Free Motion in Limine - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

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13.

Defendant' s Proposed Findings Of Uncontroverted Fa~t Regarding The Rate Of Spent Nuclear Fuel Acceptance In Re: Yankee Atomic Electric Company v. United States of

America

14.

Defendant' s Motion For Partial Summary Judgment Regarding The Rate of Spent Nuclear Fuel A~tance In Re: Yankee ~tomic Electric Company v. United States

America
States of America .

15.

Appendix To Defendant's Motion For Partial Sununary Judgment Regarding The Rate Of Spent Nuclear Fuel Acceptan~ In Re: Yankee Atomic Electric Company v. United

16.

Appendix Exhibits to Defendant' s Motion for Sununary Judgment Regarding The Rate of Spent Nuclear. Fuel Acceptance (Index I-XI)

17.

Transcript of Proceedings In Re: Yankee Atomic Electric Company, et al. v. UnitedStates of America, November 16

2001

18.

Connecticut Yankee s Responses To The Goveriunent' s First SetOfInterro gatories In

Re: . Connecticut Yankee Atomic Power Company v. United States of America
19.

Maine Yankee s Objections and Answers To The Govemment' s First Set of

Interrogatories In Re: Maine Yankee Atomic Power Companyv. United States

America
Pre,.TrialFilings

20.

Yankee Atomic s Objections and Answers To The Governttlent' s FitstSetof Interrogatories In Re: Yankee Atomic Electric Company v. United states of America
Submitted by Connecticut Yankee Atomic Power Co. ,

21. 22.

June 30 , 1999

Pre-Trial Filings Submitted by Yankee Atomic Electric Co. , June 30~ 1999

Discove
23.

1995 Acceptance Priority Ranking and AnnualCapacity
(DBOOO246-

DBOOO298)

Report September 1996

24.

Documents Regarding the Trading of Spent Nuclear Fuel by Maine Yankee; Connecticut Yankee & Yankee Atomic (CTR-O04- 0035- CTR-OO4- 0042; MOF027746-MOFO27750;
YDKOO8886~YDKO08887; YDKOI6562-YDK0l6573; YDKOO9745; HQOOI 1257- . - HQOO11267; YDKO21815-YDKO21818; YDKO45573-YDKO45574; PA- 158652-PA~ 158759;YDKOO9746-YDKO09747; YDKO11481; YDKOO9748; YDKOO9699YDKOO9703)

25.

Plaintiffs Experts Graves , Wise, Stuart , Pennington & Barry discovery documents
(ElOP 1 0OOOI-

ElOP50002 1)
079

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26. '
27. 28.

epartffient of Eneigy Audit Documents (AUDOOO199;.AUDoOo215)" withilrtached Cover l6tterftom Kevin Crawford to Mark 'N ast dated December 27, 20001

Documents related to Graves ' Expert Report iIDd Analysis &XP1O001-~XPlOO20l) Mission Plan for the CiVilian Radioactive Waste ManagemenfPrdgr8Ui, VolUme I, June 1985 (HQR-Q()3- 1088-HQR-OO3- 1263) -

29.

Part II, InfonnationRequired By The Nuclear Waste Policy Act (HQR-OO3- 1264-HQR003OCR WM Mission Plan Amendment With Colnments on th~ Draft Atheridllient and

1620)

30.

Responses to the CQmm~ts, June 1987 (H~~-()()j- 164I-H~R~~~~1777)
31.

NAC International Report entitled "Analysis of the Shi:pp~g and Storage Si~tion at S. CommerCial Nuclear Reactor ~d Storage Sites" prepared by Spriggs ana' ,
Hollingsworf:h, April 1999 (NACOOQ496-NACOO0840),

-

32.

NAC Internatio~al Report entitled "E~ecutive Summary of the Costs of Managing Spent Commercial NuClear Fuel in the United States" prepared by Spriggs andHolliri.gsworlh
June 1999 (NACQO0841-

NACOOO891)

33.

