Free Notice (Other) - District Court of Federal Claims - federal

Case 1:02-cv-01894-EJD

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IN THE UNITED STATES COURTOF FEDERAL CLAIMS CONSUMERSENERGY COMPANY, Plaintiff, v. THE UNITEDSTATES, Defendant. )

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No. 02-1894C (Chief Judge Damich)

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DEFENDANT'SNOTICE OF FILING IN ACCORDANCE WITH THE COURT'S FEBRUARY 22, 2005 ORDER REGARDINGMOTIONS FOR SUMMARY JUDGMENTUPON COUNTS I AND II OF PLAINTIFF'S COMPL.MNTAND DEFENDANT'S COUNTERCLAIM In accordancewith the parties' discussion with the Court during oral argumenton February 16, 2005, and pursuant to this Court's order dated February22, 2005, defendant, the United States, respectfully submits a copy of the letter from the Department Energy("DOE") of to TennesseeValley Authority ("TVA") that counsel for defendant identified during the February 16, 2005 hearing. That letter is dated November 2004. This document submitted as a 3, is supplement to the appendices relating to defendant's motion for summary judgment upon Counts I and II of plaintiffs complaintand defendant's response to plaintiffs cross-motionfor snmmary judgmentupondefendant's counterclaimand affirmative defenses relating to the one-time fee. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

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

s/Harold D. Lester. Jr. HAROLD LESTER, JR. D. Assistant Director CommercialLitigation Branch Civil Division Departmentof Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 A~tomeysfor Defendant

March l, 2005

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ATTACHMENT

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Department Energy of
Washington, 20585 DC QA: NIA John B, Carden M Contract Manager Procurement- TVA.N Contracts Tennessee Valley Anthority 1101MarketStreet Chattanooga, Tennessee 37402-2801 Dear Carden: Mr. ThisIcRer respondsto your August24, 2004letter that rerplied to myJuly 28, 2004letter armouncingthe resumption of the Dehver Commitment Schedule 03CS) process. Your letter 7 indicates that TennesseeValley Authority CYVA) notbe submitting DCSs alIoentions will for accorded it by the 2004 Acceptance Priority Ranking/Annual Capacity Repog(AP~ACR) nntil rcquh'edtheschedule forth thedisposal by set in contract between andthe TVA Department of

Energy 03OE).
Your letter states that "TVA understands that DOE abandonedthe March1995 APPJACR has wasteacceptanen allpcation schedule." Asan initial point of dlarLfication, the method of allocating acceptancepositions prior to the submissionand approvalof DCSs used in the 2004 APRIACR precisely same themethod inthe1995 is the as used APR]ACR. Specifically, both the1995 APPJACR the2004 and APR/ACR ulilize "oldest first" an fuel method allocating of acceptance positionstheacceptance asprovidedtheStandard in queue by Contract. method That ofallocationnotchanged isnotexpectedchange, has and to absent future some amendment to the Standard Contract. Withregard to the acceptanceschedule identified in the 2004APPJACR, schedulereflects that DOE's current plnmaingfor acceptance of SN~ the YuccaMountainreposito~] onca operations at hegin in 2010, assumingthat various factors upon whichDOE's plmming based remain is unchanged. With regard to your suggestion that DOE "abandoned" 1995 APPJACR has the "schedule," it is unclear whether are referring to the rates at whichDOE anticipates it will be able to you now accept SNF from Purch~ers under the Standard Contract beginningin 2010 or whether, instead, you are relenting to an abandonment the DCSs of t'mt were approvedin conjnnction with the 1991 ACR,the 1992 ACILand the 1995 APR/ACR. Beeaaso TVA has never obtained any approvedDCSs,we presumethat TVA wants to ensure that DOE antinipates its ability to approveDCSs be submittedin the future baseduponthe allocations identified in the 2004 to APPJACtL the extent that'lW'A'seoneem To rela~es to DOE's ability to approvefuturesubmitted DCSs,we anticipate that, based uponcurrant progress at the YunsaMountain site, we will approveDCSs submittedin accordancewith the alIocations identified in the 2004 APR/ACR. AlthoughPu.rehasers are certainly entitled to submit DCSs requesting acceptanceof

