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12. Counties 0fln3,o, California% and Esmeralda, Nevada v. DOE,925 l~.2d 1216 (gth Cir. 1991) Hdd: The Secretary ofEnergy's ~on not to designate the ~ounties "affe~ed units oflo~at government" was inconsi~ent with the NWPA. 13. TRW Environmental Safety Svstemgv. U.S., 18 Claims Court 33 (CL Ct. I989) Held: DOEwas enjo'med from awardi~ the sy~amts engin~ing and developm~t e~ntmct for the managementof the reposkory program to Bechtd Systems Mam~ement,

14. Nevadav. Watkh~, 943F.2d 1088 (9th Cir. 1991) Held: Claims under the NatiomlEnvironmentalPolioy Act ohallenging the ndeqtmoy seleg-tion of repository and sites were moot in light of the 198/statutory designation of Yue~:aMountainas the sole site for charact~h~afion. 15. Nevada v. Watkin.% 939 F.2d 710 (1991) .Held: The promulgation of siting guidelines for repositories (I0 CFR Part 960) w-as pro "hmina~de~isionmaking under the site nomination pro-Asioas of Sention 112 of the NWPA; juflk~l review was barred until the S~retary madehis final recommendation the Yucca MountZ.n on site. 16. In.The.Matter of DOEApplication 52338 (March 2,1992) Held: The State Engineer of Nevadafound that there was mfficSent unapproprlated water at the proposed source to appropriate 94.83 acre foot ofvrater per year (.2 ~abic feet per second flow) for ten years from NevadaTest Site weil J-I3 for use at YuccaMountainfor site characterization; the appropriation wouldnot conflict with exisfmg water rights; and tho - proposed use does not threatened the public interest. The NevadaEngineer also concluded that the monitoring plan proposed by DOE approved by the Pa~k Service is and sufl~dent to pmte~all adjacent water related resources, including those of the National Park Service at Devil's Hole National ]?ark. 17. United States v. Nevada, CaseNo. CV-S-90-065-HDM (D.Nev. May 13~ 1991) Held: Nevadawas required to process th~ DOE .applications for permits; the air and surface permits were to Im issued forthwith. 18. Nevada v. WatkJns, No. 92-70055, 993 F.2d 1442 (gth Cir. 1993) Held: DOE's interpretation of the payments-equal-to-taxes (PETT)provisions of the NWPA was reasonable; DOE'sprocedures allowed the State to makeits ownestimate of PETT and furnished appe~l an pro~e~s through DOE's O~fice Hearings Appeals. of and 19. In re State~. ofNevada, IBLA88-229 (June 22, 1994) Held: The State h~l standing before the Departmentof Interior Board of Land Management question to Bureau of Land Management's issuam~ of 13 year right-of-way-reservation over public lands near YuccaMountainfor site characterization purposes. - 15 SMUD 061156

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20. Nevada v..O~earv, 57 F.3d 1078 (gth Cir. 1995) Held: Section 113 of the NWPA committed she characterizmion to the Seewe~s ~on, and th~ Secr~ary did not have a duty to determine at the earliest possible momeax whether the ealc~-silk~ deposits at the site w~disqualifying. B~anseth~ Seer~tary was not required to promulgatethe siting gulde~es as rules, judicial revi~v of the siting guidelines was

21. N~ada v. OT*aty, 63 P_3d932 (gth Cir. 1995) Held: The Court of Appeals updated the district court determination that Nevad~had not madea showing und~ Rule 27 of the Federal Rule~of Civil Procedure that ther~ was su~iealt to pr~awethe testimonyof 27 scierMsts. 22. IndimmNfichiwanPower.Co.v,D_OE, 88F. 3d 1272(D.C. Cir. 1990 Held: In r~urn for th~ paymentof fe~s by trdfifies, DOE obligated to begin dispot~.g of the is utilities' spent nuclear fuel by January31, 1998. 23. N~vada v..OZearv, No. 96-70774 (gth Cir.) Ncveda~s seeking an order to compdthe Secretary to makepayments to the State for IvY 96 oversight and monitoring activities under Sections I 16 of the NV~A_ case is still pending. This 6. Consultation Requirements. DOE its predecessor agencies were founded in the and spirit of a war emergencywith the developmentof atomic weaponsas a pdnfflpal mission. This led to a culture of secreey and a priority on national security that sometimesovershadowed safety, environmental and public participation concerns. The NWPA adopted a sharply ffffferent approach. Se~ion Ill(a)(6) recognized that "State and public participation in the planning development repositories is essential to promotepublic cottiidenc~ in the safety of disposal." of Not only is any repository or storage facility constructed under the NWPA subject to NRC licensing and the public hearing process that entails, but vim.uflly every element of DOE's spent fuel management program is subject to extensive consultation and public comment requirements. As is appropriate for a programof this magnitudeand controversial nature, the tvS~sion Plan, the siting guidelines, environmental assessments, and consultation and cooperation agreements must all be based on public input. Such consultation is neverth61ess time consuming has given rise and to a numberof unavoidable delays. The following are some of OCRWM program stakeholders with whom consultation is either required by statute or carried out pursuant to various formalized arrangementsentered into in order to implement the NWPA mandates for openness and consultation: State officials-Sections 101, 116, and 117 of the NWPA require DOE consult ~¢ith a to state in whichit is investigating a site for a potential high-levd wastemadspent fuel storage or disposal facility. A state also has the tight to disapprovethe siting of a highlevel waste repository once a site has been selected by DOE recommended and to - 16 SMUD 061157

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1997

C, on~ess by the President. A state's veto can be overturned only by enactm~n~ a of law by Congress. DOEprovides grants to a state to ~ DOE's work when Depaztment investigating a poteafial sit~ for a repository or storage fadl~y in th~ is DOE also provides grants to a state to assess and mitigate the soelal and ceonomi¢ impacts s'rte investigation. refused em~into consultationcooperation of Nevada to a and agreement with DOE and has continued to oppose the program. Although DOE provided funds to the State for oversight of DOE activities at YuccaMountain, th~ Stat~ has used a portion ofthose funds to oppose DOE's efforts. U.S. General ~g Office, Nevada's Use of'Nuclear WnstCG3"ant Ftmds~ GAO/KCEX) 96-72 (1996). County officials--Under Section 116(c) oftheNWPA, provides DOE oversight grams counties other and [oe~d governments ithasdesignated that as"affeeteaw pceamfial bya high-level storage clis~sal waste or facility. must DOE make following the payments a to local governmentwims¢~risdiction contains a repository or monitored retrievable stom~ facility site: paymentsequivalent to the t~xes that wouldhave been paid if the clig~le jurisdiction could tax federal activities ~t a repository or storag~ facility; impactnssistanc~ paymentsnecessitated by the facility siting, comtruction, mdopsration; and pa~m~mt for an on-site representative, designated by the local government whichthe site is located, in to oversee DOE activities at the site. Indian Tribes--Treaties, ease law, executive orde_.~ and agreementsbetween the Federal Government Native Americantribal governmentsguarantee specific rights to the and tribes and provide, the basis for a government-to-govemmen~ relationship. Under the l'.%a, ~rpA,hdbez ~e de~ated bythe Secretary of the Interior as "affected" by a that ¯ potential site (as defined in Section 2 of the NW'PA) the same rights as al~ed have states. Although Secretary of the Interior has not designated any tribes "affected," the DOE had extensive discussions with tribes on the issue of their designation. has Regional and National Organizations Representing Tribes (Nevada Indian Enviro.nmental Coalition, National Congressof American Indians, Int&tribal .Transportation Assoeiation~--Many individual tribes m'bal and organizations have become involved in spent nuclear fuel and high-level radioactive waste'poli~'y decision-making,including repository siting madthe OCRWM transportation program. For example, the National Congress of American Indians, which has a cooperative agreement with OCRWM, monitors and reviews legislation on the OCRWM program and advises the Department and other Federal agendeson potential impacts to the tribes fi'om spent nuclear furl and high-level waste transportation.