Fax from Deap. ,Murp~y of Spriggs and Hollingsworth to Jerry, Stouck of The Brattle Group dated May 5 , 1999 Re: ResUlts ofMust-MoveAIiaIy.sis (EXPIOOOOl'-EXPI00201)

Depositions
34.
35.

Deposition and Exhibits ofWi1liaril H. Odell , October 18;' 2001:'
Deposition arid Exhibits of Frederick Williams , ()ctbber i 6:;17,'2001
Deposition and EXhibits of Russell A. Mellor, ()ctober 25-26~ 2001

36.

37.
38. 39.

Deposition and Exhibits of

Michael Ten-eII ,

October 29 2.001

Deposition and Exhibits of Brian C. Woods , November S..9 , 2001
Deposition and Exhibits of Loring E. Mills , November 7 & 9, 2001

40.

Deposition and Exhibits of Kenneth T. Wise, November5~7; 200l

and January 10 ,

2002

4l.
42.
43.
44.

Deposition and Exhibits of George D. Whittier, NovemberT;.2 , 20tH
Deposition and Exhibits of John M. Buchheit, October 31, 2001 and November 1- , 2001

Deposition and Exhibits ofChristopherC. Barry, November 6Deposition and Exhibits of John W. Bartlett , October 29, 2001

2001

080

. ..
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...

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Article entitled "Free-Agency and the Concentration of Player Talent in Major League Baseball" by Cmig A. Depken, II, the University of Texas at Arlii1gton,Dq)artment of Economics
Article entitled "The Sports Business as a .Labor Market Labor~ry" by LaWrence M. Kahn, Journal of Economic Perspectives , Vol. 14, No. 3, Summer 2000

85.

86.

Article entitled "Labour Markets in Professional Sports" by
Sanderson, The Economic Journal; 111 (FeQruary 200.1)

Sh~ Rosen arid Allen
PrograIUS for,

87. "

Arti.~~e entitled "The

. Weak-Drawing Franchises'; byJ~es
88.

Salary Cap and th~ , Luxury Tax: 4:ffinnativ~ Actjon

Stee-Rikc, Four! ~att sWio~~ QUir.k, Business of Baseball? edited by Daniel R. Marburger, Prileger 15)97

wi~

Article entitled "The Impact of Free Agency on the Distribution of Playing Talent in Major League Baseball" by Christopher R. prahozal , Journal ofEC?nomicsand Business

, 1986: 38

89.

Article entitled "Free-Agency and the Competitiveness of Major Uague BaSeball" by Craig A. Dep~en II, Review of Ind~trial Organization 14, 1999
Article entitled, "The Co3$e Th~rem, Free Agency, and Major Lea~e Basebali: A Panel , Study ofPitch~Mobility from 1961 to 1992" by Tib1othy R. Hylan, MaureenJ. Lage MichaelTreglia"Southem EconomicJourtlal; vol. 62, no. 4

90.

, Aprill~?6

91.

Article entitled "Ho$pitality versus Exchange: the Limits ofMonewy Eoonomies Stephanie Ben andJolm F. Henry, Review of Social Economy, June 1 2QO.l '

92.

Article entitled "A beginner s guide l3usiness Review, March 22 , 1991

to corporate barter" bY-Nigel M. Healey~:'

minois

93.
94.

Arti,cle entitled "Trading Places" by Mary Kwak , Inc. Vol. 22 , No~ 14 October 2000

Article entitled "Is Why We Use Money Important" by Victor E~ Bank of Atlanta, Economic Review, First Quarter 2001 '

, Federal Rese

95.

Article entitled, " A Search-Theoretic Approach to Monetary Economics" by Nobuhiro Kiyotaki and Randall Wright, The American Economic Review , March 1993 , Vol. 83 No.

96.

