Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

Document 179-4

Filed 06/17/2005

Page 1 of 8

Y.ankee Atomic Electric

v U.S Nos.: 98-126C, 98-154C, 98-474C August 2, 2004

Heritage

Reporting

Corporation

Page 3378 to Page 3660

CONDENSEDTRANSCRIPTANDCONCORDANCE PREPARED BY: HERITAGE REPORTINGCORPORATION 1220 Street, N.W. ISuite 600 Washington, DC 20005 Phone: 202-628*4888 FAX: 202-371-0935

Case 1:01-cv-00116-FMA

Document 179-4
98-126C, (1) (2) (3l H) (s) (6) (7} (6) (9) (lO) (11) (12) (13) (14( (16) (16} (17} (18) (19) (20) {01) (22) (23} (24} (25) 98-154C,

Filed 06/17/2005

Page 2 of 8

Yankee Atomic Electric v U,S Noa.: Page 3606 (t) the defense appropdafion, you're goingto have and (0) come witn the ether 749miIl[on. Andright now up my Is at (3) underslanding that there are discussions very the and (4) senior levels wRhtn Oflice of Managemenl and in this. (51 Budget Congress ord-r Io t~ to address (6) Bu~the simpleanswer your question,and Io to (7) I didn't mean goon, is wedonot havedirect access tha~ to fund, has be appropriated It to by (S( (9( Congress. (10) Andthe industry over the years hasmade a6empls try to gel the waslefund usedfor Io (11! severaJ purdoses, that legisla (ion upuntil And (12} ils odgtna~ passed. (I3) this point h~snol been (14) THECOURT: Okay. Anything fudher? (15} MS.SULLIVAN: Nothtng further, Your Honor. (16} Thankyou. Okay, You're excused. And (17) THECOURT: for (18} thank youvery much your fesfimony. (19} MR.MILLER: Your Honor, our next witness (;~o] will be Mr, RobertMorgan, (211 THE COURT: Okay. (22] ~ereupon, (23) RQBERT L MORGAN (24) WaS called as a witness,and,havingfirst been duly (25} swam, examined testified as foltnws: was and

98-4"74C August 2, 2004 XMAX(~SS) Page 3608 queagons about your educalional background your and workexperience. So askyou rll first, sir, if yougraduated fromthe Unged States Mililary Academy 19527 th A Yes. Q And whal degree did you oblain whenyou graduated? A ll's a bachelor sciencein military of engineedng. Q Okay. Andat that time, you were commissioned a second as lieutenant in the United Stales Army? A Yes, In the Uniled States ArmyCorpsof Engineers. QOkay. if youwill, please,sir, il you And could just summarize the Court whatyour for subsequent assignments the Army th were. A After gradua6on,therewas aninterim assignment o(about2-1/2 months Fort Lewis, in Washington mywayto Korea.I servedwith the 25th on tnfanl~ydivision In Korea.Aher warended, the I transferredto Japan. From Japan, wentto Fort I Bragg with the 62nd airbornedivision, Andafter 2 yearsthere, the Army selecled me(o go Io MIT.I spent2 years there andreceived

(1) (s) (3} (4) (5) (el (7) (el (9} (1o) (11) (12) (13) (14) (16) (16) (17) (18) (19( (2o) (21) (22.) (23} (24} (as)

Page 3607 DIRECTEXAMINATION BY MR, MILLER: Q Gooda~temoon,Mr. Morgan.Would you s~ate yourfull name the record,please, for air. A Robert L Morgan. Q Andyou are a former director ol what slatted out to be Ihe Nuclear Waste Policy Acl project el(ice, andwhatdudng your tenure became Olfice the of Civilian Radioactive Wasle Management; ~ that correct? A Yes.Thafs correct. QAS we're talking here today, Mr. Morgan,you haveto thy lo remember let me to finish my quesllon before youanswer the court reporter doesnlhave so to lry to decidewhichoneof us shewanlsIo regec~ in the record.Doyouthink youcandothat, sir? A Yes, QAll right. Thankyou. THE COURT: Youcanask him questions, the. MR. MILLER: I begyour pardon,YourHonor. THE COURT; Goahead.Off-the-record commenls here, BY MR. MILLER: Q Mr. Morgan,[ would IRe belore we begin your substantiveteslimony ask youjust a few Io