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Transportation External Coordination WorkingGroup {TEC./WO)-Disposal spent fnel of ina repository orcentralized temporary storage facility r~quire will transportation oftens of thousandstons spent of of fuel publio on highways, railroads waterways. and The Transportation External Coordination Working Group. whose members represent organizations ofstate, tribal local and governments, and pmfesslonalindustrial and organizationshistorically followed transportation that have DOE activities, provides a mechanism continuing improved for and coordination between appropriate dements, DOE other levels government,outside of and organizations a role preparing the having in for required transportation activities. National Transportation Orasaniz~ons (Americzn Association of State Hi~V Transportation Officials, Commercial Vehicle Safety Alliance, Association of Amerlcan Reaqroads~--Theseare national transportation organizations that promotethe safety of commercialtrack and rail shipping nationwide. The Com-mercial Vehicle Safety Alliance ¯ (CVSA)maintains a cooperative agreement with OCRWM focuses on developing that commercialtmekinspection package for spent fuel..All three organizations participate in the TECAVG. National Technical .Organizations (National Association of RegulatoryU.tility Co.~-nissioners, Conference of Radiation Control Program.Directors)--The ehie~objeotive oft.he National Association of Regulatory Utility Commissioners ('NARUC) to serve is consumers seeking to improvethe quality and ~ffectiveness of public utility regulation by in the United States. NARUC's Nuclear Waste Program was established with the objective of bringing together the nuclear industry, regulators, environmentalists and others so that site characterization studies leading to the establishment of a high-level nuclear wnste repository could proceed. The Conference of Radiation Control Program Directors (CRCPD) a nonprofit professional or~on comprising individuals in state is and local governmentswhoregulate and control the use of radiation sources, and of individuals--regardless of affiliation-who have expressed an interest in radiation protection. Both NARUC CRCPD and maintain cooperative agreements with OCRWM,

- "i8 SMUD 061159

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1997 Emergency Man~ement/~esponsc..Groups-Emergency managcmendrespons~ groups have provided input inlo policy dec~onmaldng implementation of the Section 180~¢) for grant program ofthe NV~A.A numb~ ofthesc groups m'e ncmbcrs ofthe TE~JW'G. In addition to the forcgoiug formal consultation s,,-rangemcats with goverranenmland t~lm~cul orgauizafions, the Departmcm must consult with a larg~ numberof other stakeholders on a structured or more ~nter~ttent basis. Chizens, contract holders, utility industry trade o~ons, educational and proFessior~ orga.nizadoas with an interest in high lowJ radioacti~ waste disposal, equipment suppliers, and labor unions ar~ noteworthy amongthose stakeholders whohave been active parti~pants in reviewing, commenting and partidpating in varinus ways on in the h~gh level mdinactive wast~ and spent f~el d~sposal program. W'~thparticular respect to citizens, thdJ- persp~.iv~ about the OCKWM program reflect thdr roles as taxpayers, consumers (and rat~aycrs) of electrlc po~r, commur~ry residents, workers' rights advocates, ~nvironmental~sts, pubfic health advocates or concerned paumts. Citizens have becomeinvolved ~n the OCKWM program by parfidpating in OCKW~-run public participation eve~s, by using ~assroots organizing methods, by communicating theh" views to theh- el~cted ot~dals on howto amend the NWPA~ by commenting on rulemal~s and Nt~PAdocuments. As an indication and of'the level of c'~¢~zeninterP~, DOE's EA'son r~ne candidate r~po~itory sites generated 20,000 public comments.The more reccm seeping notice aanounc~ngDOE'sintention to prepare au Environmental Impact Statement on Yucca Mountain has generated commentsfrom d~erent ind~duals and organ~afioas to date, and more are continuing to comein even though the dc~d~uefor comments has passccL As noted above, it is a fundamental premise of the NWPA consultation with this broad range that of stakeholders is necessary to build public confidencein the high level radioactive waste disposal program. Moreover,input fi'om these stakeholders has played an integral role in shaping the programand allowing it to move forward. Nevertheless, carrying out the required consultation has contributed to the unavoidable delays that the programhas experienced. CONCLUSION For all the foregoingreasons, I haveprelirr~narily deten-aiined that the Depart.meut's delay in beginning acceptance of spemfuel was unavoidable within the meaningof ArtiCle IX of the Standard Contract.

SMUD 061160

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A tmrnb~of rvspondet~ indicated their belial'that the Departmenthas a statutory and conmmmal obligation to b~giu spent fuel acceptan~ ".m 199B. The Department r~cognizes that Section 302 of the Nuclear Wast~ Po~cy Act authorizes the D~partmentto eater ~uto conl~acts for the d~spom]of~t n~c]e~ fuel The Departrnent farther recognizes that Se~ion 302 specifies that the contracts shall provide for the I~partmem begin to dispo~ of sp~t furl not to later than ~anuary 3 I, 1998. Tim Departmentbdieve~ that th~ Standard Conl~.ct adopted by the D~partmem pure.ram to Svction 302 and eme~edinto byte contyact holders specifics the available remedies in the c~cmthe Depamncm is unable to meet the January 31, 1998 dine. Commenr Many re~pond~ats stated thor belief that the Nuclear Waste Poli~y Act does allow for claims of delay in the commeac~ra~nt waste acc~ptanc~ and. th~'~ore~ of the Departmentcannot utiiiz~ the Ddaysprov~inn of the Standard Contract as a rcm~ly for the de~ay. Other r~pond~ats r~ated thdr bdicfthat ndth~r the Ddays provi~on nor any other Standard Contra~t provision limits their ]~al rights mad r~ra~li~s or govvmsthe nature and mount of damage, nor limits th~ options available to DOE mitigating the harm caused by tbe dday. for While th~Nuclear Waste Policy Act authorized the Departmentto enter into contracts for the dispo~ of spent nuclear fuel, it did no~ prescribe hhe consequences a potential inability by DOE satim~yits obligation to begin of to disposal by January ~I, 1998. The Standard Contra~ however, address~ this potential and provides an administrative remedyfor such a dday. The Depm'tment believes that Article IX- Delays, of the Standard Contract is applicable. As explahexi in the accompanying letter, the Departmentbelieves Article XV Ame~dmcats, can al~o be applied to the o.u-r~nt ~'cumstances to m~t~ the impacts of the delay on particular contract holders. A numberof respondents indicated that any delay in begim~gwaste acceptance was avoidable~ not unavoidable, a~ they believe that DOE suggested in the ConL,Tm'tingOfficer's letter of December 1996. 17, ARer reviewing record Office C~an the of of Radioactive lV'~nagcmtmt Waste activities, theDepartrncnt hasreached pr"ehminary the determination delay that the in waste acceptance is unavoidable as defined under Article IX.A oft.he Standard Contract. This issue is discussed in fur~. er detail in the ContractingOfficer's Preliminary Determination which accompanies this Summary Comments of and P,e~ponses.