Article entitled " Social and Economic Behaviour in Organizatiqns: Restrtcflng the Means of Exchange Within Organizations" by Canice Prendergast and Lars Stole, European Economic Review 43 (1999)
Article entitled " Bargains , Barter and Money" by Merwan Engineer, Review of Economic Dynamics 4 (2001)

97.

081

., .

, .

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- 798.

Article entitled "A Theory ofMon:etaryJ~xchange;; by Alfred LorriNonnan,

Review of

Economic studies (1987) LIV
99.
Article entitled ~'

Money and B~er in General Equili~ri1.JU1 with Transactions Costs" by Jiirg Niehans, American Economics ReView, voL 61 , no. 5 , December 1971

100.

, Articleentitl~ "Asymmetry"

Iml?erfectlyTransferable Utility, and The Role of Fiat Money In Improving Tenns o,tTrade" by Me(Wan Engineer and Shouyong Shi, Journal of Monetary EooD.omics 41 (i998)
Article entitled ~'

101. ,

Simu1atinga Multiproduct Barter Exchange Economy by Daniel Levy

and Mark Berg~Ecoll~ipicInquirY,

Vot xxxI, April 1993 .

102.

Article entitled t'Insti~onal Guidelines for Designing Successful Transferable Rights Programs"by:!ames1'..B. T~PP ~dI?aniel!. !)udek, Yale journal on Regulatioil1989
Article entitled ~'

:103.

EconomicsPrescriptions fo~~nvironmental Problems: How the Patient Followed the Doct~~ s Orders" by RobcifW JI~JOurilal of EcOnomic Perspectives,
Vol. 3 ,

No.

, Spring 1989

104~

Articleelltitled ~' Marlce~ble

Permits: ~so~

for Theory and. Practice" by Robert W. .

Hahn and Gordon L. Hester Ecology 4w

QUarterly, Vol. 16, 1989 .
Economic Review, Vol.

105.

, Richard . Article entitled " Ttte Market for Sulfur Pjoxide Emissions" by Paul L. Joskow

ScbmalenseeandElizabeth M. Bailey'~ The. Atri~can

September 1998 '

88, No.

106.

Article entitled "Ellviromnental Commodi~i~s Markets: ' Mes$y' Versus ' Ideal' Worlds" by Richard J. MCCann, Contemporary Econ~niic Policy, Vol. XIV; July 1996

107.

Tr~eable P~its" by Robert N. Staving, Journal of Environmental Economies and Manag~ent 29 (199?) "
ArticleentiUed "1'ransacti9n

Cos~ and

. 1 08., Article entitleq "What Can We Learn ftom the Grand Policy Experimep.t? Lessons ftom
SQ2 Allowan~_TTading" by RoQet1 N. StavinS, JOunl8I ofEconoiriicPerspeCtives~ Vol.

, No. 3
109.

Summer 1998 "

Article entit~ed"Mark.et Failurein Incentive-Based Regulati~n: The Case of Emissions Trading" by Scott Atkinson and Tom Tietenberg, Joumal~fEnvironmental Economics

and Man~gement 21 (1991) '
110. . Article entitled., "
111.
Why Are

There So Few Transactions AmoIlgWater Users?" by Robert

A. Young, American Journal of Agricultural BcOliomics

Vol.68, No.

, 1986

Article entitled " Bargaining Rules for a Thin Spot Water Market" by R. Maria Saleth John B. Braden and J. Wayland Eheart, Land Economics , August 1991 , 67(3)

082

,...""

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112.

Article entitled "Do Water Markets ' Work' ? Market TransferS and Trade-Offs in the Southwestern States" by Boimie Colby Saliba, Water Resources Research, Vol. 23 , No~

, July 1987
AU, thQ

113. Article entitled "EP A' s Bubble Policy: the Theory of Marketable Pollution Permits
Confronts Reality" by Richard A. Liroff ~Ii1 Marketable Pollution Permits
114.

