May 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5020, -5021, -5022, -5027, -5028, -5029. Appealed from the United States Court of Federal Claims. The Appeals Court explains that the consolidated appeal is the latest manifestation of the numerous contract disputes arising from the Government's failure to accept and dispose of radioactive waste from the nation's nuclear utilities. Specifically, the appeal flows from this court's decision in Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008), which reversed the United States Court of Federal Claims' initial damages determination, and remanded for a calculation of damages according to the rate at which the Government was contractually obligated to accept the utilities' waste.
Yankee Atomic Electric Company (Yankee Atomic), Maine Yankee Atomic Power Company (Maine Yankee), and Connecticut Yankee Atomic Power Company (Connecticut Yankee) (collectively, the Yankees) originally brought this action seeking damages to compensate for the cost of storing spent nuclear fuel (SNF) and high-level radioactive waste (HLW) beyond the time that the Government promised by contract to begin storing that waste in a permanent and secure repository. The Appeals Court indicated that on remand, the trial court correctly calculated damages for dry storage construction costs, deferred costs of loading waste to the Department of Energy (DOE), and reracking costs.
However, the Appeals Court said, ". . .the trial court erred in denying Yankee Atomic's claim for a portion of its wet pool storage costs and Nuclear Regulatory Commission (NRC) fees. Unlike Consolidated Edison Co. of N.Y. v. United States, __ F.3d __, 2012 WL 1284402 (Fed. Cir. Apr. 16, 2012), this case does not include a claim for NRC fees that allegedly increased due to DOE's breach. Rather, the plaintiff here claims that no NRC fees would have been incurred by the inactive plant if the SNF had been removed in a timely manner pursuant to the Standard Contract. See Yankee Atomic Power Co. v. United States, 94 Fed. Cl. 678, 725 (2010). Therefore, this court affirms-in-part and reverses-in-part the trial court's damages award. . ."
Clarifying, the Appeals Court said, "The trial court wisely foresaw that this court could reverse its refusal to consider these costs. For this reason, the Court of Federal Claims found that Yankee Atomic had established these costs with reasonable certainty. Thus, this court need not remand for further damages calculations, but only for entry of judgment in an additional amount of $17,021,742. Yankee Atomic's claims for wet storage pool costs and NRC fees were within this court's mandate in Yankee II. As such, the trial court's denial of these costs is reversed. The remainder of the trial court's decision is affirmed. Judgment should be entered to award Yankee Atomic Electric Co. an additional $17,021,742."
Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]
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