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Many respondents expressed their concern that the D~partmem's "Dece, mb~17, 1996letter inappropriately attempts to shift the respor~'bility for dealing with the delay to the Purr.hasers. Response: Through its letter of December17, 1~)6, the I:~arUner~ was r~king intmt from the Pumbase~ actions the Departmentcould take to address the delay. Tbe on Departmentrecognizes that, under the terms of the Standard Coatra~ it bears the respotm'bility of determiningthe contractual consequences any delay on its part. of Somerespondents asserted that the Department'sposition that it lacks the authority under the Nuclear WastePolicy Aet to provide interim storage i~ incorrect, and that k must immediatelybegin a programthat will allow it to begin spent furl acceptance by .lanua~ 31, 1998. One respondent suggested that D~partmem immediately be~n the d~gn and ~onstru~fiun of an interim storage

Und~Section 145('o) of the Nuclear W~stePolicy Act, the S~-:retary maynot sele~ a site for a MonitoredRetrievable Storage FaUlty until the Secretary recommends the Presidem the approval of a site for the d~vdopment to era repository. The S~'~retary's r~ommendafion, turn, must b~ preceded by in scientific charaetedzatlon analyses, which as yet have not been completed. Under current cir~ces, the Department boli~s it lacks the authority to provide interim storage services. Nevertheless, it has begungeneric design workfor an interim storage facility, whichactivity is permitted under the Act. Some respondents argued that, if the Departmentdetermines that it lacks ma~&orPty to provide interim storage, it must immediatdy to seek authority flora act Congress. In addition, a numberof respundents requested that the Department support ongoing legislative efforts to amend Nuclear WastePolicy A~t. the The Administration is committedto resolving the comple~spent fuel storage issue in a timely and sensible manner,consistent with sound science and the protection of public health, safety, and the environment.The Administration believes that the pendinglegislation undermine scientific would the crcch'bility Nation's of the nuclear waste disposal program in effect, defignafing a site for an interim by, storage fac:~ty before the viability of that site as a permanent geologic repository has been assessed, and therefore it does not support such legislation.
Comment:

A numberof respondeots suggested that some form of compensation might be appropriate to address the impact of the delay, but that compensationwouldnot be a substitute for performance.It was also suggested that the source of the compensation must not be from the Nuclear Waste Fund. One respondent noted the Departmentis precluded from preferential or disgfiminatory treatment in implementationof the contracts. - 2 SMUD 061162

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"Fne Department remains committedto accepting ~ ~d as soon as practicable under the authoriIy providedby the Nuclear Polioy Act. As noted above,Waste the Department made preliminarydetermination has a that the delay in beginning waste acceptancewasunavoidable,as defined in the Standard Therefore, the appropriate remedy under the StandardContraotisan adjusaneatof schedules for waste acceptance. TheDepartment also recognizes however,th~ has a contractualrelationshipwith eachcontragt holde~,con.~istem with XV the StandardContra~DOE willing to discuss with indi~dual cont~a~t of is holders amendments their own~o~ that can address th~ delay in a to mutually-agreed manner.Whileeach contra~ holder faces unique circumstances, the Department recognizesit has an obligationto treat all contra~holde~in a also fair and equitable manner.TheDepaxtment understandsthe indust~'s concera regarding use of the NuclearWasteFundfor compensation its dday, and w~l for take this conc~rainto accountas wemove forward. Anumber ofrespondems cited the recent Department actions, such as the re,am of highly-enriched foreignresearchreactor fuel andthe settlementwith Public Servic~ Colorado which of ('PSC) resulted Department's rifle inthe t~dng and responsibility Fort Vrain for PSC's St. spent fuel, examples Department's as oftl~ ability to begin spent fuel acceptance.Theysuggestedthat the Departmem considersimilar actions respectimplementing waste with to its acceptauc~ obligation underthe StandardContract. TheDepartment's action seeking the return of U.S. Government-provided highlyenricheduranium spent fuel fromforeign research reactors wasmade further the to Nation's long-standingpo'ficy of reducingw~pon pmlif~fiunf~k of strategic nuclear materials pursuantto the responsibility of the Department underthe Atomic Energy Act. Thereis no parallel between that actiun and the current situation with commercial reactor spent nuclear fuel. TheNWPA grants specie authorityfor DOE disposeof commercial to spent fi~al; the particular limits in the statute on storageand disposal precludereliance on anymore general aut~. rity in the Atomic EnergyAct. Theactions taken with regard to PSC'sFort St. Vrain spent nuclear fuel werethe result of a 1965agreement between Atomic the F_.ncrgy Commission PSCunder whichthe g6vemment and agreed to take title to spent fuel fromthe Fort St. Vrainreactor demonstration project in connection with the research and development purposesassociated with this demonstration project, whichwasundertakenpursuant to the Atomic EnergyAct. Comment: Anumber ofrespondantssuggested that the Department consider various arrangements takingtitle to spent fuel that is subjectto delayedwaste for acceptance and, in some cases, storage facilities that wereconstructeddue delayed waste acceptance.

- 3 SMUD061163

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As indicated in th~ accompanying letter, the Depac~memim~tingcontract is holders to proposepossible amendments their individual contracts pursuam to to Article XV the Standard of ConU'act relieve the particular hardshipsthey will to experience the result of the Department's as inability to commence fuel spent acceptance the dates in their current deliveryschedules. on Onecommemor suggested the establishment of a customeroversigh~group to mo~orthe Program's progress. Anoth~suggested that th~ D~'tmentd~vclop a proposal for r~olv~gthe current impassewithin 30 day~and m¢~ with ~akeholderswithin 60 days.

Onecoramentor suggestedthat ths Department revise the basis for allocation of wasteacceptance capacityfromthe current "oldest-fuel-first" basis to a methodology is t~ed uponthe need of the contract holder. Another that suggested that the Department grant priority vr-,~te acceptance eapa.~.tyto shutdown reactors, The Department is wing discuss individual to with contract holders amendments totheir individual contracts may that address particular With their needs. respect tothe issue delivery of schedules, how~wer, Department con the rema~ .c~-ned that granting in priority one toany contract orinchangingbasis holder the for waste acceptance allocation, adversely the itmay impact waste acceptance status ofother contract holders. Some respondents requested that the Depamnent expedite workat Yucca Mountain completethe repository as soon as poss~le. to TheDepartment remains committedcompleting at Yucca to work Motmtain to assess viab~tya permanent its as geologic repository and, in1998 assuming it that isviable,proceedexpeditiously to as aspossible a suitability toward determination, licensing, and operation.

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Sacramento Municipal v.U.S No. 98-488C March 29, 2005 Heritage Reporting Corporation Page 1826 to Page 2214

CONDENSEDTRANSCRIPTANDCONCORDANCE PREPARED BY: HERITAGE REPORTING CORPORATION 1220 L Street, N.W. Suite 600 Washington. DC 20005 Phone: 202-628-4888 FAX: 202-371-0935

3O

E~SA

Case 1:01-cv-00116-FMA
Sacramento Page 2134

Municipal

Document 189-3
v. U,S No. (1) (2) (3) (4)

98-488C

Filed 10/13/2005
March 29,

2005 Page 2136

Page 11 of 20 XMAX(78/78)

(1) Clinton, (2) Q. Andwhattype of facility did that propose (3) or envision? A. That was, as I mentioned eadier, strictly (4) (5) (6) (7) (8) a storagefacility, one that could be deployed very quickly andwasrelatively inexpensive build, and to

I shouldmention, oneof the jobs, as I went in through my resume the program,whereI headeda in (9) division to developa topical safety analysisreport (1o) for sucha centralizedinterim storagefeoili#/, what (11) wecalledit at the time. (12) That wasin response the legislation to (r 3) that waswinding ils waythrough Congress,such that (14) if the Department receive authorization, then we did basicalty go build the facility, as soonas we (15) would and (16) had a site from Congress deploy that as quickly (17) (la) (19) (20) (21 (22) (23) (2,~) (25) as possible. Q. Now,I neglected to ask you this immediately before. When were tafking about the we Nuclear Waste Negotiator, you indicated there wasa provision in the '87 Amendment regarding the term Acl of service of the Negotiator? A. Q. A. Yes. Andwhen that term of service expire? did In early 1995,I believe.