(1) (2) (31 (4) (5| (e) (7) (8) (9) (lo) (11) 12) (13) (14) (15)

Page 3609 master science civil engineering a masterof of th and sciencein nuclear engtheedng. Subsequent that, I wentto IdahoFalls, to Idaho,assigned the U.S. - Io the AtomicEnergy to Commission. FollowingIhat' I wentIo an advanced courseat Fort Belvoir. Then Indonesia a to as specialassitnan~ the ambassador civic action. Io for After my return fromthere, I resigned my commission the miillary andjoined lhe Atomic born Energy Commission 1985.thlfially assigned a in for year in Savannah River. I transferredfo Southern California for reactor development. Spen~ years 7 there. I wasselectedas the deputymanager at Savannah River. I spent 7 years as deputymanager and then 8 years as manager before I relired hamDOE at

(17) Q Okay, sit. And you talked hamDOE what in (18) year? (19} A 1968. (20) Q Okay,sir. Your assignment the - to to (21} IdahoFalls - andI believe mentioned you you that (22) wereworkingwith the AtomicEnergyCommission Ihal at

(25}

Q And what was- what dld thalassignment

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Case 1:01-cv-00116-FMA

Document 179-4
98-126C,

Filed 06/17/2005
98-15,$C,

Page 3 of 8

it) is) (3} (4} (5} (ffi (7) (ffi (9} (10} (1t) {12} (13} (14) (15) (16} A Correctly. (17} O Okay.Faceto face? (18) A Yes. (19l O In discussions youin your office? with (2o} A Well,hesaid thai, yes, i~ should includea (~-tl rate, andI said no. {22.) Q Andwhydid you tell him no? (23) A Because that wascont~a~1o what wasin the process.Thatwas- severalof the (24) rule-making (25) comments u6fifies had requested lrom that. Andin

Yankee Atomic Electric v U.S Nos.: Page 3626 normalwayat doing business. Q0o yourecafi ~hal it Iranslatedinto any specific requirements youare aware that of? A No. No, sir. O All dght, sir. Mr. Morgan, yourecall do discussing Mr.Mills theu~iaiges' with belief that the conlracl- I'm sorry, I already asked that quP_s ffon. I befiev~you testified that Mr, MiIIs discussed youhis befiel that the ul~ifi~ with I'm sonT, u61i~ies' the befiel tha~the shoutd contathanacceptance rate; ]s that correct? A That's myunderstanding,correct. Q Anddo you re,;all howhe conveyed that Idea

98-474C August 2, 2004 Page 3628 {1) wereforrnu{ated,did youhaveaptan,a speclfic plan (2) to beabletadothat? (3} A No. Q All dghl, sir. Mr. Morgan, Mnls Mr. (4) his (53 tesfified earfierin this tdal that ager leaders, you (ffi discussionwi~ you andother program (7} agreed~at lhe acceptance ~ate under~e ~ntract (s) wouldbe su~clentto cover ~e rate of ~e (g) generafion spentnuclearfuel at the fimeptus s~me of I0 {10} amount workoff the backlog.Did youagreeto (11) that? (1~} A No. (13} O Did you makeany representations ta (14) Mr. Milta or anyo~errepresentative ~eufililies ~f a (15) concerning speci~c(ls) A No. (17) Q (18) A No. (~9) Q Didyouevertell Mr. Mills or anyone else (~) ~abeventhough~e contract itself wouldnot {21) contatha specific acceptance rata, none~eless, you wou(d be {~} agre~that the ~te ~e u~fifies wanted wouldbegin Io use? (~3) role ~al DOE (24) A Nm (~) MR. SHAPIRO; Objection. Leading.

Page 3627 (1) Ihe process resoluSon prior Io publishing of and (2} final rule-making, was that denied. Q Afi ffghl, sir. Doyoufecal[ whyit was (3) (4} that that wasdenied?

