dly we're what (4} otherwaste materials. {4} doingis placingthe waste packages. We're not (5) Q CouldDOE place GTCC the backlill spaces In (5)fililng reposIlory kind materials. up the with any of (6) el the repository? {6) It's been theorized the in pastwewould take (7) MR,STOUCK: we watch the leading Can (7] pulverized or volcanic tuff materials backl~ll and it. here Honor? l'hera have been a (e) quesltans onthis, Your not on that, That'snotpart o~ {B} We're planning doing about this GTCC issue,and (9) seriesol leadingquestions (9) thecurrent planIo d~'-mcnslratethe Nuclear Io (107 f objectanthe!basis. Commission this site canIsolate thai ('~07Regulalory {11) THE COURT: Well, you could rephrase. (11) malarial. {12) MS. SULLIVAN:Okay. (1~) Sothereledt lot of space the ddlts a In (13) BY MS. SULUVAN: {13) to addaddilienalmaledals, my So sense what IS (14) QMr. Koula, when usethe terra back~l I (14) would h~veto happen therewould addilJonal Is be (~5) spaces, youknew do whal|'m tafktng about? (15) ddftsor tunnels would to bedrilled out that have (iS) A Yes. thesematerialswould placed. be {16} where (17} QCould[hose backffil spaces (17) THE'COURT: ~f you wc~dpaskagethe Who[ (18) MS.SULLIVAN: I don't, understand quite how In the type {1B) GTCC exac~y same of containerthat the This whether (is) this Is leading. Is a directquestion, (19) luel aesamblies put in? are (~0) or not theycouldplaceGTCC the backfill spaces. In (20) THE WITNESS: could do that. I would We {';,1) Would Ilke me you toby to rephrase, YourHonor? of packages costs (~.1) also indicatethat each the waste {22) MR. STOUCK: explain whyit's leading, I can (~.2) roughly about half a mS{on dollars.That'sa very Honor. asked Ihaycouldput GTCC the She il in (~3) Your (23) expensive package low-levelwaste for materials. (z4) repesiIe~.And said no. Thatwould he have been the (24) There mightbemore elficienl, more eIfacllve ways to why (2~ placeto man(ten hal, ratherthanhavecounsel {25) do[hal ButI think when analyze In our we this

Page3463 (I) leadhimto theexplanation. MS.SULLIVAN: He's provided somereasons. (e) (3) I think thereare some otherreasons, I'm helping end {~) him(S) THE COURT: record reflects the( - you The answer question. overrule objection. the 1'11 the (e) may Thankyou, Your Honor. (77 MS. SULLIVAN: THEWITNESS: Okay. As slmplistlcalty- my (el (9)sense frommy IS, understanding elwhat'sin Greater (10] Than ClassGlow-levelwaste,I don't th~kwecould (111 iust simply thesematerials backErl in pul In or ('~z} vadous spaces thedrifts, If youwill, the In (13) underground tunnels, you II will, In therel:~sltory , (1~ without some kind of packaging assurance and would get out so that t[ would nol (15} thesematerials (16} affect our ability to meet verystringent the EPA (17) standards. I Io the (187 Sowhet alluded earlier was fact (19) that wedohave doa vadely analyticalwork Io of (20) determine best thesemalarialswould haw have1o (21) would placed the reposllory,whattheywould be in be {?.2}placed what in, kind of canisters, what typeofwaste they be withou~ that (~) packages would in. And (2,~} addiilonal delag work, discuS( Ibis rimeto it's at (z5} saywhelher nottheycouldgoIn backfill, tf you or

Page 2]465 (1) envimnmentat impactstatemen|s, wehadIo look a| as (2}reasonably foreseeable altama~es, whatwedid {3) anatyze essen~alty thesematerialsendput end lake and H) them~n ~esepacka9~ evaluatethemas ~d of (~ the EISprocess. [~ ~at was~e epochwe look became was it ~} expedl~l, andwedidn'l ~t Io exp~d addilional ~y (8} analyticalwor~ was It kind of anouter~ound of (9} whatwemighldo. (lO) ~E COURT: Would~at solve the fee problem you fee (11} too, basausa could charge~e same ~ SNF? (~a) ~E W~ESS;~at might help w~ ~e fee. wouldhaveto look aL youknow, whatamount of (13) Wa t~nels wo~ld caus~ be bF (14] dfl[~, ff youwRt,new {~ ~ls. ~ara we~ In ~e ~S, as I remember, the~ (18) wer~ roughly ~000cubic meta~~f ~a ~ted~s (1~ ~atwere idanlilied In ~eEIS. Yout~nslata~al (18} to cubic ya~s. ~at's roughlya~ut2600cubic {19) yards.Sothal's goingto baquile a fewwaste (20} packag~ quite a few dd~s~al youwouldhave and (21) develop, you If w~[,inorder~ put ~ese malarla(s (~) ~ ~Bre. ~E COURT: Okay. Ms. Sullivan. (~) (24} MS. ~U~VAN: ~ank you, Your Honor. (~