(5) (6) (7) (8) (9) eventually got standardsout of ~he Environmental (10) Protection Agency the year 2001, and shortly in adoptedthose, we made site our (11) thereafter, the NRC and we're now movingforward to (12) recommendation, (13) submit a license application for YuccaMountain. Q. And you had mentioned that- that (14) (is) particular piece of litigation youjust mentioned, (16) that started in 1987? A. The standard was remandedin 1987, yes. (17) Q. Now, you had also just referenced an EPA (18) (?9) standard. Are there, are there other federal that are involved in the (20) agenciesor departments for disposal of commercial spent nuclear (21) program (22} fuel? (23) A. Yes, there are various federal agencies (24) that havean impacton it. (25) Q, What type of federal agencies are, have an

determination, which leads to a site recommendation. Soit wasn't until Congress stimulated the processin 1992,in the EnergyPolicy Act el thai year, of 1992, which directed the EnvironmentalProlection Agency to contract with the National Academy Sciencesfor of themle do a study on specific slandards for Yucca Mountain. After the Academy finished their report, we

(r) (2) Waste Negotiatorafter that point? (3) (4) (5) (6) (7) (8) (9) (10) (11) (r2) (13) (14) (15) (16) (17) (18) (19)

Page 2135 Q. And was ther~ any other office of Nuclear

A. No, there was not. Q. Now, you had referenced earlier, in your testimonyregardingthe MRS, lawsuit or litigation a brought by the state of Tennessee regarding the Department'sMRS submission, and we can refer ~o the period of time you were in OCRWM, through 1998. 1985 Was there other instancesof litigation involving the OCRWM program? A. Well, there were many,manylawsuits that werefiled by the state of Nevada, vaedus by utility organizations. Youknow,in terms of one that affected the program,[ wouldsay there wasa lawsuit brought by NBDC against the Environmental Protection Agency's standard repositories, if youwill, for health andsafety standard, wherein 1987that standard was remanded. Andas a result, that did affect the

Page 2137 (1) impact or affected the OCRWM program? A. Well, certainty, the Nuclear Regulatory (2) (3) Commission, Act requires that any of our the (4) faciliffes be licensed by the NuclearRegulatory so (5) Commission, certainty, they havean impact on our ab[lity to proceed.TheDepartment Transportation of (e) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) has regulations in effect for movement high-level of radioactive wastematerials. TheU.S. Navy's involved from the standpointof they're providing us our fuel The Department Air Force is involved of from the standpoint of wehave their ]and, we want part of their land in order to build Yucca Mountain, the same thing is true for the Bureau Land of

(2o) Department's ability to move forward and site a (21) repository, since wedidn't havean underlying (22) environmentalrute in place that had to be adoptedby and (23) the Nuclear Regulatory Commission, from that wouldalso use ~hose, use tha~ (2,~) point, the Department (25) standardas a guide to make site suitability a

Management. those are the federal agenciesthat So cometo mind. Q. Now, you had mentioned the NRC. What ro~e do they play in the Depadment's efforts to s[te and or (19) operate either MRS a repository? A. As I mentionedearlier, the Act requires (20) (21) that all of our facilities be licensedby the Nuclear so (22) Regulatory Commission, without their approval, we {23) cannot proceedto construct or operate any (24) facilities. Q. And you also mentioned the EPA, I think, (25)

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8SA (1) (2) (3) (4) (5) (6) (7} (8} (9) (10) (11} (r2) (13} (14) (15} (16) (17) (18} (19) (2o) {2t) (22} (23} (24} (25)

Sacramento Case 1:01-cv-00116-FMA Municipal v.U.S No. Document 189-3 Page2138 dudng testimony your about other litigation. What impacthasthe EPA on the Department's had Civilian RadioactiveWasteManagement program? A. Well, they, by the Act, are required to provide rebosilory the Iong-lerm isolationstandards, if youwill, and without those place, in the Depadment, again, cannot-the NuclearRegulalory Commission cannot adoptthosestandards within their implementing regulations,andas such,the Department, NRC the wouldnot be able to issue a construction authorization anoperating or license for anyfacility that wehave, repository any facility. Q. Andyour work with OCRWM, the has involvement the federalagency EPA of like actually affected the progress that DOE been has able to make with the radioactivewaste pragram? A. Absolutely.As [ mentioned earlier, we could not move forwardwi~hthe site recommendation until wehadthe regulations place,andfrom1987 in to 1991 to 2001 the pedod timethat it was in took the Environmental Proteclion Agency finalize to standards, which might familiar with the fact you be that part of that standard remanded another was by lawsuitlast year,which again,something is, that

98-488C 10/13/2005 Filed March 29, 2005Page 12 of 20 XMAX(79/791 Page2140 (1) also the defense appropriation comes every thai in (2) year. (3) Q. Now,you hadmentioned appropriation. How (4) does Department the address appreddation its for (5) Congress annualbasis? on A. We follow the same processas ether federal (6) We is (7) programs. submit-our budget part of the of budget, that's part of the and (8) Department Energy's (9) President's budget, which goes Congress its to for (10) disposition, it's a faftly standard so bedgel process that anyother federal program would have. (11) (12) Q. Andcan you describe what's beenthe appropriations or (13) history of Congressional (14) Congressional funding for the OCRWM program, say, (15} since 19857 at (16) A. Since1985,I think, if youlooked what (17) werequested whatwereceived,it's roughlyabout and (18) 1.7 billion dollarslessthanwe asked overthat for (19) timeperiod.If youwant lookat, say,upto the to (20) point of 1998, there were, that was about of half (21) that, so about850million was appropriated not by (22) Congresswell, 850million less than what the (23} Department requested appropdated Congress. was by (24) Q. Is there a, for a particular year,canyou of the (25) give the Courtanexample whatyoumean,

(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)

Page2139 the Environmental Protection Agency in the process is of attempting cerrecL to Q. Thankyou, Mr. Kouts. Now,the OCRWM waste management program, you describefor the Court can how program actually funded? the is A. It's, it's funded essentiallyby two appropriations.One the Nuclear is Waste which, Fund again, there's a - when Act was the passed, they directedthe Department enterinto contracts to with theutilities. Basically, utilities were pay the to onerail per kilowatt hourof energy produced and sold. That's funding one stream, youwill, for if the program. Theothergoes Ihe lact that President to Reagan, after recommendationthen Secretary by Hodel, made decisionthat wewouldnot havea separate the military repository a repository military or for waste, that theywould be colocated one. and a~l in As a result, wehaveanotherfundingstream which comes of the defense out appropriations, call it we the 050account, where get fundingalso for the we program, whichcan only beusedfor disposa~ purposes at Yucca Mountain. Sowehave b,,~o fundingsources. is the One Nuclear Waste Fund receipts that come andthen in

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13} (14) (15) (16) (17) (18) (19) (20) (21) (22) (23)

Page 2141 fundingwas less, the appropriation tess than was what wasrequested? A. Sure.Anexample, instance,in the for 1996 timeframe,andI'm verymuch familiar wilh this, we[equested miltion, wereceived 630 315 million, andthat caused program basicallygo the to through rathersubstantial a reduction its in contractorresources. actually, if youremember And the timeframe,therewas greatdealof interest a Congress try to abolishthe Department Energy. Io of Andthere was bill that was a submiSed which would basically lake our program, the take rebositor~ program all activities retated and to and give tt to the Army Corps Engineers. that of At pointin time,at thatpointin time,we that's how viability assessment born. the was It was essentially proposal the a from program to how wouldgo andcomplete work, as we the the si~erecommendation,a ~[cense and application, hoping that Congress wouldfund the Department do to it, and takeit away giveit to the Army not and Corps Engineers. of Q. Andwhatwas outcome this viability the of (24) assess ment,was that aclua~lysubmitted Congress? to A. Yes,it was.Thatwas first big iob Ihe (25)

