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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

Plaintiff
No. 98- 126 C

(Senior Judge Merow)

UNITED STATES OF AMERICA

Filed electronically: May 28 , 2004
Defendant.

YANKEE ATOMIC' S MOTION IN LIMINE TO PRECLUDE EVIDENCE CONCERNING FOUR GOVERNMENT DAMAGES " SCENARIOS" THAT (1) HAVE NO RELEVANCE TO YANKEE ATOMIC' S DAMAGES CLAIM , AND (2) HAVE NO BASIS IN THE GOVERNMENT' S PROPOSED FINDINGS IN ITS PRETRIAL SUBMISSIONS

JERRY STOUCK SPRIGGS & HOLLINGSWORTH 1350 I Street , N. Washington , D. c. 20005 (202) 898- 5800 (202) 682- 1639 (Fax)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:

Robert L. Shapiro SPRIGGS & HOLLINGSWORTH
Dated: May 28 , 2004

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TABLE OF CONTENTS
Pa2;e

INTRODUCTION ...........................................................................................................................
ARGUMENT ...................................................................................................................................

The Government's " Scenario 1" Is Not Only Fanciful , But Contrary To The Court' s Summary Judgment Rulings On The Rate Of Acceptance Issue. ...............................................................................................
The Government' s " Scenario 2" and " Scenario 3" Likewise Have No Basis In Fact Or In The Government' s Proposed Findings of

Fact...........................................................................................................................

Scenario 5" Is Also Not Based On Any Finding Of Fact Proposed By The Government , Much Less On Any Actual Fact............................................
The Government's Position On Failed Fuel And GTCC Waste Multiplies The Complexity Of The Irrelevant Damages Scenarios It Seeks To Present.................................................................................................
CONCLUSION............................................................................................................................. .

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INDEX TO APPENDIX
Description

Pa2;e

Transcript of Hearing on May 4 , 1999 (Excerpts) ........................... Deposition of Edward Abbott (May 10 , 2004) (Excerpts) .....................................................

Analysis ofthe Total System Life Cycle Cost of the Civilian Radioactive Waste Management Program , December 1998 (Excerpts )................................................

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TABLE OF AUTHORITffiS

Cases
Commonwealth Edison Co. v.

Pa2;e

United States 56 Fed. Cl. 652 (2003) .............................

, 13

Statutes and Rules

Fed. R. Evid. 40 1 ..............................................................................................................................

Fed. R. Evid. 402 ............................................................................................................................. Fed. R. Evid. 403 .............................................................................................................................

111

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

Plaintiff
No. 98- 126 C

(Senior Judge Merow)

UNITED STATES OF AMERICA

Filed electronically: May 28 , 2004
Defendant.

YANKEE ATOMIC' S MOTION IN LIMINE TO PRECLUDE EVIDENCE CONCERNING FOUR GOVERNMENT DAMAGES " SCENARIOS" THAT (1) HAVE NO RELEVANCE TO YANKEE ATOMIC' S DAMAGES CLAIM , AND (2) HAVE NO BASIS IN THE GOVERNMENT'S PROPOSED FINDINGS IN ITS PRETRIAL SUBMISSIONS
Plaintiff Yankee Atomic Electric Company ("Yankee Atomic ) respectfully moves the
Court in limine to preclude the government from offering at trial evidence regarding four

damages " scenarios " discussed by the government' s experts in their reports , because evidence

regarding these four damages " scenarios " (1) has no relevance to Yankee Atomic s actual
damages claim , and (2) has no basis in any factual finding proposed by the government in the

Amended Stipulation of Facts " included with the government's pretrial submissions. Yankee

Atomic is presenting this motion in advance of trial because the evidence in question appears to
be voluminous , and granting this motion will significantly streamline the trial and Yankee
Atomic s trial preparation efforts.

1 This Motion
should also be deemed applicable to 154C, and Maine Yankee v. Connecticut Yankee v.

United States

No. 98-

United States

No. 98- 474C.

- "

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INTRODUCTION

It goes without saying that the Pretrial Order that has governed proceedings in this case

for five years is intended to narrow and focus issues for trial. Contrary to that purpose , expert
reports that the government submitted in February 2004 with its final pretrial submissions introduce for the first time complex discussions of five different damages " scenarios " four of
which have no relevance to Yankee Atomic s damages claim. Only one of the five damages
scenarios " discussed by the government's experts , Messrs. Abbott and Johnson - what their

reports call " Scenario 4" - addresses Yankee Atomic s actual damages claim.

Moreover, the four irrelevant damages scenarios discussed by Messrs. Abbott and

Johnson are premised on " assumptions " about the Department of Energy s contractual spent fuel
removal schedule that have no basis in fact and , more importantly for present purposes , no basis

in the government's proposed findings of fact (titled " Amended Stipulation of Facts ) included
with the government' s paragraph 3(b) pretrial submissions. That is , the government has not even

proposed that the Court find as a fact that the spent fuel removal " assumptions " that underlie the
four irrelevant damages scenarios are factual , reasonable , or consistent with the intent ofthe

contract parties or of the Nuclear Waste Policy Act ("NWP A"). Nor do Messrs. Abbott or

Johnson offer any opinion on whether any ofthe multiple , differing spent fuel removal
assumptions " underlying the four irrelevant damages scenarios they discuss are factual
reasonable or consistent with the intent of the parties or the NWP A.

