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

Case 1:00-cv-00697-JFM

Document 311-2

Filed 03/26/2007

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APPENDIX

Case 1:00-cv-00697-JFM

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INDEX TO THE APPENDIX Document Page

Excerpt of Deposition of Mr. Lake Barrett, May 10, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Excerpt of Deposition of Mr. Ronald Milner, May 3, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Excerpt of Trial Transcript in Tennessee Valley Authority v. United States, Mar. 29, 2005 . . . . 9

Case 1:00-cv-00697-JFM

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IN TH~."~JNITED S~S CO, R~ OF FEDERAL ,C.L~IMS
X

YANKE~ ATOMIC 4 5 6 7 8 9 i0 Ii 12 13 14 15 16 17 18
a

CONNECTICUT YAI~[EE ATOM~C POWER

POWER COMPANY';

FLORIDA POWER

POWER COMPANY; :DUKE POWE"'.I~,. ta,.} .

Divisio~ of DUKE E~JRGY coRP '";
INDIANA' MICHIGAN ~0~ER COIvI~NY";

SACRAMENTO MUNICIPAL UTIL~.,T.,.~,
X

(Caption continued on the n~xt pag~

19 20 21 22 Job No.: 11792-11 Pages 1104 to 1437, Volume 5 Reported by: Diane Gomez~ RPR

L.A.D. REPORTING COMPANY, INC.
1100 Connecticut Avenue, NW ¯ Suite 1150, Washington, D.C. 20036 ¯ 202.861.3410 Fax: 202.861.3425 ¯ 800.292.4789. Website: [adreporting.com ¯ E-mai[: [isa@[adreporting.com

NATIONWIDE

COURT

1

REPORTERS

AND

VTDEOGRAPH ERS

Case 1:00-cv-00697-JFM

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DEPOSITION OF LAKE H. BARRETT, VOLUME 5 CONDUCTED ON FRIDAY, MAY I0, 2002 1105

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DISTRICT; SOUTHERN NUCLEAR OPERATING COMPANY, et al.; COMMONWEALTH EDISONCOMPANY; BOSTON EDISON COMPANY; GPU

: : : :

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NUCLEAR, INCORPORATED; WISCONSIN : ELECTRIC POWER COMPANY; POWER AUTHORITY OF THE STATE OF NEW : :

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YORK; OMAHA PUBLIC POWER DISTRICT;NEBRASKA PUBLIC POWER DISTRICT; and TENNESSEE VALLEY AUTHORITY, Plaintiffs
V.

: : :
:

THE UNITED STATES, Defendant

: : X

L.A.D. (202) ~ 861-3410

REPORTING & DIGITAL VIDEOGRAPHY COMPANY (301) 762-8282 (410) 539-3664 (800) 292-4789
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DEPOSITION OF LAKE H. BARRETT, VOLUME 5 CONDUCTED ON FRIDAY, MAY i0, 2002 115.0 Laboratory? A Yes. What is Pacific Northwest Laboratory? It's a contractor in Richland, Washington. Were those contractors relied.on often by

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4

Q
A

5 6 7 8
9 i0 ii 12 13 14 today?

Q

the Department of Energy in connection with the development, design, and construction of the waste management system?

MS. HERRMANN: Objection. Vague.
A

We use them as advisors and analysts for

the waste management system. Q Do you continue to so use them through

A

NO.

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Through when did you use them? Through the late eighties. There's also another name at the top of the first page, H.D. Huber, H-u-b-e-r. individual? A
No.

Do you know that

Q

Did you ever rely on the work of Pacific

Northwest Laboratory? L.A.D.REPORTING & DIGITAL VIDEOGRAPHY COMPANY 86i-3410 (301) 762-8282 (410) 539-3664 (800) 292-4789
3

(202)

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DEPOSITION OF LAKE H. BARRETT, VOLUME 5 CONDUCTED ON FRIDAY, MAY i0, 2002 1151 1 2 3 4 5 6 7
A

MS. HERRMANN: Objection. I used it as input. For what purposes?

Vague.

For advice on systems analysis. Did you ever personally assign work out to be performed by Pacific Northwest Laboratory? I don't remember me personally, but my staff did.