32
Heritage Reporting Corporation (202) 628-4888 Page 2138 to Page 2141

Case 1:01-cv-00116-FMA
Sacramento Municipal Page2142 (1) hadwhen became Yucca I a Mountain liaison. That was {2) e document wassubmitted Congress, that to and faidywell received, wehad that a (3) basically,it was (4) pathforward terms gettingto a sire in of (5) recommendation Yucca for Mountain, wesurvived so (6) thatcrisis. in (7) Q. Now, your view, Mr. Kouts,did the (8) Congressional appropriations that youdescribe have (9) anyeffect on DOE's effods to beginacceplence ot (10) spentnuclear fuel in 19987 (11) A. Wail, I think - cedainly,if youlook we the (12) overthe history of the program, did not have resources, haveall the resources werequested, that (13) (14) to dothe work we that wanted do. It's difficult to (15) to saywhether not wehadgotten the or nil (16) resources, whelher that wouldhave made difference. a (17) Mysense it probablywould is havehelped somewhat (18) ourability to dothat, but tha£s something you'll (19) never know. COURT: you in competition with Are (20) THE (21) this private entilythat's a project there out in (22} Utah? mean, realistic is that? t how (33) THE WITNESS: "competition" is an Well (24) interestingword. think that my I understanding of (25) that project,and goback the site Ill to

Document 189-3
v.U.S No. 98-488C (1) (2) (3) (4t (5) (6) (7) (8) (9) (lo) (11) (12) (13) (14) (15) (16} (17) (18) (19) (20) (21) (22) (23) (24) (25)

Filed 10/13/2005
March 29,

Page 13 of 20

2005 }=age2144 SoI don'tthink wewere competition, in I think, I think that was effort that was an undertaken by utilities to - some believe was issueto it an put pressure to the Department perform.Others on to believe i~ was good-faith that a effort for them to store their fuel if they can'tput it on-site any longer.ButI never really felt that we in were competition with them,but wehaveleemed fromthem. MR.DAMELIN: I mayhave e moment, If Your Honor? THE COURT:Sure. MR.DAMELIN: Thankyou, Your Honor. ~ have further questions Mr. Kouts this time. no for at THE COURT: have, I'm cudousabout a I couple things. The money is paidby the that utili~ies, the taxes it were as basically, that went into the fundbasically, that was supposed beused to for Yucca Mountain everything and else, youcan't takemoney of that unlessCongress out authorLzes it? THEWITNESS: That's correct. THE COURT: is that so, is it in How legislatton, where it in legislation? is THE WITNESS: - I think that decision The was made the early daysof the program, in that we wouldgo through standard the budgeting process of

Page2143 time there was great deal of a (1) recommendation ~rame, f2) concern, therehasbeen,that that proiect and (3) become of a defacto repository, there'sno kind if (4) progressmade Yucca on Mountain. (5} And think the Department's the I view, has no in ,.. (6) Department absolutely involvement it, and funded. doteam it, We from (7) il iS totally privately (8) fromthe standpoint wehave of attended licensing the how (9) hearings,andwehaveseen they'vedealt with (10) technical issuessuch airplane as impacls, you, if [11) will onthestorage field, et cetera, the but (12) Department takena very hands-off has adJtude in (13) relalion that. to (14} We believethat the bestremedy, this and (15) has been statedin the testimony beforeCongress by Abraham other DOE and officials, that the (16) Secretary (17) best way make that that is not a permanent to sure (18) facilibj is to make progress Yucca on Mountain. And (19) at the timeof the site recommendation, werea there with fromUtah to (201 vadetyof meetings the senators (21) try to encourage to votefor Yucca them Mountain from (22) the standpoint it would make that the of help sure (23} PFS project wouldnot be permanent wouldnot be and (24) implemented, we made if enough progresson Yucca {28) Mountain.

(1) (2) (3) (4) (8) (6) (?) (8) (9) (10) (11) {12) (13) (14) (15) (16) (17} (18) (19) (20) (21) {22) (23) (84} (25)

Page2145 ~hegovernment. THE COURT:Uh-huh. THE WITNESS: there are a lot of people And within the program feff weshouldn'thavegone who that way.But the way we'restructurednow weare is just like anyother executive branch organization. We submitour budget,the Office of Management and Budget reviewsit, makes their ownjudgment. have We to compete fundingwithin the Department's for cap, ff youwill, what Department Energy going the of is to get in anyoneyear, wehaveto compete with. THECOURT: What OMB puts on you? THEWITNESS: What OMB puts on us. And also, there havebeen instanceswhere eventhoughwe wouldcome with additional funds, froman OMB out perspective,we've gotten less because wanted they t0THE COURT: that money sgting So is someplace an account,accumulating In interest essentially? THE WITNESS: That's correct. It sits in the Treasury, there'sroughly and about billion of 16 it right now. THE COURT: newbriefing project for So everybody, wonder my ] what authority is to issuean

33
Page 2142 to Page 2145 (202) 628-4888 Heritage Reporting Corporation

Case 1:01-cv-00116-FMA

Document 189-3

Filed 10/13/2005

Page 14 of 20

Tennessee Valley Authority v. U.S " No. 01-249C July 11, 2005 Heritage Reporting Corporation Page 1264 to Page 1560

CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED.BY: HERIn-AGE REPORTING CORPORATION 1220 L Street, N.W. Suite 600 Washiogton, DC 20005 ¯ Phone: 202-628-4888 FAX: " 202-37~-0935

34

Case 1:01-cv-00116-FMA
Tennessee Valley Authority Page 1420 document, sir, whetherthis is a document that was adopted by the Departmentof Energy? A. Well, if wego ta the top; if yougoto the upper left comer, you can see, "DOF_JRW, revised rupdnt," so it's basically, yes, it's basicallya DeparknentsJ document. Qo Okay. Now,if you turn to pagePNL473; Mr. KOUts.Under the heading,.'malhnd~ogy and: . .:.. Aesumptioes,= do yea.on~ ~t? .A. Yes. Q. Andean you remind iJs whatis, mbantb~ that term, "Metbed~egy and AesumplJ(~s? principal assumptions, ~ key aesumpl~s about

Document 189-3
v. U:S No. 01~249C .. (1) (2) (3) (4) (5)

Filed 10/13/2005
July 11, 2005

Page 15 of 20

(6) (7) (8) (9) two volumes, which were rather (10) this, if sorneone caredto readit. (11)

Page 1422 Q. ~nd, Mr. Kouts, whatis this dac~t? A. T~is is volumeone o$ lf~ propoeaJthat 1 mentioned eadier. This was the summary d~cument. It was- an aside here,-that whenyou submit large documents Congress,it's always nice to hav~ to smatldocurnentthat~ummarizes'~becaeseit*~.:-.: probably the ooly one that they read. So this was~ basically a summary the proposals.andthe othe~ of massive, a~ied..

A. I was one of the staff people~lb davelof~ed:. (13) (14) it,alongwithotheraspects-oftheothertwo :. (16) Q. And! netice in th~ upperright-hand ,.~..:.::. ~ (17) port,on here, there Csa numbar..It eays, (18) and then several numbers aifer that. '.~[19) A. Right. " . ¯ ~..,'/ (20) Q. What does thatmean? ...... .. - :'- ~'i:c

irr~err,~qlation of the program that time, under at which the analysis wasunderta~~n. Qo Now,at the, that pagegee.~on,thoon beliers, essumpticos gee~an to the next page: I ~' wonder yea could turn to the next page,pieas~? if Andif you stop ~ght-there? ~ yea~ "l~ne timt .:.~ bulletsays, ~OparationalStart=updatesfor the : repositories," andthan if says, "First repository 1998,secand ~regesitory in 2008." Doyou s~e that?" Q. Andthen belowthat is ainotherbullet. It.

