Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:01-cv-00115-SGB

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I~MOR^NnLIM YANKEE ATOMIC- FRAMINQHAM

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MEMORANDUM YANKEE ATOMIC - FRAMINGHAM
To R. M, Grube/R. A, Rich M. Buchheit 27, 1983 UNWMG DOE CONTRACT ~]ste October 19, 1983

FromJ.

Group #
W,O. # NMG 83-647

SEPTEMBER Subject

TASK FORCE N~ETING

ATTACHMENTS Potential Issues to be Addressed in a Rulemaking Proceeding on the DOE Disposal Contracts 2. Attendance List

The meeting convened with a brief discussion on whether or not to go forward with a rulemaking proceeding. At the September 7, 1983 Steering Committee meeting, it was my understanding that the groupVs opinion was unanimous to go ahead subject to EEI Executive Advisory Committee approval. UNWMG attorneys estimated that it would take one to two months to prepare the petition to DOE, and that it would take three to four months more for the various committees within EEI to pass Judgment on the petition. The procedure for rulemaking was briefly described. Under the Administrative Procedures Act, virtually anyone can file for a rulemaking. A party must merely identify itself and what the issues are. DOE in turn can deny the petition. If DOE denies the petition, the reasons for such denial must be published in the Federal Register. If DOE goes ahead with a rulemaking proceeding, the proceeding must be published for comment in the Federal Register. DOE will probably allow a comment period of 30 to 60 days. DOE will make its decision after reviewing the comments. No public hearings are required. However, DOE could choose to have h@ari~gs as a means of encouraging public participation. Possible adverse problems were discussed. A rulemaklng procedure would open the contrast to i~tervenors, and DOE could come up with a worse contract. Rowever~ an intervenor could challenge the contract at almost any time ~o we are not necessarily operu[ng up the contract for challenge. Prior to a rulemaklng proceeding, we wo~d discuss our petition with DOE. It was noted that DOE could publish a notice in the Federal Register requesting further comments before opening the contract to a rulemaking. It was also noted that DOE can select the issues it desires to address and ignore the others. Concerning timing, it could be argued that because we have had little experience with the present contract, we should wait until we see how things work. On the other hand, we may not get favorable treatment from the DOE if

DEFENDANT'S EXHIBIT

17'

092A:

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R. M. Grube/R. A. Rich October 19, 1983 Page 2

we delay on our petition for a rulemaking if, for example, a new administration takes office in 1984. A discussion of some of the issues addressed in Attachment 1 follows. i. Contract as a Regulation: In UNWMG's initial comments to DOE on the waste contract, we disagreed that the contract should he a regulation. We disagreed on the basis that this allows the intervenors to come in at any point in time and attempt to amend the contract, and that there is not enough flexibility in such a system. We cited the enrichment contracts as an example, stating they are not a regulation, that they have been workable, and can be amended without difficulty. It was noted that DOE itself has already been inconsistent in that a number of the Appendices to the contra~t were changed without prenotification in the Federal Register. ~eThere are no signs, however, that DOE desires to accede to this change. DOE is likely to argue that if the contract is not a regulation, the public will not be able to part--pate in the contract in the future. ,

---------------~ - ----------

Lack of Milestones: DOE's only requirement in the present contract is to take fuel by January 31, 1998. There are no specific performance standards. DOE is required to publish a Mission Plan in April 1984, which is to be approved by Congress. It was generally agreed that some statement concerning the Mission Plan should be incorporated into the contract with attendant dates. Also, the contract should be changed to incorporate receiving rates into the 1998 schedule. 3. The Gross Versus Net Issue: Although Wisconsin Electric Power Company: et al., have sued the DOE over this issue, UNWMG counsel still felt that it would be useful to make this issue part of a rulemsking proceeding. The lawsuit and the rulemaking proceeding wou~d leverage each other. In other words, the DOE may choose to Proceed directly with the rulemaking rather than go to Court. If it appears that it will be a long time before a decision is made on a rUlemaklng, we could go ahead with a lawsuit. As a matter of interest, may have pressured DOE to select gross instead of net over concerns balancing the budget. Program Review Rights: In our previous comments on the waste contract, we requested that utilities be given the right to audit the DOE program. If we petition the DOE for a rulemaklng, it was suggested that we use the word review instead of audit. It was considered that it would be very difficult to perform an adequate audit and that the DOE may be more receptive to a review of their program rather than an audit.