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Reporting

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Office of Civilian Radioactive WasteManagement

Civilian Radioactive Waste Management System Requirements Document Revision05
(A00000000-00811-1708-00003)

Januarj/1999

15

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Title: Civilian Radior~:tive Wm~= Managem~'n~ SystemRequirement~ Documen| DI: A00000000-00811-1708-00003 05 REV

Pag=: 14

WasteAcceptance TransportationElement and shall accomplizh planningand s~heduling ar_.em'ding the pmvisians the StandardCantraet (10 CFR to of Par~ 961) and the EM/RW and NNP~/RW MOAs. Inmgratedplans for CRW'MS ~ctivities shall be d~veloped updated as ne-~Sedto and respondto changed data madoperatingconditions. Planninginvolvesallocating system "cap~eity, evaluating schedule requests, and establishing theCRWMS operations ~hedule. K. R=cord~ validationshall be initi~ed uponreceipt of Pureh;~.ser/th'~ucerlCustodian forms dv.s~bingthe SNF/'HLW1~ delivered. to L. Wasm Aceeptan~ Transportation and shall valid.amtitle and/or mmsfer re.sponsibility of ~d custodydocumentation the Ptm:h~.~er-APr~ucez, frum z/Custo:lians. 3.4 MGR ELEMENT REQU/KEIViENTS Thiszecdon contains the requirements allocated to the MGR Elcrrmnt. The MGR shall be designed to be capable of a~ommodating total inventory of SNF the and IqLW documented Planning Consideration 2.4.Q consistent with current (as in disposal concepts (e.g., I-Yr-W/DOE co-disposai}. However, SNF until the second repository is appruved MGR the operational capacity shall be limimdto 70,000M'FHM or equivalentof SNF I-ILW. and B. Thewast~p~kages shall be designed such that substantially complete containment the of wastecanbe demonstrated at least 1,000years. for Themonitored geologicrepository conceptshall allow the repository to be closed as early as i0 years tff-ter emplacement the last wastepackage to be kept openfor at of or least 100ycam frominitiation of wast~emplacement. designshall not preelddethe The ability to keepthe repositoryopen,with appropriatemaintenance monitoring, 300 ~d for year~~.f-ter irtidadon of wasteemplacement. Futuregenerations will make ultimate the dr.zision on whether is apFropdatc continueto maintainthe repositoryin an open, it to monitored condition to close the repository,brood development their own or on of criteria andlevel of cerufintyregarding ultimat-"repo~ltbry performance.

3..5

C~F ELE~ vd~Q~r, rrs

~ a CISF approved, followingallocatedrequirementa is the nhall be met. A. The CISFshall be designed to expedit~operations using a phttsed app~achwith by Ph0.m havingthe capability to receive and store licensed dual purposeand multiI purposesy~teras only and Phnse2 havingthe capability to receive and store SNF in licen.w.ddual purpose multi-purpose and ~ystems ~ individualassemblies the rates and at indicated Table3. in

HQO.19990112.t]001.0025

16

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DI: A000000(X)-(X]BI 1-170B--0~3 ~ z Tal~e,3. CISF Recelpl Rales (In MTHM EqulvaJent/Year) ot P~m.B Y~,,,t of Operation Comm~mhl~ SNF Govemmen[ ~armgad Nuedear

~,,,
II

~

, u~ ......

~B~=

TBD~ £]. The CISFshall have a minimum storage capacity of I0.0~0 of SNF, ~ C. TheCISF shall hay=a I-!LW storagecapacityat" C['~D D. The CISF shall be capable d Fcparing SNFand ELW oE-sitc transport. for

3.6 INI~P,.FAC~ REQDIR~ENTS
Thissection i~nfifies Acccp~c~ ~tcda for nucl~ mamd~s ~ d~umcnmd in ~c W~ Ac~p~cc S~cm R~u~mcnu D~umcnt ~A-S~) ~O~W~35 IF). 3.6.1 Waste Acceptance Transportation and - Government Agency Interface R~tulrememts Waste Acceptanceand Transportation shall interface with a~mpdatefederal, star,-, tribal, and local government agencies to meet legal, regulatory and operational requirements for mcepr.ance and transportation of SNF and ~W, such as route sel~tioa, approval, .~hcduling ~d notification, emergency planning and response, and security.