(23): issued by the Department,and that's the DOE:

Page 1421 says, "First repository receipt dates-for'span~ouc~earfuel," andthere are So~e rete~ there. It. " says, "400 MTU three yeam~ MTU year four, fbr 90~ in 1,800 MTU year five, andthen 3;000~thereafter." , in What your understar~:ting, Mr. Kouis, bf those'two is bullets under the heading, "Methndotsgy.and Assumptians,"in this c~S~? ¯ ": : " " : : A. Well, the essuntpt~"~Sesndinthweaalysis; wereessediJally~hatthe first mgesitory wneld:¯ ,~ ' T. begin eparatlanin 1998,that it wouldbe'~ethe ramp-up rates; target ramp-up rates that you son-jest ' belowthat, the 400, 900, 1,800, 3,000, and second repository wouldalsb begin operation in this casein Q. N~,v, Mr. Kouts;in 1~3kingat these. bullets, I dou't see a-referenceto the MRS= Ooyou .' Imow why that is? ..... A. Esserdlally because this wasreitect~ng the authorized system ~ the MRS was net.auth0rized~. Q. Mr. Kouts, if you could please tom to DX~:.: now,48? And this is a daoumect entitled, "Monitored Retrievable Storage Submissionto Congress; Volume One, the Proposal," dated March1987. Do you see. ~ that?. .. A. Yes, I do. ~ .....

Page 1423 (1) would moveforthe admissionof Exh~it-DX~4~.- - : .. (3) MR. SMALL:'We have no objectiou~.¥oor, .... - ......

, ,:. ¯

(6)

(Defendant's Exh~it Number was {eCe~ved". 48

Q. If youwould turn;. Mr~ Kouts;t~ page:3~17~ ~,::.-; ~. of this docurnent,,and it.says ,~ Execuifve!Ov~m,~e~,, (1~), there, and I think you mentinned'that.a A. Yes. (12) (13) Q. What was the purpose of this? . A. (14) Again, if's a summary what.the~what's of contained in the proposels~'=dwhatit's being d~w~e (9) (16) ~n fulfillment of, whichis to respond Section141 to (17) o! the Nuclear Waste Policy Act of'1982~Now,Mr. Kouta~ifyeu tum~to the next.. ~(18) Q. (19) pagehere whichis 312~the first full paragrat~"-(2o) there slads with the onntenee, .'~The DI3E's ~ ,~.~ (2~) wasreadyfor submiftal to the C~:x,~gress (~) 1986,but litigation hasdelayedthe submfttal for . mere than a year.~ Do yeu know what that sentence (24) meaes? ¯¯ (?-=3 A. Yes, ldo.

35
lge 1~420t0 Page 1423 (202) 628-4888 Heritage Reporling Cool,oration ! l

Case 1:01-cv-00116-FMA
Tennessee Paget 424 O_ And what ~s that?_ 11) (2) A. Back ~n eady 1986, wl~en the Department wa s to .~ (3) prepared submit the prepoeaJ,!be stale of (4) Tennessesf~edasu~tinDLst~c~CesrtofT~nnessee . (5) basically requesEog.that the Department ~0e . (6) pr0h~bited from subrn~nglh~ p~epesatto Congress~ (7) A Ioeal district jedge in Tannes~ea issueda. (8) terni~rarj res~ainingorder and later an ni.unct~on.. (9) 3"hat was appealedby the Departme~twith ~: 110) theJus~ceDepar~eLandbaelcaJly, t~einjunc~Jon.. 111) wasoverturnedon apgeal, and essentJa~iy,.the.s~te.,, 112) (13} (~4) ¯ 115) ther~ appealedto the Supreme Coud. and ~he Supreme Cowtdanied cer~orad~. L~ieve that's the term and after that processhad gonethrough,.then the,

Document 189-3

Filed 10/13/2005
July 11,2005

Page 16 of 20
xv~x(4~/41)

Valley.Authority:v.

U.S No. 01-249C

G) uponthe rate of acceptance,basedupton this prapese(~. (5) ch~? ,. . . . ~ W~I, c~, for ~e 19) (11) re~,sow~twe~d~ t~3) 2~. 114) Q. (16) ~ ~x~g.,.

.:. .~.

..- ..... ~ w~ ~ere I ~ieve ~.~f~t u~ ~ ~ve

Deportmentwasf[e~tosubm~thep~ogeeal,whic~w~s ¯ (16) morethanayearlater. ¯ 117) . Q. Now, dght after that, itsays,=S~ccethe Gh, 118} plannedsubn~tt~Jd~te, the DOE's ilian ..

~ would

119) Radinactive WestaMap, agemen~ p,~.r~gram, CRWM,.hes ¯ pm .. (20) guessedand ,~de~n~ vark~s cha.~ng~. These.. chin',gas .. (2t) . ~rtge from the prog,mmmat~ changesand.proposals .- (22) outJinedintheJa~ual:y~1987~draitmLss~enamendment, . . 123~t~ fur~ber refinemen~ (24 database"Do yeu;$ee that; s r?. .... (25)

119}

Q.

~s ~ at

~e MRS?

~... ~..

(~), here, bas~ u~n ~is s~nt~ ~at waist r~,;~z.~-..: (24) progr~ge ~t (~) ~d DOE have any ~ to s~A

Page 1425 ¯ (r) (2) (3) (4) ¯ (5) . (5)

Page 1427 . repository? A. "(as repository, the MRSwoeld the only'meqhaofsm be the Deportment would ha.ve.utlder ES ~,essu~t~

. ... it wasauthorized~q.recelvespent fuel f~:as~ofear. ~.~!,. '- '~; ~ " .~

(12) :techn/ea! program sct~ilias and to provide (13) add~eaaloppor~onilyfo~eaesultatJea~0d -::i'. 114) cooperal~onwith affecled states and !~d~;~bes.'."; "~ = ¯ .. 115) Mr. Kouts, | wonder y~uqo~ldde~.~cdb~ t~e if for (15) Coul!, what~e w~.osen~erc.estha'~ ~'ve jest read 117) .into the record meant? 118} . A. Well, sinceatthepointintimewewer e .'. . .:; . 119) 'preparedto submit the prepesel, a variety p( ..... :.. (20) Jntemal chaoges had happened to the program. Weh~d 121) cometotheccndu~k~.thatv~eneeded:mo~et~eto-. . . ¯ (22) implementthe first repository, and weneeded more ¯ . (2o} t~metodoek)tofthesitecharactedzationwork (24) that weneededfor yucca Mour~lain or that ~e needed (25) for repositorias in ~rel bacause (£~n~t ~ this we

A~ Soit would,be the pdraerywasteaccep,la~c~., (9) 110) Q. And as the MRS being,!he pdman/paseptanc~ ~,~%:..:i, (~1) faculty begfnning 1998,did thffthave any- effec~ in 112) 113) on the acceptancerateS.at which DOE ~oul~ ~ccep~ 114) A. Theywere totally dependent on~what,we~;. (15) 11~). And whenyou-say~-~to~ly.dependent;',wbat,.~ Q. 0;3

:~ ¯ ,

,118) (191 That the only accept~nea capab~ity wasat . .., (2o) the MRS, the capab~ity to teea~ve so be the accept,'~nce rates ~t we v~uld ese for ~ ".-i~-~ ": system, assumingit was authorized. - ¯ - ,--; ,. ,:. Q. Now,Mr. Kouts, i~ yoqeauld turn to page.: . ~ 124) 315 of thL~ donument, this is the secondfull and (25 paragraph sta~ng
r