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Q
A Q

Did you authorize your staff to assign work

out to Pacific Northwes~t Laboratory? Yes. I take it then you considered the work of

Pacific Northwest Laboratory to be competent? A Q Yes. I turn your attention to page Bates number

PA-221972. It's the second page of the document. Actually, returning to the first page, do you see the buck slip on the first page? It says, '91 HLRWM conference papers, volume two, "high priority." A Q A L.A.D. (202) ~861-3410 I see it. Is that your writing? No. REPORTING & DIGITAL VIDEOGRAPHY COMPANY (301) 762-8282 (410) 539-3664 (800) 292-4789
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Case 1:00-cv-00697-JFM
Ronald Milner

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Filed 03/26/2007

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McLean, VA .....

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IN THE UNITED STATES COURT OF FE[?~_RAL CLAI.M~S YANKEE ATOMIC ELECTRIC COMPANY, : (98-126C) : CONNECTICUT YANKEE ATOMIC POWER COMPANY : (98-154C) : MAINE YANKEE ATOMIC POWER COMPANY< .... ¯ : < ~ ~ ~..0 FLORIDA POWER & LIGHT COMPANY NORTHERN STATES POWER COMPANY " (98-484C) DUKE POWER, A Division of DUKE ¯ ENERGY CORP. (98-485C) INDIANA MICHIGAN POWER COMPANY (98-486C) SACRAMENTO MUNICIPAL UTILITY DISTRICT

(98-~88c)
SOUTHERN NUCLEAR OPERATING COMPANY, et al., (98-614C) COMMONWEALTH EDISON. COMPANY (98-621C) BOSTON EDISON COMPANY (99-447C) GPU NUCLEAR, INCORPORATED (00-440C) WISCONSIN ELECTRIC POWER COMPANY, (00-697C) POWER AUTHORITY OF THE STATE OF NEW YORK (00-703C) OMAHA PUBLIC POWER DISTRICT (01-I15C) NEBRASKA PUBLIC POWER DISTRICT (01-I16C) TENNESSEE VALLEY AUTHORITY (01-249C) Plaintiffs,
V.

UNITED STATES OF AMERICA, Defendant. Washington, D.C. Friday, May 3, 2002 Continued Deposition of RONALD MILNER, a witness herein, called for examination by counsel for
Alderson Reporting Company, Inc. l 111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM
Ronald Milner

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May 3, 2002

McLean, VA

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Plaintiffs in the above-entitled matter, pursuant to notice, the witness being previously duly sworn by CATHERINE S. BOYD, Notary Public in and for the Commonwealth of Virginia, taken at the offices of Shaw Pittman, 1650 Tysons Boulevard, McLean,. Virginia, at 9:15 a.m., Friday, May 3, 2002, and the proceedings being taken down by Stenotype by CYNTHIA R. SIMMONS, RMR, CRR, and transcribed under her direction.

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Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM
Ronald Milner

Document 311-2
McLean, VA

Filed 03/26/2007

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May 3, 2002

Page 443

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consider'? A. I recall maintaining a list of approved

DCS's and looking at that list versus utilities which we might be aware were running out of pool space. which had,a lower priority .ranking than another which had sufficient pool space. And, you know, the potential of in essence brokering something between thetwo utilities. Q. And do you recall any consideration of

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developing a computerized system for providing information among utilities on approved DCSes? A. Q. I do now reading this. But you don't have any independent

recollection beyond this document? A. Q. No, I don't. If I could turn you to the first page of Do you know whether this

the attached draft report. report was ever finalized? A.

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I don't recall whether it was or not. In

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any event this is a contractor report which would never relate to a position the Department took, simply input data to it. Q. position? A. It would never reflect, I'm sorry; not You say it would never r~late to a

Alderson Reporting Company, Inc. 1111 14th Street,N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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Case 1:00-cv-00697-JFM
Ronald Milner

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May 3, 2002

McLean, VA

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relate, it would never reflect the Department's position, it would simply input data to it. Q. The Department would have to subsequently

take a separate position which might or might not approve or reflect what the contractor recommended? A. The Department would take a position based

on information from a number of sources including its contractor's input. Q. I see the last sentence of the second

paragraph on this page states that, the next to the last sentence, "Based on the preliminary evaluations of the cost, complexity, maintenance requirements, and the accuracy and timeliness of the information provided through these various options, the Department has decided to develop a PC-based electronic bulletin board system, the DCS exchange network." A. from? Q. sir. A. Q. Okay. The next to the last sentence. You see it The second paragraph under introduction, I'm sorry; what paragraph are you reading

states that the Department has decided to develop a PC-based electronic bulletin board system?

