Free Answer - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

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Filed 11/19/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-0697C (Senior Judge Merow)

DEFENDANT'S ANSWER For its answer to plaintiff's complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 2. Denies the allegations contained in paragraph 2 for

lack of knowledge or information sufficient to form a belief as to their truth. 3. 4. Admits. The allegations contained in paragraph 4 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 5. Admits the allegations contained in the first sentence

of paragraph 5 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 5. The

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allegations contained in the second sentence of paragraph 5 constitute conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 6. Admits the allegation contained in the first sentence

of paragraph 6 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 6. allegations contained in the second sentence of paragraph 6 constitute conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 7. Admits the allegations contained in paragraph 7 to the The

extent supported by the statute cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 7. 8. Admits the allegation contained in the first sentence Admits the allegations contained in the second

of paragraph 8.

and third sentences of paragraph 8 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the second and third sentences of paragraph 8. 9. Admits the allegation contained in the first sentence

of paragraph 9 that plaintiff entered into a Standard Contract

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with DOE on June 16, 1983; otherwise denies the allegations contained in the first sentence of paragraph 9 for lack of knowledge or information sufficient to form a belief as to their truth. Denies the allegation contained in the second sentence of Admits the allegations contained in the third,

paragraph 9.

fourth and fifth sentences of paragraph 9 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the third, fourth and fifth sentences of paragraph 9. 10. Admits the allegations contained in the first sentence

of paragraph 10 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 10. Admits the allegations

contained in the second sentence of paragraph 10. 11. Admits the allegations contained in the first and

second sentences of paragraph 11 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first and second sentences of paragraph 11. Denies the allegations

contained in the third sentences of paragraph 11. 12. Admits the allegations contained in paragraph 12 to the

extent supported by the portion of the Federal Register cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 12.

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13.

The allegations contained in paragraph 13 are

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are admitted to the extent supported by the petition for review and court decision cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 13. 14. Admits the allegations contained in paragraph 14 to the

extent supported by the notice referenced, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 14. 15. The allegations contained in paragraph 15 are

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are admitted to the extent supported by the petition for review and court decision cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 15. 16. Admits the allegations contained in paragraph 16 that

the Department of Energy has not yet begun the disposal of spent nuclear fuel and high-level radioactive waste (collectively, "SNF") under the standard contract published at 10 C.F.R. § 961.11 and that DOE has stated that it currently anticipates it will not be able to begin SNF disposal until 2010 (see 60 Fed.

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Reg. 21793, 21794 (May 3, 1005)); the remaining allegations contained in paragraph 16 are plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 17. Denies the allegations contained in paragraph 17 for

lack of knowledge or information sufficient to form a belief as to their truth. 18. Defendant's responses to paragraphs 1 through 17 of the

complaint are incorporated by reference. 19. The allegations contained in paragraph 19 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 20. The allegations contained in paragraph 20 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 21. The allegations contained in paragraph 21 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 22. Defendant's responses to paragraphs 1 through 21 of the

complaint are incorporated by reference.

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23.

Admits the allegations contained in the first sentence

of paragraph 23 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 23. allegations contained in the second sentence of paragraph 23 constitute conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 24. The allegations contained in paragraph 24 constitute The

plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 25. The allegations contained in paragraph 25 are

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied; defendant avers that the Department of Energy has not accepted any commercial spent nuclear fuel and/or high-level radioactive waste under the auspices of the Nuclear Waste Policy Act, 42 U.S.C. §§ 1010110270. 26. The allegations contained in paragraph 26 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied.

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27.

Defendant's responses to paragraphs 1 through 26 of the

complaint are incorporated by reference. 28. The allegations contained in paragraph 28 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 29. The allegations contained in paragraph 29 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 30. The allegations contained in paragraph 30 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 31. The allegations contained in paragraph 31 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 32. The allegations contained in paragraph 32 constitute

conclusions of law and plaintiff's characterization of this action to which no response is required; to the extent that they may be deemed allegations of fact, they are denied.

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33.

Denies that plaintiff is entitled to the relief set

forth in the prayer for relief immediately following paragraph 32, or to any relief whatsoever. 34. Denies each and every allegation not previously

admitted or otherwise qualified. WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Kevin B. Crawford KEVIN B. CRAWFORD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Phone: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

November 19, 2004

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 19th of November, 2004, a copy of this "DEFENDANT'S ANSWER" 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. system. Parties may access this filing through the Court's

s/ Kevin B. Crawford