Article e~ititl(Xi "Where Pid
Regulation, 1989, Vol. 6

Markets Go? An Analysis ofEP A' s Emissions
L~. Hester;'

Trading Program'" by Robert Vi. Hahn and Gofdotr

, No. 109" '

yate J oumal on

11 $,

: ~cle mtitled "Emissions Trading: Why h; This :rh6~ugbbr~ Bobbled?;' byPaniel J. Dudek andJobn P~o Cohimbia Journal of EnvttonmenW Law, Vol. t:3:2l7

116~ . Articl~ entitled "Emissions Trading and Transaction CO$ts:AhalyZin$ the Flaws in the Discussion byEc1win Woerdman, Ecological Economics 3'8 (2001) 293

117. Article entitled "891 A11owan~Tiading: HoW-Do .Expectations ~d Experience Measure.
Up? By Douglas R.. Bohi and Datlas Burtraw, The ElectricityJourmil, AugUst/September

1~7
Regulation, Vol. 1: 63

118.

Article entitled "The l~ehaVj,or of the

A1lowaIi~ Market: Theory ari~ Evid~nce" by , Robert W. Hahn and Carol A. May, The Electricity JOulnal, March 1994

119.

Article ~~tled "Barriers to Implemei)ting Tradabl~ Air Pollution Pennits:Problems Regulatory futeractions" by Robert W. Hahn aIid Roger G. Noll~Y ale Jourmilon

, 1983

of

120. , Article entitled "Tn~ns~ction cOstS in Pollution Markets: An EmpirictU StU.~y' by Lata
Gangadharan, Land EcOnomics , Novembet2000 , 76 (4)

121. Article entitled "TheUS Market (or SO2 Permits" by KlaUs Conrad arid Robert E. Kohn,
Energy Policy, VoL24~No. 12 f996:' .

122. Article entitied' TheLI~S, Allow'~ceTradii1gSyst~ for . Sulfur Dioxide: An Update on
Market Experience'; by Renee Rico , Environmental and Resource Economics, March
1995

123.

Article entitled~'

An Interim Evaluation of Sulfur Dioxide Emissions Trading" by Richard Schmalensee Paul L. Joskow, A. Denny Ellerman, Juan Pablo Montero and Elizabeth M. Bailey, Journal of Economic Perspectives , Volume 12 , Number 3, SUmmer 1998
Article entitled "Carbon Taxes , and Carbon Emissions Trading'; by Paul Ekins and Terry Baker, Journal of Economic Surveys , Vol. 15 , No. 3 (2001) .

124.

125.

Article entitled " Sellers ' Hedging Incentives at EPA' s Emission Trading Auction" by Bouwe R. Dijkstra and Marco Hahn , Journal of Environmental Economics and Management 41 (2001)

083

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;:r '

126.

, ArtiCl~'

erititied 'po ilution Permit Markets with Intertemporal Trading and Asymmetric Iilfol11\ation" by Andrew J. Yates and Mark B. Cronshaw, Journal of EnVironmental

Economics and ~anagemen~, 42

(2001)
Ponution

127. Article entitled "seiter fucentive Properti~ of EP A' s Emission Tmding Auction" by.
128. . " Articl~ ~titl~~~smg M~k~tS
tQ ' Allo~te

TimothyN. Cason, Journal of Environmental Economics and Management 25 (1993)

P~tS and Other Scarce- R~Urce

Rights Under (United Infonnatioii'" by Tracy R. Lewis , David E. M. Sappington, Journal

of Public Economics 57 (1995) '
129. ' ~cle entitled Excl~i()nary ManipUlation ofMarke~ for Polluti(jn Rights" by Walter S. Mlsiolek and Harold W. Elder, Journal of EnvironmenW Economics and Management 16 (1989)
130., ' Article ~titled " MarJ.cet P o~~r ~dTransferable Property Rights" by RobertY'. Hium Quarterly JO1.unal ofEQOnoInics, Novem~er 1984

, 131., Article entitled/~eoretical
AU: l\1:~hanj~ Appr()ach to

and

~q!,ctical Possibilities and Limitations of a Market

Febniary 1992 ,

68(1)

Pollution Control" by William S. Vickery, Land Economics

132.