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Alderson Reporting Company, Inc. 1111 14th Sla'eet, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

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BSA

Case 1:00-cv-00697-JFM
Page 1826

Sacramento Municipal v. UoS

Document 311-2

No. 98-488C March 29, 2005

Filed 03/26/2007

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XMAX(I/1)

Page 1828 I) APPEARANCES (Continued:) 2) 3) ON BEHALF OF THE DEFENDANT: 4) ALAN J. LO RE. ESQ. 5) JOSHUA E. GARDNER. ESQ. 6) TODD J, COCHRAN, ESQ. 7) SCOTT DAMELIN. ESQ, B) RUSSELL SHULTIS. ESQ. 9) ELIZABETH THOMAS. ESQ.. (10) U.S. Department of Justice (ii) 1100 L Street. N.W. Washington, D.C. 20036 (12) (13) (14) ALSO PRESENT: (15) STEVEN M. COHN. ESQ. (16) STEVE J. REDEKER (17) THOMAS POLLOG (18) (19) ***Index appears at end of transcript*~ (20) (21) (22) (23) (24) (25)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS I) 2) ................................ x 3) SACRAMENTO MUNICIPAL qTILITY : ¯ 4) DISTRICT, 5) INO. 98-488C 6) Plaintiff : 7) vs. : 8) UNITED STATES. : 9) Defendant. : (10) ................................ : (11) Courtroom 5 (12) National Courts Buil.ding (13) 715 Madison Place (14) Washington, D.C. (15) (16) Tuesday, March 29. 2005 (17) (18) VOLUME 7 (19) (2O) The parties met, pursuant to the notice of the (21) Judge at 9:00 a.m. (22) BEFORE THE HONORABLE SUSAN G. BRADEN (23) (24) (25)

Page 1827
(i) APPEARANCES: (2) ON BEHALF OF PLAINTIFF: (3) DAVID S. NESLIN. ESQ. (4) TIMOTHY R. MACDONALD. ESQ. (5) Arnold & Porter LLP (6) 370 Seventeenth Street Suite 4500 (7) Denver. Colorado 80202-1370 (8) (9) (303) 863-2301 (10) (11) HOWARD N. CAYNE. ESQ. (12) Arnold & Porter LLP (13) 555 Twelfth Street. N.W. (14) Washington. D.C. 20004-1206 (15) (202) 942-5656 (16) (17) (IB) (19) (20) (21) (22) (23) (24) (25)

Page 1829
1) PROCEEDINGS 2) 3) THE COURT: Let's go. 4) Whereupon-5) DAVID ZABRANSKY 6) a witness, called for examination, having previously been 7) duly sworn, was examined and testified further as follows: (B) CROSS-EXAMINATION (Resumed) (9) BY MR. CAYNE: Q, Good morning, Mr, Zabransky. (IO) Good morning. (11) A. (12) Q. I'd like to turn your attention to (13) Plaintiff's Exhibit 121. I believe that will be in (14) the first binder, one out of three. Do you have that (15) document before you. sir? (16) A, Yes, I see it. (17) Q. And is this document a memorandum from you to (IB) -- was this a memorandum from you. sir? (19) A. It's an e-mail from me to Mr. -- I believe (20) it's Auke Pi~rsma. (21) Q. And Who is that person? A,. Mr, Piersma, used to be with a group called (22) (23) Public Citizen. (24) Q, And there's also a CC? (25) A, Yes.