Rc~dpt in t.ffh tableu~cmly rnt=~ aFPlieabl= CLeF/.s if,, ~pra'¢~l. This Mid indu~~MO~C in Phz~rr. SINF

HQO, 19990 [:Z,0001.0026 | ~ "- - ....... ~::--." -I ¯ ~ "---=:----] 17

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HOUSEOF REPI'C.ESENTAT[VES[

I0S--212

ENERGYAND WATEI%DEVELOi~vLI~NT APPROPRIATIONS BILL, --.004

submfl.Lod following the REPORT TheCommiLLeeAppropdaL[ons oa subr~iL~Lhe[ollowlag rapor~ explanationa~ Lh~accompanying ma~ing bill appropria~io~ ~nfor e~" and wa~r developmentfor the ~scal year ending September 30, 2004,and for other purposes.

L OepartmanL Ocfens~Civ{l: of Corps of

~ood con~l, t,l~issippi River and THbu~Ho ......... Opera,ion and malnzanan¢~, general .............. Flood control and ~asm[ ~ergond~ ~mln~ativa ~rovis[o~ Genial p~[o~ ~u~au ~fRedama~oa: Wat~ and related 7 ?

~ou~ ........................

9

87

California D~y:Oetzp ~)~mrebellion ................... C~nz~1%'~lley Pr~]ec~ ¢es~unfund ................. 11 Ins

F_XHIHIT" ~

18

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DOE headRuartars, $7,774,000 Technical for Information Maaa~ment~ und Sl,O~O,O00 for En¢~ ~e~ ~ys~. Th~ for prog~m d~ectlon ~or ~eldoMc~ w~ r~du~ed S3,720,000 by and the ~ountt~nsfe~sd the Safeguards Sccu~ty to and Ene. ~e control l~velfor ~sc~ year2004~s nt the pro~amn~ount [ev~lafSc~enc~ Prog~m Di~ct~a~ ~ CommRtee r~commsndadon includ~ o~s~t or S4,383~000 an lot th~ s~e~rds sad security ~nrgefor r~mburs~le w~rlc, ns proposed thebudget ~n ~quest. gen~rM A reduction SZ,000,000 of h~ been applied theScience to accounh
Appmp~n~on,2G03 ............ Re.retarded, 2004 $144,0S8,0~ 335,000.ODO ~IBQ~4~,QOQ +174,Q00~000

Ap~p~on, ~Og3 ~u~[ ~UmaZ~, 2004

~he ~ede~]government has n char s~Luto~ r~pon~ibHRy, a~¯ ~ed by Confess ~e ~uclenr in WastePolicy Act of 1952, Rmended, p~vide ~he permnnent L~ far d~spasa] spent of rue[ and high-level mdioactive was~ Th~ Depa~menk ~ner~ of w~ ~qui~ed s~tute ~ccept by to ~ommercin] spent nuclear fuelfor disposal be#nning J~nua~ on 31, 1998, and entered legally in~ en[~rceable canL~c~ x~thuti[iL{~ ~ecuL~ ~ thatohli~tion. CortunotMy, Departmont beenunable meet that d~adth~ has ~ line, resulting n number ]awsui~ ~h~Depo~mant's in of ov~r failure to ma~t Rs sLntuto~ cont~c~Rl and ohH~tion ~ ~ow~ng and ~nnncia[ ]~abiHty avertha~~ailur~ Court Federal The of Cla~s has found Department be ~n b~n~ofi~contrnctun] the to obligationsand is proceedingdeta~n~ ex~at damage. ~ the of Th~ pdmn~ conssquenc~ oftlmDepartment's failure be~n to ceptlng spent nuclear is not, fuel however, ~is~snc~ the and damage clai~;it ~ thatv~t quantit~ commer~al of spent nud~ar ~us[rama~n tempo~ in stornge reactor a~ sR~ around ~ha count~, manylocated nearmajorpopu[a~on ~e Committee not qu~ioning cn~ant ~s the safety and security ofspen~ nuclear fuelstored commerda] tn accordanc~ at si~s with ~uclaar Re~l~ Commission cd~da. ~e Commtttc~ do~s, however, beHaw~at the so~sty and ~aau~ these of mate~nls b~ enhanced sooner the theyare pln~d the under~und in furyat YuccaMountain. the even~of September 2001, ~r ~I, the Commit[as believes is more~s~nt~al everto move £t Umn ~iwly get O~e Yuc~MounOi~ to reposito~ licensed, built, and oparatingtheearlier at possible Chronic fundi~ sho~falls, however, haves~ed the p~gram th~ ~ourc~necssso~t~ k~ap [h~ rapos~o~pro~amon ul~Th~~apartmant's latest schedule calls openin~ for the to~andbs~fln~g accept to spent fuel 2010 theearliest, ~a at owr t2 y~a~behind schedule. Mostrecently, Dap~mant the ~questad a t~O[of S~gl,000,000 the nuclear for wast~ d~sposn[ proem V~cal year 2003, received $d57,000,000, yet only a fundia~ aho~all

