Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _______________________________________

WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 00-697C Senior Judge Merow

WE'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF WE'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY 1. On June 16, 1983, WE entered into U.S. Department of Energy Contract for

Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste No. CR01-83NE44425 (the "Standard Contract"). WE Complaint ¶ 9. 2. In exchange for WE's payment of fees into the Nuclear Waste Fund, DOE

promised to begin removal of WE's spent nuclear fuel ("SNF") no later than January 31, 1998. Standard Contract, Art. II. Generally, DOE was "under a statutory `obligation . . . reciprocal to the utilities' obligation to pay, to start disposing of the SNF no later than January 31, 1998.'" Northern States Power Co. v. United States, 224 F.3d 1361, 1366 (Fed. Cir. 2000) (quoting Indiana Mich. Power Co. v. United States, 88 F.3d 1272, 1277 (D.C. Cir. 1996)). 3. [T]he [Nuclear Waste Policy Act] directs DOE to undertake the duty to begin

taking the SNF by January 31, 1998, whether or not it has a repository or interim storage facility." Northern States Power Co. v. Dep't of Energy, 128 F.3d 754, 760 (D.C. Cir. 1997). The duty to begin taking SNF by January 31, 1998 was "without qualification or condition." Indiana Mich., 88 F.3d at 1276. 4. On May 3, 1995, DOE formally admitted that it would be unable to begin to

dispose of SNF until 2010. Final Interpretation, 60 Fed. Reg. 21,793, 21,794 (May 3, 1995).

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5.

DOE subsequently admitted that it "did not begin accepting SNF and/or HLW

under the Standard Contract by January 31, 1998." Defendant's Proposed Findings of Uncontroverted Fact Regarding the Rate of Spent Nuclear Fuel Acceptance ("Defendant's Rate Motion PFUF"), ¶ 132. 6. DOE's failure by January 31, 1998 to begin accepting, transporting, and disposing

of WE's SNF constitutes a breach of contract. Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1343 (Fed. Cir. 2000)."The breach involved all the utilities that had signed the contract ­ the entire nuclear electric industry." Id. at 1342. 7. On November 16, 2000, WE filed a Complaint alleging that the Government

breached the Standard Contract, and further alleged that: As a direct consequence of DOE's breach of contractual obligations, WE has been and will be forced to incur substantial additional costs. For example, WE has had to construct and maintain a dry storage SNF facility known as the Independent Spent Fuel Storage Installation ("ISFSI"). Construction of the ISFSI required substantial evaluation by WE, including preparation of an environmental analysis; efforts to seek approval of the Public Service Commission of Wisconsin; and efforts to seek the approval of the Nuclear Regulatory Commission for WE's use of storage casks at the ISFSI. WE has also had to spend substantial monies in developing and purchasing these casks. As of August, 2000, such costs exceeded $35 million dollars. WE Complaint ¶ 17. 8. WE also alleged that, as a direct and proximate result of DOE's partial material

breach of the Standard Contract, WE has incurred and will incur damages in a substantial amount which, as noted, exceeded $35 million dollars by August, 2000. WE's damages continue to accrue. The rate at which WE's damages will continue to accrue is dependent upon when and on what schedule DOE finally performs its contractual obligation. WE reserves its rights to recover presently unascertainable damages that may be caused by DOE's future partial breaches of the Standard Contract. Id., ¶ 21. 9. In response to this Court's Order requesting briefs as to whether an Order shall be

issued establishing breach of contract liability in this matter, the Government "acknowledge[d] that DOE's inability to begin the services to be provided by the Standard Contract by January 31,
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1998 constituted a partial breach of the Standard Contract." Defendant's Response to the Court's July 24, 2001 Order (Aug. 15, 2001), at 3. 10. As of April 26, 2004, WE had paid $194.8 million into the NWF under the

Standard Contract payment provisions. See Attachment 1, Declaration of Paul R. Farron (Apr. 26, 2004) ¶ 3. The DOE has yet to remove any of WE's SNF under the Standard Contract. Id., ¶ 4.

Dated: April 28, 2004

Respectfully submitted,

Of Counsel: Martin P. Willard Donald J. Carney Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1635

s/Richard W. Oehler by s/Donald J. Carney Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, 40th Floor Seattle, Washington 98101-3099 (206) 583-8419

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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Certificate of Filing I hereby certify that on this 28th day of April 2004, a copy of the foregoing "WE's Proposed Findings of Uncontroverted Fact In Support of WE's Motion for Partial Summary Judgment on Liability" 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/Donald J. Carney Donald J. Carney