Heritage Reporting Corporation

(202) 628-4888

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Case 1:00-cv-00697-JFM
Page 2110 one entity. So essentially, the vast maiority of contracting that the program does in order to conduct its activities, both at the repository, through the transportation, the waste acceptance area, for instance, and other areas, systems area, for ~'~stance, that I manage, are also dor~ by Bec,hte~ SAIC Corporation, with the help of subcontractors. Q. Now, in terms of your job, how do you use the contractors that you reference, both the M&O and subcontractors? A. Well, we have an annua~ task statement with them under which they do individual studies for us, and when there are specific guidance that we want to give them about a specific report, we will issue a technical direction letter asking them to conduct a certain study for us, and then they provide those studies, and we review them, provide comments, and that's essentially their role. Q. Are those considered deliverables under this contract? A. Yes, they are. Q. Now, how does DOE - I assume, are these written products that you're referencing as studies? A. That's correct. Q. How does DOE regard these types of reports

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XMAX(72i72)

Sacramento Municipal v. U.S
(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)

No. 98-488C March 29, 2005
(11 (2) (3) (4) (5) (67 (7) (8) (9) (10) (11~, (12) (13) (14) (15) 116) (17) (16) (19) (2o) (21) (22) (23) (24) (25) Page 2112 site recommendation that we adopted and we accepted the language in those reports, and therefore, it was issued under a DOE identification number, and it was considered a DOE documentl Q. Within OCRWM, who is responsible for setting policy regarding the Civilian Radioactive Waste Management Program? A. It's the director of the program. Q. Now, your description of, I guess, the type of approval needed for - or that you view for contractor reports or documents, wouJd that a~so apply to verbal statements by contractors? A. Verbal statements by contractors have no binding influence on the department. It's just their views of the world as they see it. Q. Now, Mr. Kouts, you had mentioned, I believe, in your description of your background, the first position or job that you had within OCRWM related to an MRS proposal to Congress. Can you describe for the Court what your job entailed in that position? A. Okay. Section 141 of the Nuclear Waste Policy Act basically requested the Department submit a proposal on monitored retrievable storage to the Congress for its consideration, so when I joined the

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (2o) (21) (22) (23) (24) (25)

Page 2111 prepared by contractors? A. They're essentially the view of the con.tractor, and unless the Department issues its own report under its own letterhead, with the DOE stamp, as well as a document number, that's not DOE po§ition or DOE policy. THE COURT: Right. You're just getting advice? , THE WITNESS: Right, that's correct. BY MR. DAMELIN: Q. And in terms of, I think you said putting it on DOE letterhead or the equivalent of that, who makes that decision regarding a contractor report or study or document? A. It's typically a DOE official, and that's routed through our senior management, and a decision is made that that document is acceptable and will be issued under a DOE letterhead. Let me give you an example. For instance, when we went through the site recommendation process, we went through many, many drafts of documents that were related to the Secretary's recommendation. And those drafts were prepared by contractors, but it wasn't until the Department issued those final documents that became part of the

Page 2113 (1) program, there was a small MRS team that was tasked (2) with putting together that proposal. And that's /3) my specific responsibilities had to do with the needs (4) andfeasibility analysis of the, of the MRS, which (5) was contained in volume two of the proposal. (6) That volume two was an environmental (7) assessment, which was also required by Congress, the (8) needs and feasibility analysis, which was also (9) required by Congress, and a program plan, which was (10) volume three of that. So those were basically my (11) responsibilities. I worked as a member of that team. (12) Q. And was that team part, or included as part (13) of OCRWM? (14) A. Yes, it was a small group that worked for (15) an office director within OCRWM at that time. (16) Q. And just so I'm clear, the Section 141 you (17) reference, that was to the Nuclear Waste Policy Act? (18) A. That's correct. Q. Now; as part of this team that you (19) mentioned you were working on, what Steps did DOE (20) (21) take to address the MRS provision of the Nuclear (22) Waste Policy Act? A. Well, the, the, there was fairly specific (23) guidance given in Section 141. They requested a (24) (25) combination of at least five facilities and the - or

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Heritage Reporting Corporation

Case 1:00-cv-00697-JFM

Document 311-2

Filed 03/26/2007

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CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 26th day of March, 2007, a copy of foregoing "DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S "NOTICE OF DEPOSITION AND TRIAL TESTIMONY DESIGNATIONS" AND, IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE RELIANCE UPON THOSE DESIGNATIONS AS SUBSTANTIVE EVIDENCE PURSUANT TO RCFC 32(a) AND FEDERAL RULE OF EVIDENCE 801(d)(2)," was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Marian E. Sullivan