Article entitled "Marketable Emission Permits: Efficiency, Profitabilityand Substitutability" by Rose Anne Devlin' and R.Quentin Grafton, canadian Journal of EconOUJj~ XXIX, April 1996
New Emissions Trading Program for Los Angeles" by Scott Lee Johnson and DavidM. , rekel~~y, Land Economics , August 1996, 72 (3)

133. Article entitled " Economic Assessment of the Regional Clean Air Incentives Marke~: A

134.

Articie entitled " AttitUdes'Toward Risk and cOmplianeein Emission Permit Markets" by Shaul Ben-David, David Brookshire, Stuart Burness, Michael McKee and Christian Schmidt, Land ~conomi~s, Nov~ber 2000, 76 ,(4)

135. Article entide&:iWliy Sulfur Trading Failed in the UK" by Steve Sorrell, Pollution for
136. Article entitled "Efficiency and Distributional Aspects of Market Mechanisms m the
Colltrol ofPol~ution: an Empirical Analysis" by Nick Hanley and Ian Moffatt, Scottish Journal ofPoliiieal Economy, VoL 40, No. 1 , February 1993
Article entitled " Emission Trading in theory and Practice: An Analysis of RECLAIM in Southern California" by O. Fromm and B. Hansjiirgens, EnviioIuneilt and Planning C: Government and Policy, 1996, Volume 14

Sale

137.

084

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Article entitled "Too Much Market? Conflict Between Tradable Pollution Allowances and The "Polluter Pays" Principle" by Jon~than Remy Nash, Itarvard Environmental Law Review, Vol. 24

, 2000

139.

Article entitled "Political Obstacles to the,kpl~entation ofEmissioIis, Markets: Lessons from RECLAIM" by Dale B. Thompson, NatUral Resources Journal, Vol. 40, Summer

2000 '

140. . '

th~ EP A' ' Article entitled" ~:x.perimental Investigation of the SellerIn~tives in Enrlssion T~ing Auction" by Timothy N. G'aso~!heAinericiii' Economic Review, September 1995, Vol. 85 , No.

\41.

Article entitled "The Political Economy of Market-Based Enviromp.ental Policy: The S. Acid Rain Program" by Paul L. loskow and RiclJ.jU'd Schmalerisee , Journal of Law and EoonomiCs, VoL XLI, April

195)8

142.

Articl~ entitled " The Political Economy of International Emissions Trading Scheme Choice: A Theoretical Analysis" by Ian-Tjeerd Boom and Gert TinggaardSvendsen,

Journal of Institutional and TheoretiCal Economics, VoL 156 (2000) '

143. , Article from Nuclear Energy Institute entitled "T,Jtilities Seek Court Order R~uiring
, Energy Department To Dispose or'UsedNuclear Fuel '
144.
Article from

~~at

.r~

~eb~ 19, 1998

www. sciencefridav. com entitled "Hour Two: Nuclear Waste

toragelScien~Budget, February 6 , 1998 .

145.

Article from Citizens Against Government Waste entitled" Nuclear Waste Storage

Books
146.

Excerpts from Chapter 26 Money and COmmercial Bankii1g" from Economics Fifteenth Edition by Paul A. Samuelson, William D. Nordhaus and Michael J. Mandel
1995 , MacGraw Hill '

147. Excerpts from Chapter 13
148.

Price Exchange, Transaction Costs , and Money' rrdm Theory and Applications. Sixth Edition by Jack Hirshleifer~d David Hirshleifer, 1998

Prentice Hall
Excerpts from

Emissions Trading Under the U S. Acid Rain Program: Evaluation of Compliance (X)sts and AllowanCe Market Performance by A. DerinyEllerman, Richard Schmalensee, Paul J. Joskow Juari Pablo Montero and Elizabeth M. Bailey, October
1997 , Massachusetts Insfitute of Technology .