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P. A. Clark J. T. Pearson A. R. Soucy

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9,1,

File

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NHC1EARWASTEPOLTCY ACT FACT SHEET

Attached is the subject information which you requested. In addition/ we have provided two pages of back-up data summarizing the Waste Policy Act and its financiBl implications to Yankee.

R. M. Grube Fuel Cycle Department Manager

R~Clsaj
Attachment cc: R. A. Rich E. E. Pilaf K. W. Ludwig

DEFENDANT'S EXHIBIT ~DK013697 102 YDK013697

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NUCLEAR WASTE POLICY ACT YANKEE MILESTONES

1983: Jan 7 -- President signed Waste Act June 30 -- Yankee signs DOE disposal contract July 31 -- Yankee makes first quarterly payment on new spent fuel

1985: Jan 1 -- DOE recorm~ends 3 candidate repository sites June 30 -- Yankee selects payment option for old spent fuel

1987: March 31 -- President selects first repository site

1989: Jan 1 -- NRC approves construction'at first site

1998: Jan 31 -- First repository operational

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NUCLEAR WASTE POLICY ACT OF 1982 o

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Passed by Congress on December 20, 1982; signed by the President on January 7, 1983. The Act sets a schedule for repository development in deep geologic formations. President decides on first site by March 31, 1987, Decision on second site is required by March 31, 1990. Final NRC decisions on construction of'the two repositories are required by January I, 1989 and January i, 1992, respectlvaly. DOE is required to submit a proposal for m~nitored retrievable" storage (MRS) to Congress by July 1985. "Interim Away-From-Reactor (AFR) storage of up to 1900 MTU spent fuel will be allowed at existing federal facilities, but only after all other alternatives have been exploited; a separate user's fee for AFK storage will be developed; after a permanent repository is operating, AFR storage must be phased out within three years. A state or Indian tribe may veto the selection of a repository site, MRS, or AFR with greater than 300 MT capacity; a majority vote of both House and Senate is needed to overturn the veto. Both high level waste (HLW) and spent fuel will be accepted for disposal in the repository. HLW is defined as the highly radioactive material resulting from reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste.

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A 1 mill per killowatt hour (M/kwh) fee is established for future spent fuel and an equivalent one-time per kg heavy metal (HM) fee for existing spent fuel will be developed; the fee will cover the repository, MRS, and transportation. The Federal government will take title to spent fuel at the reactor site and will transport it to either an AFR or repository. Each owner or genera6or of spent nuclear fuel or high level waste is required to sign a contract with the U.S. Government by the later of June 30, 1983, or date on which reactor commences operation.

SUMMARY OF FINANCIAL IM2LICATIONS A i M/kwh fee will be assessed by the Secretary of Energy (Secretary) for electricity generated beginning April 7, 1983.
e

For existing spent fuel and 1983, a one-time fee per Kg is equivalent to an average originally generated by the

fuel in the reactor core prior to April 7, HM in'spent fuel has been established which charge of I M/kwh for the electricity' spent fuel.