36
Heritage: Reporting.Corporation (202) 628-4.888 Page 1424 tq ~

~s~, ,,

Tennessee Valley.AuthQrity.v.,, Page1512 (1) that t just ~esd relates10the approva~ p~ocess 1or in amount?. (2) an inoreaseor change the.DCS (3) A. No, it is eel . . .~ ." ¯ .. . " -.. (4) Q. .Is tf~'e any provisk~in the F~Sc~aes~ : . ,, ~ (5) tha~aesouatsfqrth~DOE'sr:ighttoepproveor ..... the final request?. maybe And it'll (6) disapprove DCS ~ g3 I~pffwetumbacktolP, previous page. ltsays, e shall have~herighEtoac~u~ : .= . (8) "Purchaser (9) quant~es." ...~,,. .. (10) A. Right. (11) Q. YoLIsee?. ....;~, ~ ...,;: (13) Q. "Unt~ subrlliesi~q, the_rslaldEFwe~,:., . ..,.: the of -: -

¯

Case 1:01-cv-00116-FMA

Document 189-3

U.S No, 0!-249C ~ July 11., page 1514 (1~' e.g., emery, the contract's 20 (2) c01Engencies, (3) percent a~ustresnt provision, andcask.lnad~ng V~at of (4) consideratides." is yourunderstan~ng that sentefce? (5) (6) A. Well, it's essent~Jlysaying our . " (7) acceptaesecapacityisou[opera~ngcc,=pa~tyandpart of that cepaolty set aside is for -(8) unless ..: (9) co~tinganctes othe~ips~S.~.'l~, ~eFecan~, or an th.e. fight a~erthat~ gee~ to sayth~ ~'0. on (10) sestesce .(11) theextantthatt~a~cap:3ci~voutdbeneeded.th~n (13) purchasers anyg;yerl.yparW~id~,.b~. in reduced.~

Filed 10/13/2005

Page 17 of 20

. . (15) A. Yes. .!. .. ,.. . . ; in (16) Q. Sois thereanyinteq~ay, yourmind, _,,-.. ;, the . (17) between approvalof the r~l=delivery schedule 20 -. (18)- andthe plus or minus percerit provisisn? ..; . (19) A.. Iwouidhape~q;..t~at~e[ewQuldhasorne. , .i~ (zl.) (22) (23) (24) (25)

"ExpandedScopeof (15) samedocument,uede[thehea~rmg (16) the,,'~'~nqalCageci~yRePOdT~do, y~use~that, sir? ¯ (17) A. Yes. ,, second, pa.~agraph..~ere'page 2713 , (18) Qo The (19) 2713, ::

Thatfir~ifu!l :.. ,.. Q. Andwhesyousayyou'dhopetherew~uldb~ .,,: -. ....... (21) Q. Okey.~:har~kyou. some inteq~ay, whatdoesthat mean? , . . ,.-. (22) paragraph, says,"ln,additJor~, it DqEw~l. anhualacceptance~,aci~Y.Forlexarn~e ` ~ A. We~l, veryfact tha~.~omeone id:, : . .- - : the cemes ,~. :... (23) iss~esandsystemco~',siderati~nawhtc~.co~dafl~ct:..,..:'.:. er'~.J asks more for ~lloc~t~on~ the.D.epad~eal,.Woul ,;.-: "(24) d (~5) usedtoescommoda~.ec~ange~i~SNF~u~t~es, i. haveto~ookat.what~thesa~va~ab{e, tf~.~eesrt't:~-,..,' ..... =,,

' Page d513," ...... (1~ have more any a_v~ffable cap~.~ity, thenthere's~no:! ¯ ,. ~ . to withthis thanto edjust soresp,'~e.=. !, :. ~ .: : .=.. (2) olherw-ay deal Depa.rlment coald-reject t:eqUest change~:. !- ~.. : ,: " ;~: , the tq ~ ,, '. (5) (5) (7) (B) (9) (10) (11) (12) (13) (14) (15) (16) (18) (20) (21) (22) (23) (~4) (25)

P-age 1515 " (1) resut~ngfr~ th~.ceol~a,(~ 's.~ro~s i~~a2~ on (2} percentadjustmentto~pproveddeiivefycem~n~(me~t

h. I(wedo~'thavethecegeb~,~heP, my . .;, :... sense is.the DepartrP~nt have.to,eP~her .._ .,, ~:i': ;-~ would adjust someone else's ailccation (~r disapprove adder.s-. the Q. That's.fine.:Mr..Kouis,.ceed, yan.tum" ?.~ , :~,,, becknow~DX-50?.Andthiswesthe1997annnal,......-,. capacity report that weIpoked nadier: at . - ....... THECOURT: M~'.LoRe, inwhishbinderis-i.~ , -:.:, , ~isexh~it? .-.. MR. LORE: Excuseme, onerno,c~ont, Yoor,~.::_... .., Hes~r. * THE COURT: fou~liL I THE COURT: Yes. Q. Nmv, you co~l~ turn to HQ2716? ~ Ur~der : ,. ,,

(5) A. Thisisb~s(cellycortsistentwghwh~tl,. (s) saldeader Back~JuP,el~BT~th~$,wasa~:tesue. :..: ..: £~ . thatwas recegn.i~c~f, b~",¢~J.y, an~ ~t the i~onle~. cesles ~,30 in.: . ,.. (3} less,informing wqrld.that (3) for a 20 peroen~ adj~§th~ef~t,.thq~,~s golpg~,h~v% [10) tocomeoutofesmebedy~l~e's~i~e,a,%tw~'~'~. : (11) to have workthrough to that problem,. :,.,. ~. (12) Q. And,~lr,~outs~whatisyce¢:u~ta~*Lding, (13) withrespesttoth~D.O.E'sp0sitk}nonthis.~esu~. ' (14) oltertheissganceofthe1987ACR~.:. i (15) A. TheDepartq~ant's.pos~isesesi~eqt(16) It has not changed since thL~petal .~ ., . ' - :' (18) referred litfget~onbr.q,~ght Tennessee,... to I~y t~ , (20) yourecall that?. (21) A. Yes. ".. (22) Q. A~were there any ether inst,~J~s of ¯ (23) litigation between 1985 1998involving the OCRWM and (24) wastemanagement program, tha~ you reck?. othe~ (35) .~ Therewere, yes, there we~'enumetoes

~able 2.1, whichwe isoked at eadier, t~enaxtpage ~:.;! says- now,we'reon page 27~7.T~ese~oed santer~ce :;::. . in that l~rst paragraph esys~'~l~e aqceptanoe .:... . .-, ~ capacity ava~'l~bid a~loc~tJon ~he for t? purchasero w~]l equalthe system operating cepaFity,ur~ees . - .,,. ; part

37
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Case 1:01-cv-00116-FMA
Page1516 that been tiled by - ageinst oely not (1) tawsu~ts had but (2) the Departmant, aiso etherentitiss that are fu]l~ilmentof" (3) direat]y relatedto the Department's (5) (6) (7) (8) (9) (10) (11) (12) (15) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23)

Document 189-3
(1) (2) (3) (4) (5) "(5)

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Q. Anddo you have~n opinion as ththe effea! that thosetawsu~,s upon had DOE's abWty perform to the contract,perform standa~l ~1~ ¢~ont~act a ¯ in ¯ timely manner? A. Well, I the'the o~e that ~ffectedt~ ~" ':: Degedmant rnsst wasprc~ably the r~ ~f't~'~ EP~ standordinthe1987"tJr~afram~iche~enti~ll~ ";C:~::, -required an actor Congressin 1992~s~tathe' Environmentalprctec~A~l'~tol~ee"he~ -". standards Yeac~ for M~untaid, "~lch ;~e~~ ~ss~ue~_ in fln~ formun@ 2001l~:ne the the.DopaC~"neat ready to rnsv~ fo~ was site recommendatisns, we hnd a delay in the .... so standards which w~e to ~e goingto bet~ying' l~' liceasethe repeaito~, a poded about years. by of 14 Andlhatis~tiaHi~gationcansedthat . ".-~ andthe EPA'ssuhaeque~ delay inab~ity to iss~ a standard fore, I~f0t~theL:~]0~t~me be f~me,so tha~ certainly,after, tLk:l ourab~ity ~oe repeaito~: t~ a .~"