(1) (2} (at (4) (5] (6} (7) is) (9} (lo) (11) (12) (13) (14) (15) (16) (17) (16) (lg) (20)

Page 3629 THE COURT: Well, I take iI that you are asking about specific - I'1} overrule objecfion. the Theanswer stand.I think it wasa no. can BY MR. MILLER: Q Mr. Morgan,whenyou weredireclor of the grogram, youever make representations did any Io ul~ity rel~resenlafives privatethat were In dllferent than the public positionsthat youlook onthe program? A No. Q Andconversely, did you make any public announcements respect ta the progrsm then in with and private give different assurances? A No. QMr. M[l[stestified eadierin this trial, Mr.Morgan, that youandother DOE officials discouragedwdHen communications with him aboutthe variousaspectsof the program that youdiscussed with him. DO - did youdo thai? you A That's simply not true.

(~) yourstaff did that? (23) A No. (24| QAll right. After publicationol the draft (25) contractin the FederalRegistar,did EElgive you

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Case 1:01-cv-00116-FMA
ss~, (1) {2) (3} (4) (8) (8) (7) (8) (9) (10) (11) (12) (13) (14) (15) (18) (17) (18) (1e) (20) (21) (1~) (83) (84) (25)

Document 179-4

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XMAX(8~)

YankeeAtomicEtectricvU.S Nos.:98-126C, 98-154C, 98-474C August2,2004 Page3636 Page 3634 (1) missionplan. whereas clause Ihatwas requested? Q All dght, sir. Now,did youever agree A No. (3) wgh Mills that the 1-m~t was Mr. fee beingpaid Q Andwhy? For whal reason d{d you take (4} the ulililies In returnfor a 3,000k£PJ acceptance thai - did younot ~ndude g youwill? il, (5) rate? A Because enlire program the had not been defined. We net know did whatthe acceptance rate (6) A No. No. QAll dght, sir. In the conlex~ the of 17) would And tell that that should included be. we b~ in el (8) contract, doyourecall the concept oldest luel the mission plan. QA~Iright, sir. We'll lafk aboutthe (9) first or OFF? mission a little bit later. Butdid you- even plan (10) A Yes. (11} Q Andwhatwas the(concept? though didn't put an acceplance in the linal you rate was conlract, did give anydilferent you assurances to (12) A T~econcept to take the oldest fuel anyon-=about someunwd~en agreement acceptance on (13) firstQ Ag dghl, sir. ratesin the conlracl? (14) A - fromthe ulililies. In other words, A No+ (15} Q In (hal regard, Mr. Morgan, yourecall do (16) first out of the reactorwould the pdodty be of to Mr. M~IIS asse~ng youthat the 1-mill fee be to (17) acceplance the repository. QAll dghL yourecall, sir, whyyou Do paid - thai wasbeingpaid underthe conlrects in was (18) to re(ore lot a specific rate of performance DOE's on {19) indicatedIhat thereneeded bea priodtyof part? (20} acceplance? A I don't know that I cansay Ihal waswhat (21) A Well, because everybodywouldIAe to get And was specifically said, but Ihat was cedainlypart of (82.) ddof their fuel as quiskiy as pess~le. wefelt (23) thai weshould takethe oldestfuel flint. A~d of the - whatI understand message he was the thai (24} course Ihat would the tuel thai hadthe g~eatest be tranamilting. so haveless heal toad onthe Q Okay.Anddid you ever agreewith Mr. Mills (25) decay iI would

Page 3635 (1) thai the 1 -mill tee wasbeingpaidin relum some for

Page3637 (1) repository. (2) O All gghl, sir. Did youbelieveat the lime

(t 8) (18}

O Q

Why thai? is Why wasit premature?