HQR341 0001

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SNF underdifferent allocation scenarios, DOE doas.not anticipate.that it will b~ able to approve thes~ requests in light of its obligations to allocat~ SNF acaeptanc~ posRions all Purohescra to on an"oldest first' and light the fucl basis in of limitationsthe upon amount SN'F DOE of that can accept anygiven in year. However, Articles V.C, X-VI theStandard V.B, and of Conh-act provide a meshanism rasolving disputes acceptance for any about allocationsdisapprovals and ofDCS submissions. Tothe extent that TV.A concernsabout the intcr~clatiouship betweenproviousiyapproved has DCSs any newDCSs and that DOE roccivas, the DCS'approval process should eliminate those cunccrus. "DOE understands that, wh~nit approvedDCS~ 1992 furou2~A Rum 1997, it created commilmcnts accept epccific amountsof SNF to from specifiu Purchasers du.dng'epecifio periods oftime, and, youknow, as DOE's delay accepting inacen~dancc those in SNF with DCSs now is thesubject oflitlgadon United inthe States Court Federal of CIahns. Although hadhoped DOE whenthe earlier DCSs were being reviewed begiunin~in 1992that it wouldbeable to begin s2xrFaccep~nce 1998for storage in a monitored in retrievable storage facility and basedits a~cep'tance rates uponthat scenario, DOE currently anticipate.~ being able to begin SNF acceptancaat the Yucca Mountain repository in 20I 0. Br.causeof the different types of facilities contemplatedfor acceptancein 1998and in 2010, DOE belicvas that, once it begins accepting SNF,it will be in a position to accept SNF a different rate at a repositorythan it had at anticipated whenit preyiously reviewedand approvedDCSs acceptanceat a monitored for retrievable storage facility. Accordingly,in the 2004APR/ACR, we.haveiduntified new allocations baseduponanticipated auseptencerates [hat amhigher than those in the 1991, 1992, and'1995 ACRe. Because oftha increased anticipated acceptancerates and the currently anticipated acceptance dates, it will be difficult to plan for acceptanceof SNF baseduponthe previouslyapproved DCSs, whichcontain allocations that do not conform the cucrent anticipated rates. In addition, to Purchasesmaynowwishto cha~gethe location fi'om whichthe S~-Fis to'be acceptedor the dates of discharge identified in the original DCS submissions.Accordingly,~£uynewDCSs that Purchaserssubmit mayreflect these changesor request acceptanceof the additional SNF covered by the newallocatians granted. We anticipate that any newDCSs that arc approved will replace, rather than supplement,the previously approvedDCSs.To eliminate any potential confusion receding the relations]~p~betwegnproviously approvedDCS~ newDCSs,we wlil seek, prior and to approving new DCSs any Purchasers with previously approyed DCS~, agreement in Rum an writing that any newDC~s that arc approved actuatly replace, rather than supplement,the previously approvedDCSs. That agreementxyill ba reflected in any future DCS approvals. Please contact if you haveanyquestions. me

David Zabrahsky Contr~fing Officer Office System of Analysis & Strat%~--/Davelopm~nt

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CERTIFICATE OF FILING I herebycertify that on this 1st day of March,2005, a copy of foregoing "DEFENDANT'S NOTICE OF FILING IN ACCORDANCE WITH THE COURT'S FEBRUARY22, 2005 ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT OF PLAINTIFF'S COMPLAINT ANDDEFENDANT'S

UPONCOUNTSI AND II

COUNTERCLAIM" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court'selectronic filing system.Parties may access this filing tl~rough the Court's system.

s/HaroldD.Lester. Jr.