Page1518 BY MR. LORE: y~u Q. Mr. Kouts,I~'e just handed a b~er that is enE~t~ed, "Summa~" Energy Water of and Development Appropristions For the Nudea~ Waste and DefenseNuclearWaste FundFor F~" 1983t~ongh PY2006.'-Do ~eethat, sfr? you : ' Q. And youfarnfiiaf~t~l~h binder?. a~'e this

:(9) Q. And whatis it, sir? (10) of anti (11) A. It's a comp~tatisnthe request aiso (12) the actualdispo,~itinnby Congress thoseregeesis: on for both the Nucte~WasteFu~ (14) were involved the preparation you in in :(15) Q. And ¯ " " X15) this binder?. (17) A. I directed this binderbe of (15) a historyof the funding "(19) Q. Now, Mr; K~uts, thereis an (20) b~nder, " that, the veryfirst!page? (~!) (22) (23) .Q. Andwhat is tha~? .: " ..:,L..-. ¯ A. That's easenEally ~rollup ot.th~ fu.~ng .... requested theprogr~rriid each~f.th~ y~arstram, v. for

" ',-'.

: (1) ~ (2) ~ (3) ¯ (4) : (5)

Page1519 1983 2005 to and; actually, the appropriations ~t - ,: : .Congress disposedlof~ Q. Now, Mr. Kouts, l'dl~etod~re~tyour at~ention to Defendant's De~nstral~v~ ~9~and don't think~sin t~at binder,ltmay,t~ein-the ¯ ,': -

¯

(6i . bluebinde~ wegave I t,h!nk it's ~t th~ that ~ou: I- (7) end the bluel~inder,JtC~at ~a~;~ of we yo~Y~ A. I;dhave.to~-. - '. ¯ . MR.LORE:33~atwouldbe bir~er.nLImber - four, Your Honor. .. .~~

.

i that. -R-IE WITNESS: don't.thLqk haqe BY MR. LO RE: Q. Not in there. THECOURT: Kouts, I have something Mr. that looksl~e thaL MR.LOREThat's ~ I believE, Your Honor.Is that marked Detandant's as Demons~raEve 197 THEWITNESS: Okay. It's on the screen here~ THE COURT:, Counsel? MR.SMALL: YourHonor,just'for clar/b/of the record,I would to state that,the budget I~e informationthat the government apparengy is about to elicit te~y about, again. ! want~ make it

--

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Page 1516 to Page 1519 Heritage:Reporting Corporation

Case 1:01-cv-00116-FMA
[1) cibar that this is subject le our continLdng,

Tennessee :Valley AuthQrity v. U.S No~ ~2:49C , July 1 !~ 2005 0! ~ Page 1520 Page 1522
(1) (2) (3) (4)

Document 189-3

Filed 10/13/2005

Page 19 of 20

(~) objection, it comes roaybe pa~t (be that ib as of
(3) story, but it doesnot come as relevant to an in (4) atlirma~ve def~'~sa whic;? is ant ib i~ay. "i'HE COURT: exactly, that's why I asked No, (5) (5) the question of Mr. Lo Re ~ier, whether_the mater.s he was about t~- pm~,,ide,related:~ the~ ..... tes~ny that Mr. Ksots had just given, you;~3~w, for the resord. Andthe objest~cois:noted. : (10) MR. LORE: "l'hankyou.YourH~.~r; :~. ~ BYMR. LORE: ;; . . . .:..;.,,. ~ Q. Mr. Kcots'what is this.chart? ,-...,: ..... A. It's a graphical.represantat~oFqf.the same isibcrnatiea, budgetinformatiea requests andso |el(h, that are provided the binderin frcot of .. .in me.

althou~ 400 mJ'ition della~" wasappropriated, 85 miitibn of that washe~dby Congress,and the Department not to expend unfit we received was it

..

intedmStorage legislatlerl. ~:. neverdid, so that, in that spesific (5) We ; (6) year, wehad a meierreduc~m force (!t staff and i~ C/) conbactorsupport, duff ~0:~e subst~nt~~E=dnotisn. (8) in that year..., ..... ~, ..... ¯ (9) Q. Now Mr.Kouts~codidyouturato (11) (12) (13} ~14)

. . ;

.

(12) ,.. (13) (14) (ts) (lS) (17) Q. Now.what doesthis chart depist with , :... (16) raspest to the request vereasthe amouots.that~vere (19) as.h.~aity apprepriatedfor the Waste Menagement .

;

Demonstret~eExh~it2Q arid,thisis.acha[t .... entitled, "Nuelea.~,Weste andD..efense~. ~u~ear E~n~ Waste Fund, Requested Fu...r~s, ~us Appropffated F~.

.

1983to 2005.° What doesthis chart depk~t, air? A. Well, this is essont~elly t~e easechart. (15) ~,.. (16) only expaeded the entire histo~,' of the program..., to in (17) Theother oneslepped the'98 tfrne f~J'ne, and, yo ~u~ (18) knew,the samepattern has continued, especially, as _ . :,.. (19} I mentianed,in the 2005time frame wh~rewe. had i20) " requested 880 m~libn ~lars.and received.577 :.....:. ~, . ~.:

(22) (23) {24} (25)

exceptfor the.first |myyearso~opera(lee, .the_. of existenceof the office beginning in,abe, u( ~98~.~d~ continuingalrnost throughout unt~ :1998~ that the Department r~ceived less-than the requests that

(22 . That wasone of the big factors as:to .why (23) we aiso sbsp~dedthe~,DCS ~roco.ss b~ca~se it.was just (24) very apparent at that, p~int that the amountof .... (25) funding that we Weregoing to need in terms~f ......

,, - ~ ...

Page t 523 (1} developing the reposito~/wes not go/rig to be thece. (2) and 2010wasno 1 .of~ger a viabte Sched~te d~ (3), MR. LO RE:.. Your~oqo~ ~L~is t~r~ the ~,.: (4) governmentwould movefor the adm-~ssibnof . (5) Defendant'sDemonst]'ative EyJ~ibit 19 and,Delevant's (6) Demonstrative Exhibit ~in~.evidence @)~harts pursuant to Federal Rule of'E;/~de~ce. THECOURT:Mr.Sr~ell?=.... (6)(9) ',10) : (11) ¯ (12) ' (13) (1~ MR. SMALL:Subject to our continuibg objestJea, Your Honor, I suppesel have as they do sumrc~rtze witness' testi[~any regaF:tthg the project shortfalls, so based.of~t~e Co~d's ruling, I wou{d I haveno objection to the extent say they're beingoffered tq.tell ~hestory of happeningin the program. On the other hand, wedo object to the breadP_~ ad~issico Ol-tf'~se documents.THE COURT: Now, Mr. Lo Re, let me just eladfy for the record, you're saying Defendant's Demonstratives19 PJ]d 20 provide a summary the of inlermatinn that's in thff vqlume, rr~h volume the you~ejust provided.,is that correc~ MR, EORE:Yes, ibat's cones Your.,. Honor. THE COURT: And if ~eCouFL as ._ Plaib~fs. wereto parse through eachel the

39
Heritage Reporting Corporation (202) 628-4888 Page 15~0 to Page 1523

Case 1:01-cv-00116-FMA

Document 189-3

Filed 10/13/2005

Page 20 of 20

CERTIFICATE OF FILING I herebycertify that on this 13th day of October2005, a copy of foregoing "DEFENDANT'S RESPONSETO THE COI~T'S OCTOBER 2005 ORDER"was filed 5, electronically. I understand that notice of this filing will be sent to all parties by operationof the Court's electronic filing system. Parties mayaccess this filing through the Court's system.

s/HaroldD. Lester. Jr.