(24)

O

NI righL

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Case 1:01-cv-00116-FMA
BSA YankeeAtomicEtectricvU.S Page3654 AndI didn't have agreemsnl Mr, Miffs, any with QAll righL sir. I believeyousaid thai you recalledMr. Mills discussing youthe ratesthat with

Document 179-4
Nos.:98-126C, 98-154C,

Filed 06/17/2005
98-474C

Page 5 of 8
XMAX(70nO)

August2,2004 Page3656 (I)reposilory receipl deslgn rates? youbegun Had to (21 lhal thetime oonlracl formed? at the was A No. (3) (4) QDo yourecall Mr. Mglsrep~esenling you to {5) or argaing youthat the acceptance underthe to rate (6) contract shouldbethe repositorydesignreceipt rate? (7) A T~erewasn't a receipt role under- th the (stconlracL Q Yes, (9] sir. (~0) A Sothe queslionagain? asserled (11) Q Yes.Doyourecall that Mr, M=31s be (12} lo youthat that's the role that should In the (13) contract,the reposilorydesign receipt role? (14} A I don't - I'm sure that hecould have.I (15) don't know. Q Okay,sir. Hadhe doneso at the time, (16) lo (17) wouldyouhaveroadsa representagon himthat the

(1)

Page 3655 Q Okay.By the way, alter you took over

(3) anything~o do with decision m~king the program? on

(1) (2) (3) (4| (st (st (7} ts} (9) {lo} (11) {12) (13) (14} (~S) (16) (18} (19) (20) (21) (22| (23) (24) (~)

Page 3657 know, the contract, anddenythg receipt ~ateand in a turn aroundand make - an agreemenl a otherwise. Thal'sludicrous. QAll right, sir. Doyourecall if the conlract did addressthe manner whichDOE in would accept spenl~uclear fuel lromthe ulillti~s? A Yes. In the appendices, Q All right. Anddoyou recal[ whatIhe coniractsaid about [n general? it A That there wouldbe a processthat wouldbe an acceptance rate that wouldbe negogated with DOE at a later pothti~ gme. Q All dghl, sir. At the time Ihe contract wasfinalized, did youknow whatthat rate wouldbe? A No. MR. MILLER: All dght,sir. Just one THE COURT: Take the time youneed. all MR. MILLER: All right. Your Honor, to due lhe laleness the hour,~s it all right that we of breakfor lonight?It may ( have few addkional be a quesllons. would I sort of like lo, especially considering hour, to consider the lhat. THECOURT: Sure. We can dothat. MR. MILLER: All righL Thanks, Your Honor.

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Case 1:01-cv-00116-FMA
eeA Yankee Atomic Electric Page 3665

Document 179-4
v. U.S Noe.: 98-1260,

Filed 06/17/2005

Page 6 of 8

98-474C August 3, 2004 Page 36B7 {1) A. Triers correct. (2) Q. Andafter your approximatelyon~-year (3) tenure as acting director of the NuclearWaate (4) Project O;t]ce, youdldnl follow whafhappened wilh (5) the nuclearwaste program Brier that time, old you? (6) A. No, I wasbusywith other activities. Q. And you didn~ subsequentlyconsugwi~h ~ spent (B) anyentity onissues that involvedcommercial (9) nuclearfuel? (10) A. I think that when Rusche eppolnled, Mr. was (tl) wesharedan apartment Washington, in D.C.and Io say (12) that wanevertalked aboutthe NuclearWasle Potlcy (13) Act wouldbe IncorrecL

98-154C,

Page 3eBB

Page 3eBB (1) Q. Bul whBe werethere, old the project you the scheduling prccece wouldwork? (2) oil~ce deline how (4) O. I wantto ask you afmvquectionsa~ut

(5) (7} (B) (g)

Q. Atl dghf, sir. MR.MILLER: further questions at this No time, YourHonor. THECOURT; Okay. Cross-examine(ion. MR. MILLER:Mr. Morgan, do you need some

(9} (~0)

Q. A.

Right. We accep{ed fuel cluing ~B~mB no thai

THEWITNESS: would appreolaIe iL I (1I) (12) MR. MILLER: All dghL {13} CROSS-EXAMINATION {14) BY MR. SHAPIRO: {lb3 Q. Goodmorning, Mr. Morgan.