Worldng Papers. Discussion Papers and White Papers
149.

Working Paper entitled " Non-Monetary Exchange within Firms and Industry" by Canice Prendergast and Lars Stole, NBER Working Paper Series , September 1996

085

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11.
150.

Discussion Paper entitled "Cost Savings San Allowance Trades? Evaluating the S02 Emission Trading Program to Date" by Dallas Burtraw, Resources for the Future
February 1996

151.

Costs and the P erfonnance of Markets for" Pollution Control" by Robert N. Stavins,. R~urces for the Future, June 1993
White Paper entitled " Responsible Nuclear Waste Disposal an Unmet ObligatiQn
sponsored by 'O1e New England Council , Inc., Yankee Atomic Electric company,

Discussion Paper entitl~ "Transaction

152.

Connecticut Y3Dkee Atomic Power Compariy, February 2001
Mist~naneous D.oculltents
153.

Cases arising under the Standard Contract At 10 C. R.. Part 961 Pending Before The Court ofFedeial Claims Delivery Connriitment Schedules

154.

155.
156.

Final Delivery Schedules

Binder entitled "Spent Nuclear Fuel Litigation Fee Adequacy Reviews Binder entitled " Spent Nuclear Fuel Litigation Total System Life Cycle Costs"
Binder entitled " Spent Nuclear Fuel Litigatio~ - MRS, Volume 1"

157.
158.

159.

Binder entitled "Spent Nuclear Fuel Litigation - MRS, Volume 2"

086

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ExhibitC

OFF Acceptance Schedule For

Connecticut Yankee s SNF

Under Plaintu:t's Aggregrate Acceptance Schedule

Year
1998 1999 2000
2001

Beginning Inventory

Acceptance ofSNF
87. 41. 42. 21. 42. 21. 44. 22. 21. 21. 21.

Ending Inventory

2002 2003 2004 2005 2006 2007 2008 2009

2010

449. 361. 319. 277. 255. 213. 191. 147. 147. 125. 103. 81.41 59.

361. 349. 277. 255. 213. 191. 147. 147. 125.
' 103.

81. 59. 59.

Source: Backup materials to Frank Graves ' Expert Witness Report.

088

: ....

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Document 816-9

REPORT OF DANIEi! R. FISCHEL RE: MAINE YANKEE POWER CONJPANY V. UNIT~DSTATES

'1

QUALIFICATIONS.
I am Director, Chairman and President
, that specializes in the application of of

Lexecon Inc., a cOnsulting firm

economi6s to a variety of legal and regulatOry issues. f am
of

also the Lee and Brena Freeman Professor

Law ~nd Business at The University of Chicago
of

Law School. I have serv~ previously as Dean qf _The University
, Director oOhe Law and Economics Program ~t The University of

Chicago Law School,

Chicago Law School and as
of

Professor

of

Law arid Business at The University

of

Chicago Graduate , School

Busines~.

Both my research and'myteaching have concerned the economics of

corporate law. I also have lectured widely in this area. I have published approximately "forty ,
articles iii leading' legal and economics journals and am coauthor, with Judge Frank Easterbrook
of the Severith Circ~it cOurt of Appeals, of the book The Economic Structure of

Corporate ' Law

(Harvard University Press). Courts of anlevals, including the Supreme Court oftheUhited

States , have cited myarticles as
114 S. Ct. 1439(1994);

authoritawe.

See,

Central Bank v. First Interstate" Bank,
246 n. 24 (1988); and

Basic Inc: ". Levinson,

485 U. S. 224,

Edgar v.