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Procedures for the Collection and payment of the fees have been set forth in the Standard Contract Published by DOE on April 18, 1983. All fees shall be paid to the U.S. Treasury and deposited in the Nuclear Waste Fund. Once spent fuel or HLW is delivered to the Government, the utility will -have no fi~anolal obligation beyond payment of the fee. The Secretary will review the i M/kwh fee annually to decide whether full cost recovery will be achieved or whether excess fends are being collected. If the Secretary determines there is a need for an adjustment, he shall transmit his proposal for adjustment to Congress, which has 90 working days to reject the proposal. In return for payment of the above fees, the Secretary, heginning ns later than January 31, 1998, will dispose of the high level radioactive waste or spent fuel. FINANCIAL IMPACT ON YANKEE
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Quarterly payments for i M/kwh due by the end of month following each calendar quarter. Approximate annual payment for the 1 M/kwh fee based on Yankee's average annual gross electrical generation is ~1,200,000. The approximate fee for existing spent fuel and for fuel in-core prior to April 7, 1983 is ~12,600,000. Spent fuel 264 assy x 235 kg/assy x ~184 - Ii,400,000 1 asay x 235 kg/assy x ~80 - 19,0Q0 -In-co~e at i M/kwh estimate = 1,20%000

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Three (3) payment options for existing spent fuel and in-core fuel prior to April 7, 1983. Yankee must select its option by June 30, 1985. Lump sum wlth no interest if paid on or before June 30, 1985. Quarterly payments for l0 years ~th interest at T-bill rate with final payment to be made prior to first shipment to repository. Lump sum payment with interest at.T-bill rate at any time-prior to first shipment to repository.

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YankeeAtomic v. U.S. No.: 98-126C July 14, 2004 Page574 to Page793

CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED BY: HERITAGE REPORTINGCORPORATION 1220 Street, N.W. L Suite 600 Washington, DC 20005 Phone: 202-628-4888

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Case 1:01-cv-00115-SGB Paga574

Yankee Atomic v.U.S.

Document 164-5

No.: 98-126C July 14, 2004
II ARPEAItARCES CONTINUED:

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(I) THEUNITED STATES COURT FEDERAL OF CLAIMS (2) (3) YARREE ATOMIC ELECTRIC 9B-126C 9B-154C 98-474C Consolidated

3) ON BEHALF t~AINE OF YAt~KEE ATOMIC POWER COMPANY: JOSEPH FAY.ESQ D, 7) 321 OldFerry Road (207) 882-5603 (ii) BEHALF THEDEFENDANT: ON OF HAROLD LESTER. JR.,ESQ.

National Courts Building 717Madison Place. R.W. Washington. D.C. Wednesday, 14. 2004 July VOLUME 3 Theparties met. pursuant thenotice to of theJudge. I0:01 at

MARIAR SULLIVAth E. ESQ. (16) (17) (16) R. ALAN MILLER. ESQ. KEVIH CRAWFORD. B. ESQ. RUSSELL SHULTIS. ESQ. 1100 Street. L Washington. 20530 D.C. (202) 305-7562 Index appears theendof transcript at

Page 575 (I) APPEARANCES: ON BEHALF YANKEE OF ATOMIC ELECTRIC COMPANY. CONNECTICUT YNIKEE ATOMIC PO~RCOMPARY ~tAINE and YANKEE ATOHIC POWER COMPANY: JERRY STOUCN. ESQ. ROBERT SHAPIRO, ESO. PETER SKALABAR, ESQ. J. JR.. MICHAEL MINER. R. ESQ. VIVEK HATTI. H. ESQ. Spriggs & Mollingsworth 1350 Street. I N.W. Washington, 20005 D.C. (202) 898-5B00 ON BEHALF YANKEE OF ATOMIC ELECTRIC COHPANY and CONNECTICUT YARKEE ATOMIC POWER COMPANY GERALD GARFIELD. ESQ. General Counsel Day. Berry Hm~ard, & LLP CityPlace I Hartford, Connecticut 06103 (B60) 275-0180

Page 577 (i) PROCEEDINGS (2) MR. SHAPIRO: Your Honor, we're ready b (3) proceed with Dr. Bar,left. (4) (5) THE COURT: Good. MR. SHAPIRO: plaintiffs The call John