those Issue?

pr~essto developthe project? A. NO,~at hadsta~edbefore I Q. Andin fec~ youd~n't know why,In lack

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Case 1:01-cv-00116-FMA
Bs~

Document 179-4

Filed 06/17/2005
98-154C, 98-474C

Page 7 of 8
×M~tgm)

YankeeAtomieElectricv. U.S Nos.:98-126C, Page3893 (1} proceeding, there mighthave been Iitge bil of a {21 (~) confusion that point. on (3) (3) Butultimately,we'retalking about the (4) same relevancy.Thank for your time. you (4) (5) (53 THEWITNESS: You're welcome. (6) (6] THE COURT: Anyredirect? ~7) (7] MR, MILLER; Shod redirect, YourHonor. (5} ~5} THECOURT: Onamoreround here. (g) REDIRECT EXAMINATION (9} (lO} (lo) BY MR. MILLER: {1~) (11) Q. Youthought you weregoing to get away, (12} (12) didn't you, Mr. Morgan? I (13) (13) THECOURT: don't blameyou, you want to to I (14) (14} gohack Oregon, thlnk. (15) (15} THEWITNESS: now live in Colorado. t (~5} (16} THE COURT: Oh, Colorado. (17) (11) BY MR. MILLER: (18} Q. Mr. Morgan, DOE did elect not to put a rata

August3,2004 Page 3895

Q. W~ possible for DOE pr~ict, in it to 1983,whatrates they would able to usein be accepting |uel in 19687 A. No, Q. Based your understanding the Act, the on ol NWPA, g require that DOE did accept spast nuclear luel andhigh-levelwaste stmlingin '98 at a rate g-,at would preclede utilgies fromadding further starage facilities on-site? A. No, that wasnot por~of the Act. O. Was that a program goal that you hadat the ~Jme weredlrectaryou A. That wasa program goal that weidentified in the mission plan, Q, And Is that a goal that DOE declined put in the contract? to

(1} (2} (3} H] (5} (5} (7} (8) (5) (10}

Page 3694 A. I felt that It, because the of unceria[nges the program, of whichI've discussed eadiet, the NRC (icensingprocess characterization, the R&D otheracliviges, that [ thought was and il not prudent put an acceptance in the to rate contract. Q. And what about your knowledge the of lechnicalor technological sciengficcapabilities or that youweregoingto haveIo haveat the repository, did youknow whatthose wereat that

(1) (5} t3} (4) (5) (~) ~')

Page 3598 Q. All right, sir. in your mind,Mr. Morgan, what's the difference between program a goat anda contractual requirement? A. Theyweretotally separate. Thecontract wasthe agreement between andthe tail~ties, and DOE the program goa~ our best efforts a! meeting was the requirem-.nts the Act, Theywere of

(g) MR,MILLER: have no furlhar questions, I (to) Your Honor.Thankyou, Mr. Morgan. (~) THE COURT: Anything ludhe~. (1~) MR,SHAPIRO: Nothing (ur~her, Your Honor. THECOURT: dghL You're excused, and All (13| (~4] thank you very much your testimony. for Thank you, sir. {15} THEWITNESS: (16) MR. MILLER:Your Honor, the govemmect Rusche. (17} calls, as gs next withess,Mr. Benard (15} Wrlereupon(19} BENARDC. RUSCHE (~0l a witness,called for examination, havingbeen duly sworn, and 12~l wasexamined tastiiied as (otlows: (22} THECOURT: Just take a seat. (23) DIRECT EXAMINATION (a,~) BY MR. MILLER: (25) Q. Are you all set, Mr, Rusche?

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Page 8 of 8

CERTIFICATE OF FILING I certify that, on tiffs 17th day of June, 2005, a copy of the foregoing "DEFENDANT'S SUPPLEMENTAL BRIEF IN RESPONSETO THE COURT'S MAY4, 2005 ORDER" was filed electronically. I understandthat notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties mayaccess this filing through the Court's system.

s/Harold D. Lester. Jr.