MITE Corp. , 457 U. S. 624, 643 (1982). My curriculum vitae , which contains a list of my publica-

lions, is attached hereto as Exhibit A
I have served as a consultant or adviser on economic issues to , among
oth~rs, the United States Securities and Exchange Commission, the National Association

Securities Dealers , the New York Stock Exchange , the Chicago Board
States Departm~nt of Labor, the United States Department of

of

Trade, the United

Justice , the Federal Deposit

Insl,Jrance Corporation , the Resolution Trust Corporation, and the Federal Trade Commission.

' "' '

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Case 1:98-cv-00126-JFM

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I am a member of the American Economics Association and the American
FInance As sociation.
I am , also
a member of the Board of Directors of the Center for

the Study

of the Economy and the State at The University of Chicago, and

former

Chairman of the

American Association of Law Schools' Section on Law and Economics. I have testified as an

expertwitne~s, in:multipl~ proceedings in federal and state COl,lrts across , the country, as detailed
in , Exhibit

A.

billing rate is $1 000 per hour.

II.

INTRODUCTION AND SUMMARY' OF CONCLUSIONS.
In 1982, Congress enacted the Nuclear Waste PolicY'
Act ("

NWPN) wnich

created a program for the permanent disposal of spentriuclearfuel (" SNP') and high-level
radioactive waste (" HLW") generated by domestic commercial nuclear power plants. Complaint,
117. f'ursuanttothe

NWPA, the Department of Energy (" DOE" ) ~ntered into a cpntract in1983

with plaintiff Maine Yankee Power Company (" Maine Yankee ) which provided tha~ the
Govemment WQuid , accept and dispose permanently of Maine Yankee sSNF and HLWin return
for the payment of fees by Maine Yankee.

., 1m 1 & 8. DOE entered into contrCicts with the

/"5')

oWners of Qther commercial nuclear power plants (referred to inthe standard-form contracts as

Purcha~ers ) at about the same time. Among other things, these contract~ provided that 'oOE
would begin acceptance of nuclear waste ~y January 31, 1998.

., 11 8. I understand that the

Court has found that DOE partial(y breached Maine Yankee s contract by failing to commence
acceptance by the January 31 , 1998 deadline.

Maine Yankee claims that as a result of the partial breach , it has been

forced to incur and will incur substantial additional costs to continue to store its nuclear waste on

site. Complaint, 1123. One of plaintiffs experts , Mr. Frank C. Graves, claims that " had DOE
commenced acceptance of spent fuel by January 31, 1998 with a reasonable aggregate
, acceptance rate, it should and would have completed removal of spent fuel from Plaintiffs
facility by June 2002. " Frank C. Graves Expert Witness Report (" Graves Report" ), at 3. Mr.
Graves admits that " ~ln order to achieve removal by this date , Plaintiff would need to swap

removal slots with other Purchasers" but concludes not only that sufficient exchanges would

' .
Case 1:98-cv-00126-JFM Document 816-9 Filed 06/01/2004 Page 13 of 14
, haVe occurred , but also that " Maine Yankee wou1d IhavetreCeive(dl~et revenues of $9. 1 '
fltillion

" by exchanging slots. ld. , at 3-4. Based on these conclusions, anoth~r one of plaintiff's
Wise,

experts, Dr. K~nneth T.

has opined that Maine Yankee s " total minimum damages " are

$114. 3 million. Expert Report on Damages Incurred by Maine Yankee Due to The Department
bf

Energy s Partial Contract Breach Prepared by Kenneth T. Wise, Ph. D ('Wise Reporr), at 8. .

This figure represents the sum of the estimated incremental costs of on-site storage through
2010 that Maine Yankee will incur in the " Breach World" as ~II
as the foregone

exchange

receipts th~t Mr; Graves claims Maine Yankee would have received in the " Nori-BteaChWOrld"
:~;, Id.