(6) Bartlett. (7) THE COURT: Okay. (8) Whereupon, (9) JOHN WESLEY BARTLETT (lO) wascalled as a witness, and, havingfirst beenduly sworn, wasexamined testified as follows: and (12) MR. SHAPIRO:Your Honor, once again, we we (13)have a notebookwith somedocuments would like to (14) provide the witness and to provide copies to youas (15)well, and to governmentcounsel (16) I knowwe havethe fan, Your Honor, which is (17) pleasant. But, obviously, if youhaveany trouble (18) hearing, let us know. THECOURT: I'm more worried about the (B0) reporter. (21) DIRECT EXAMINATION (22) BY MR. SHAPIRO: Q Would you state your namefor the fecord, (23) (24) ptaase. A My name is John Wesley BaSaLt. (25)

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youwoo]dnlbedisruptiogoperations? A Youwoold generally not operate that way for (2) optimal purposesat the rescter. Youwould campaign (3) (4} moreon an 18 monthor more schedule. (5) Q And you would want to pick up more than 1 (6) oask(7) A Yes. Q - wo~of fuel, wouldn't you? (8) A Yes. Yes, (9) Q Okay.I want to ~lk to you now, sir, a~ (~0) (11) what you had beendiscessiog or you had disoass~ on (12) d~rect examinationa~ut elim~natiog ~e nesd for (~3) addif~ooalaFreactorstarage. you were dir~tor of OCRWM, did not you (~4) When wouldbe (15) bo any oa[cutafion of what rate of aesep~nce (16) necessa~in order to prelude ~e n~ for additional (17) aFreactar storage, oo~ect? A I did got, go. (~8) Q And now es the Yankees' expe~ witness, you (~9} (20) havenot doneany calculation of whatrate of (2~) accep~noewould be n~esoa~ to preclude ~e ne~ for (~) additional at-reactor storage; is ~at co~t? A I have not, go. (~) Q Okay. You have not done any calculation of (24) (25) what rate of acceptancewould be n~essa~to prelude

(1) Q But in order to eat awayat that backlog, (2) DOE wouldreally just needto makesure that they (3) accept morethan 2,000 MTU year; is that correct? per (4) A An approprfata rate to maintain receipt of (5) constant- or current g6neration and eat awaythe per (6) backlog is 3,000 MTU year. I understand youfeel that way,sir. that (7) Q (3) A Yes. (9) Q But whatI actually wantto find out about wereto make sore that they acceptedjust (10) is, if DOE (11) morethan 2,000 MTU year, they wouldbe eating per at (12) away the backlog, wouldn't they? 13) A At a ver~minorrate. (14) Q But theywould? A Yes, (15) Q Soif they accepted, say, 2,1g0 MTU per (16) at (17) year, they wouldbe eating away the backlog? (18) (19) (20) (21) (22) (23) (24) (26) A At a ve~ minor rate, yes. Q Theywould be eating awayat the backlog ~t they accepted, say, 2,500MTU year;, is that right? par A Yes. Q I want to ask you, sir, about one of the documents that you discussedwith Mr. Shapiro. Soif I oculd haveyoulook backat your binder of exhibits that Mr. Shapirogaveyou. Doyou still havethat?

Page 711 (1) the needfor addittanal at-raactor storage and work (2) off the backlog,right? A I have not doneany direct calculation, but (3) (4) I wouldrefer youbackto the mission ptan which to (5} established a 3,000-ton per year rate of acceptance (6) avoid the buildup of must-move fuel. (7) Q And you're talking about the 1985mission (8) plan? (9) A Yes. (1o) Q You've told us today - and I'm going to back to that in a second.You'vetald us today (11) come ecceptance rate that yoo advocateis (12) that 3,000 MTU (13) designed,andI think this dovetails with whatyou're part of the becktogthat (141 saying, is designedto remove (15) exists becaoae continuing generationof spent foal of (16) A Yes. (17) Q Havef summarized that correctty? (18) A Yes. (tg) of Q Theaggregateamount fuel that's produced (20) by a~l reactors eachyear is actuatly 2,000 MTU per (21) year, (22) A That's right. f23) Q So that's what contributes to the backlog; (24) is that right? A That's dght, Prior years of operation. (25)

