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

Case 1:02-cv-01894-EJD

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IN THEUNITED STATES COURT OF FEDERAL CLAIMS CONSUMERS ENERGY COMPANY, Plainti~
V.

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No. 02-1894C (Chief Judge Damich)

THE UNITED STATES, Defendant.

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DEFENDANT'SNOTICE OF FILING IN ACCORDANCE WITH THE COURT'S FEBRUARY 22.

2005 ORDER

In accordancewith the parties' discussion with the Court during oral argumenton February16, 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 in 3, is response to arguments that plaintiff, Consumers EnergyCompany ("Consumers"), presented

its reply to the Government's response to Consumers' motionfor summary judgmenton liability. Specifically, wepresent the letter to respondto Consumers' argument that, by issuing a request in 2004 for contract holders to submit new delivery commitment schedules ("DCSs"), DOE was acknowledging that the previously approvedDCSs no effect. had 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 Atm: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 Attorneys for Defendant

February 24, 2005

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ATTACHMENT

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Department of Energy Washington,20585 DC QA: N/A Jolm B. Carden M Contract Manager Procurement- "IVAN Contracts TennesseeValley Authority 1101MarketStreet Chattanooga, Tennessee 37402-2801 Dear Mr. Carden: This letter responds yourAugust 2004letter that replied to myJuly 28, 2004letter to 24, announcingthe resumptionof the Delivery Commitment Schedule(DCS)process. Yourletter indicates that Tennessee Valley Authority(TVA) will not be submittingDCSs allocations for accordedit by the 2004Acceptance Priority Ranking/Annual Capacity Report (APR/ACR) until required by the scheduleset forth in the disposal contract betweenTVA the Department and of Energy (DOE). Your letter states that "TVA understands that DOE abandonedthe March1995 APR/ACR has wasteacceptance allgcation schedule."Asan initial point of Clarification, the method of allocating acceptancepositions prior to the submission approval of DCSs and used in the 2004 APR/ACR precisely the sameas the methodused in the 1995APR/ACR. is Specifically, both the 1995APRiACR the 2004APR/ACR and utilize an "oldest fuel first" methodof allocating acceptancepositions in the acceptancequeueas providedby the StandardContract. That method of allocation has not changed is not expectedto change,absent some and futur~ amendment to the StandardContract. Withregard to the acceptancescheduleidentified in the 2004APR/ACIL schedulereflects that DOE's current planning for acceptanceof SNF the YuccaMountain at repository once operations begin in 2010, assuming that various factors uponwhichDOE's planning is based remain unchanged. Withregard to your suggestion that DOE "abandoned" 1995APPJACR has the "schedule," it is unclear whether are referring to the rates at whichDOE anticipates it will be able to you now accept SNF fi'om Purchasersunderthe StandardContractbeginningin 2010or whether, instead, you are referring to an abandonment the DCSs of that wereapprovedin conjunctionwith the 1991 ACR, the 1992 ACR,and the 1995 APR/ACR. Because TVA never obtained any has approvedDCSs, presume we that TVA wants to ensure that DOE anticipates i~s ability to approveDCSs be submittedin the future baseduponthe allocations identified in the 2004 to APP,/ACR. the extant that TVA's To concernr~la~es to DOE's ability to approvefuturesubmittedDCSs, anticipate that, based uponcurrent progress at the YuccaMountain we site, we will approveDCSs submittedin accordance with the allocations identified in the 2004 APPJACR. AlthoughPurchasers are certainly entitled to submit DCSs requesting acceptance of

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SNF underdiff~ant allocation scenarios, DOB does.notanticipate.that it will bc able to approve those requestsin light of its obligationsto allocate SNF acceptance positionsto all Purchasers on an "oldest fuel first" basis andin light of the limitations uponthe amount SNF of that DOE can accept in any givea year. However, Articles V.B,V.C,and X'VI the StandardContract provide of a mechanism resolving any disputes about acceptanceallocations and disapprovals of DCS for submissions. To the extent that TV.A concernsabout the inten'elationship between has previously approved DCSs any newDCSs and that DOE receives, the DCS approval process should eliminate those concerns. DOE understands that, whenit eppmved DCSS 1992 through 1997, it created from commitments accept specific amounts SNF to of from specific Purchasersduring'specific periods of time, and, as you know,DOE's delay in accepting SNFin accordancewith those DCSs now is the subject of litigation in the UnitedStates Courtof Federal Claims.Although had hoped DOE whenthe earher DCSs were being reviewedbeginningin 1992that it wouldbe able to begin SNF acceptance 1998for storage in a monitored in re~evablestorage facility and basedits acceptancerates uponthat scenario, DOE currently anticipates being able to begin SNF acceptance the Yucca at Mountain repository in 2010.Because the different types of facilities of eantemplated acceptancein 1998and in 2010, DOE for believes that, onceit begins accepting SNF, will be in a position to acceptSNF a different rate at a repositorythan it had it at anticipated when previously revieyvedand approved it DCSs acceptanceat a monitored for retrievable storage facility. Accordingly, the 2004APP,JACR, in we.have identified new allocations baseduponanticipated acceptance rates fhat are higher than those in the 1991,1992, and 1995 ACRs. Because the increasedanticipated acceptance of rates and the currently anticipated acceptance dates, it will be difficult to plan for acceptance SNF of baseduponthe previouslyapproved DCSs, whichcontain allocations that do not conform the current anticipated rates. In addition, to Purchasers maynowwish to ch~gethe location from whichthe SNF to'be accepted or the is dates of discharge identified in the original DCS submissions.Accordingly, ~iny newDCSs that Purchaserssubmitmayreflect these changesor request acceptance the additional SNF of eavered by the newallocations granted. We anticipate that any newDCSs that are approved will replace, rather than supplement, previously approvedDCSs. eliminate any potential confusion the To regarding the relationship~between previously approvedDCS8 newDCSs, will seek, prior and we to approving newDCSs from any Purchasers with previously approyedDCS~, agreementin an writing that anynewDCSs are approved that actually replace, rather themsupplement, the previously approvedDCSs. That agreement will be reflected in any future DCS approvals. Please contact meif you haveany questions.

David Zabrshsky Contnmting Officer Office of SystemAnalysis & Strategy Development

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CERTIFICATE OF FILING I herebycertify that on this 24th day of February2005, a copy of foregoing "DEFENDANT'S NOTICE OF FILING IN ACCORDANCE WITH THE COURT'S FEBRUARY 2005 ORDER" filed electronically. 22, was 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 throughthe Court's system.

s/Harold D. Lester. Jr.