I haveooen asked by theDepartrnent of Justice to analyze plaintiff's
damage Claim from

an economic perspective. In cOnnection with my analysis; (havebee~

assisted by members of Lexecon s professional staff. Exhibit B lists the materials we have,

reviewed. eased on this revieYf and a~alysis, and my knowledge and experience, I have
reached two principal conclusions:
The claimed damages do not result from

disposing SNF and HLW by JanuarY 31

s failure to , 1998. commence '
DOE'

Plaintiff's damage claim is' speculative because it depends on assumptions about future events, assumes that DOE should have implemented a particular schedule for the disposal of Purchasers ' SNF and HLW, assumes that DOE woultl accept Greater Than Class ,C (" GTCC" ) waste and "failed fuel" under this acceptance schedule, and assumes that exchanges of' allocation sl?ts between program participants would minimize aggregate atreactor storage costs.
I elaborate upon and explain the bases for

these conclusions in lheremainder of this

report.

1. The ch:iimed incremental storage costs include $10

069, 018 in costs associated with a ra-racking of its spent storage pool that Maine Yankee initiated in 1992. Dr. Wise assumes that the re-racking was "a result of the anticipation (that DOE) would not commence accepting spent nuclear fuel until well after January 31 1998. " Wise Report, at 3. However, Mr.

~raves

assumed that

ahy

re-racking

that occurred prior to 1995 also would '

have happened

In the " non- breach world. " Graves Dep. Tr., November 13, 2001, at 404:8-405:6. Under Mr. Graves ' assumption , the costs of re-racking cannot be attributed to the breach.

, . '......\ .. , .' ;'
":j .

."'

, . "', "
Page 14 of 14

"~"

Case 1:98-cv-00126-JFM

Document 816-9

Filed 06/01/2004

III.

THE CLAIMED DAMAGeS DO NOT RESULT. FROM DOE' S FAILURE TO COMMENCE DISPOSING SNF ANt) HLWBY JANUARY' 31, 1998. '

8. '

Maine Yankee s only generating plant was a nuCieadadli ty in wi$Ca~set,
& 22.

Maine which was permanently shut down in 1996. Complaint, 11115

Maine Yankee'

claimed damages consist of the costs associated with storing its nuclear waste on site ' until

least 2010. Maine Yankee s Pre-Trial Brief of Legal Points and Authorities Relied Upon (" Pre-

Trial Brief), at 8. The claimed damages do not resul~. from D~E' s failure to commence
~ispo~ing SNF and HLW by J~nuary31, 1 ~98, because , if DO~~ad started disposing S~F and
HLW by January 31, 1998, but did not dispose of all of plaintiff's nuclear waste prior to 2010,
then pl~intiff still would have to ~tore nuclea,r waste on site throuQ~ 2010 and still would have to

incur, most ofthecosts that it claims as damages.

2 In other words, ttle claimed (jeimages do not

result from the partial breach , of contracHounci by the Gourt PLAINTIFF' S DAMAGE CLAIM IS SPECULATIVE.

IV.

As described above, plaintiff's damage claim consists oOhe estimated
incremental costs of on.,site storage through 2010 that plaintiffwQuld have avoided if it had been

able to dispose of all of its nuclear waste by 2002, 8S Mr. Graves concludes it would have. '

Therefore , plaintiff's damage claim depends critically on Mr. Gr~ves ' conclusion. However, Mr.

Graves ' conciusion is speculative because it depends on a senes of interrela~ed assumptions
about future events , the " non-breach world" aggregate acceptance schedules , exchanges

GTGG and failed fuel. Ea,ch of these critical assumptions is discusse(j below.

2. Plaintiff's damage claim depends on the assumption that all of plaintiff's nuclear waste would
Charles W. Pennington Expert Witnes s Report, at 2-3 & 6-7~Whehadry storage system (known as an independent spent fuel storage installation or " ISFSlit ) is used to store nuclear waste , the number of dry storage canistef$ will vary with the amount of inventory. Id. However, the initial and decommissioning costs of dry storage canisters are relativefy low.

have been removed because plaintiff's experts assume t hat the costs of storing nuclear waste do not vary with the amount of iliventoryat the site. ' See Graves Report, note 5 and

Id.