19

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THE UNITED STATES COURTOF FEDERALCLAIMS No. 01-249-C (Filed: August12, 2004)

TENNESSEE VAL~Y AUTHORITY,

Plaintiff,
V.

UNITED STATES, Defendant.

ORDER. The government's motionfor reconsideration, filed on Augusti0, 2004, respecting this Court's decision reported at 60 Fed. C1. 665 (2004), proceedson erroneouspremises. First, contrary to the government's motion, the Court madeno "finding that TVA could receive damagesbeginningin 1995." Def.'s Mot. at 12. R.ather, the Court explioitty found tlmt"DOE breachedits obligation to act on TVA's in goodfaith," 60 Fed. CI. at 674, and that initially DCSs occurred in 1997. Second,causation is an element of proof regarding damages,and the Court specifically denied TVA's motion for summaryjud~m'aent respecting damages.See 60 Fed. CI. at 675-76. Defendant'smotionfor reconsideration is denied.

s/Charles F.Lettow Charles F. Lettow Judge

2O

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Assessment Of Damages Northern States Power's Spent Nuclear Fuel Clahn

~chard J. Sieraek~ Kenneth P. Metcalfe The Kenrieh Group LLC

August 1, 2005

~d~S

r~

Chief Executive Officer The Kenrich Group LLC

~enne~th

p.~r~~

President The Kenrich Group LLC

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Protected Material BeDisclosed In Accordance U.S.CourtOf Federal To Only With Claims ProtectiveOrder

including NSP,took steps to increase the capacity of their spent fuel pools. 17 The increased capacity was necessary to accommodate spent fuel discharges until DOE to begin to dispose was of commercialspent fuel in 1998, as set forth in the Nuclear Waste Policy Act and the Standard Contracts. 1. Prairie Island Thespent fuel pool at Prairie Island was originally designed and constructed based on the assumption that spent fuel would be reprocessed in a timely mannerand would not require extendedon-site storage. The original capacity of Prairie Island's spent fuel pool was 210 assemblies. NSPincreased the licensed capacity of Prairie Island's spent fuel pool through a process called "reracking." Reracking entails removingold racks from the spent fuel pool and replacing them with "higher density" racks which can store more fuel assemblies by reducing the spacing between fuel assemblies. In 1975, NSPexpandedthe licensed capacity of Prairie Island's spent fuel pool to 555 assemblies by reracldng. In 1981, the pool was reracked a second time resulting in its current licensed capacity of 1,386 assemblies. The 1981 reracking provided Prairie Island with enoug space to store spent fuel in the pool until the 1995refueling outage. h The costs of the 1975 and 1981reracks are not being claimed as they occurred prior to the execution of the Standard Contract. Bythe late 1980s, NSPreasonably believed that it was highly unlikely that DOE would begin accepting NSP's spent fuel by 1999. As a result, NSPbegan exploring

various options available to store Prairie Island's spent fuel beyond1999. NSPwouldhave needed some additional storage prior to 1998 even if DOE performed in accordance with its had Standard Contract obligations. IfNSP had believed DOE going to begin accepting spent was

fuel from NSPin 1999, a third rerack of the spent fuel pool would have been performedat Prairie Island. The cost of this rerack is an offset to damages because NSPwould have incurred this cost had DOE performed in accordance with its Standard Contract.

~7 Thecapacity of the spent fuel pool refers to the total number spent fuel assembliesthat can be safely stored in of the spent fuel pool. NSPis required through the Certificate Of Needissued by the MinnesotaPublic Utilities Commission operate Prairie Island with enoughspace in the spent fuel pool to offload a full care of assemblies to for each unit. No such legal requirement has yet been imposed on Monticello, though NSP'sprudent operational practice is not to infringe uponthe ability to unload one full core into the spent fuel pool at Monticello.

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