(1) (2) (3) (4} (5) (6} (7) (8) (9) (1o} (11 (12) (13) (14) (15)

Page 713 A ldon't havethat. MS. HERRMANN: Shapiro, do you still Mr.

have that? BY MS. HERRMANN: Q AndI'm going to ask you, sir, about tab 1. Are you with me? A Almost. Q Okay.Takeyour t~me. I'm sorry. A l'mstuck. Tab 1. Q Okay.Lookingat tab 1, whichis Plaint~s' Exhibit 175, the Civilian Radioactive Waste Management System Throughput Rate Analysis? A Yes. Q Doesthis document,s~r - does this - let meput it this way: Is this document system a (16) study(17) A Yes,~t is. Q - as you defined it? (16) (19) A Yes,itis. (20) Q Yes,~t is. Am correct that your f was (21) tastimony about this document that you raviawod a (22) draft of this document to the eodof your tanura pdor as director?. (23) (24) A No. Q You (25)

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Yankee AtomicElectric v.U.S Nos.: 98-126C, 98-154C, & 98-474CJuly 16, - 2004 TRANSCRIPT FILED Page1066 to Page1322

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Case 1:01-cv-00115-SGB Document 164-5 Yankee Atomic Electric v.U.S Nos.: 98-126C, 98-154C, & 98-474C July 16,Page 14 of 15 Filed 02/01/2005 2004 XMAX(2/2)
Page1072 (1) (2) (3) (4) (6)

Page 1070 (1) June1st, 2004letter you also identify NAC {2} International's assumption that actions taken to quota, w~l not give rise (3) complywith the subpoenas, (4) to an organizational conflict of interest, endquote. the (5) As you know £)eparimentof Justice is not (6) involvedin any future procurements relating to this (7) litigation in which NAC (ntamational mayhave an (8} interest end, as a result, has nobasis for evaluating exist in such (9) conflicts of interest that may (10) procurements. your (11) Accordingly, although we acknowledge (12) representationregardingconlticta of interest, we (13) haveno basis to take any position uponthat (14) representation. THECOURT: Thank you, Mr. Lester. (15) (16) Whereupon, (17) CHARLES W. PENNINGTON (18) having beenpreviously duly sworn, was examined and (19} testified further as follows: (2of VOIR DIRE EXAMINATION (21) BY MR. LESTER: (22) Q Mr. Pennington, I just have a couple of from your (23) quick questions for you. I understand (24} testimonyyesterdaythat youhavedealt a lot with dry (25,~ storage casksandcost estimating for these; is that

(10) (11) (12) (13) (14)

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(21) (23) (24)

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Case Atomic Electric v.U.S Document 98-154C, & 98-474C July 16, 2004 Filed 02/01/2005 Page XMAX(22~22) 15 of 15 Yankee1:01-cv-00115-SGB Nos.: 98-126C,164-5 Page 1150 Page 1152 (1) (2) (3) (4) (5) (3) (7) (8) (97 (~0)
(12) (14} (15) (~6) (15)

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(20) (21) (23) (24) (257

Page 1151 (1) (2) ...... _.. We understand (3) how fuel is discharged yearby eve~ much every (4} in States. it's somewhere And (5) reactor theUnited between metric 1500 tonsand 2,000 metric tons. (6) (8) (~o} (~) (t2) (~3) (~5) (17)

Page 1153 (1} (3) (4) (6) (7)

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(17) (19) (20) (2t7 (23) (24) (25)

(20) (22) (23) (24)

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