In short , the spent fuel removal assumptions underlying the government' s four irrelevant

damages scenarios are just that

assumptions. "

Consistent with the

purpose ofthe Pretrial

Order to narrow the issues for trial , the government should not be permitted to introduce at trial
evidence that is based upon assumptions the government does not even propose

as facts.

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Evidence concerning the government' s four irrelevant damages " scenarios " is inconsequential to

the determination of this action and , thus , has no proper place at trial. Fed. R. Evid. 401 and 402.

At bottom , the elaborate discussions of the four irrelevant damages scenarios in the reports of Messrs. Abbott and Johnson appear to be an attempt by the government to confuse the

real issues and complicate the trial. The Court should not permit that. Fed. R. Evid. 403.
Instead , the Court should enter an Order directing that evidence addressing the four irrelevant

damages " scenarios " discussed by the government's witnesses will not be heard , thereby

confirming what should be obvious - the only relevant damages scenario in this case is the actual
damages claim submitted by Yankee Atomic.

ARGUMENT
The Government' s " Scenario 1" Is Not Onl Fancifu

Court' s Summar Jud

But Contrar To The ent Rulin s On The Rate Of Acce tance Issue.

The fanciful nature ofthe government' s alternate damages scenarios is well illustrated by

Scenario 1" discussed by its witnesses. " Scenario 1" addresses the following hypothetical
situation: " If

it is assumed that in the non- breach world DOE (beginning in 1998) would have

picked up spent fuel at the 1995 ACR rates , the last fuel assembly would be removed from
(Yankee Atomic) in 2024.

If it is further assumed that in the breach world , DOE (beginning in

2010) will accept spent fuel at the 1998 DOE TSLCC rates , the last fuel assembly would be
removed from (Yankee Atomic) in 2020. " Abbott Expert Report at 7- 8 (footnote omitted).

This scenario is wholly imaginary, and should not be entertained at trial for several
independent reasons. First , as noted at the outset , the government' s proposed factual findings do

not even allege that the assumptions underlying " Scenario 1" have any factual basis. The
government does not ask the Court to find as a fact that , as this scenario assumes , in the "
non-

breach" world DOE would have picked up spent fuel at the rate set forth in the 1995 ACR

,"

"Document 813 Filed 05/28/2004 Page 8 of 19

Case 1:98-cv-00126-JFM

Annual Capacity Report").

The government' s

proposed findings also do not allege that , as this

scenario also assumes , in the "breach" world DOE eventually will pick up spent fuel at the rates

set forth in the 1998 DOE TSLCC, a 1998 DOE document entitled "

Analysis ofthe Total System
see

Life Cycle Cost of the Civilian Radioactive Waste Management Program
Abbott Expert

Report at 2; Gov t Trial Exhibit DX619. In fact , the government's proposed findings do not ask
the Court to make any findings at all

regarding the actual removal schedule that DOE would

have followed in the "non-breach" world if DOE had commenced performance in 1998 and

otherwise performed as required by the contract with Yankee Atomic.
request any factual findings at all

Nor does the government

about the actual schedule that DOE will follow in the "breach"
s site. The

world , if and when DOE ever starts removing spent fuel from Yankee Atomic

government's experts do not offer opinions about DOE' s schedule in the breach or the nonbreach worlds , and these matters are also not addressed anywhere else in the government's

pretrial submissions. In short , the government's " assumptions

" about DOE' s spent fuel removal

schedule in both the breach and non- breach worlds - in Scenario 1 and in all the government'

alternate damages scenarios - are entirely fancifue
Second , the assumption in " Scenario 1" regarding DOE' s spent fuel removal schedule in

the "non- breach" world - that DOE " would have picked up spent fuel at the 1995 ACR rates rests on legal arguments that have already been rejected by the Court in its ruling denying the
government's partial summary judgment on the rate of acceptance issue.
These same legal

2 Both the 1995 ACR and the 1998 DOE TSLCC presume that individual fuel assemblies will be

picked up by DOE on the basis of " oldest fuel first." Thus , although unstated by the government' s experts Scenario 1" assumes - contrary to Yankee Atomic s pretrial submissions and evidence - that in the "non- breach" world , where DOE would be performing as intended beginning by 1998 , there would be no swaps , no shipping campaigns , and no other effort to develop an efficient spent fuel pickup schedule. See further discussion below at pp. 9- 12 in connection with " Scenario 5.

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arguments underlie the one and only " factual" finding the government does propose about
DOE' s spent fuel removal schedule in the "non- breach" world

, proposed government finding

number 171. That proposed finding, however, does not address the spent fuel removal schedule
that DOE actually

would have followed had it commenced spent fuel removal in 1998 and
, the government' s pretrial
, in proposed finding 171 , the

otherwise performed its contract obligations. As noted above

submissions disclose absolutely no position on that issue. Instead

government asks the Court to make a finding about the schedule that DOE is "
follow:

obligated" to

171. Pursuant to the terms of the Standard Contract , the only acceptance schedule under which the Government was obligated to perform if it had begun accepting SNF on January 31 , 1998 was the schedule established by approved delivery commitment schedules ("DCSs ), which mirrored rates contained in the 1995 Annual Capacity Report (" ACR" ) that ramped up to 900 MTU per year.
Gov t Amended Stipulation of Facts ~ 171.

But these very same assertions about DOE' s contract "
matter of law in Commonwealth Edison Co.

obligations " were rejected as a

United States

56 Fed. Cl. 652 (2003), the "well

reasoned ruling " that this Court has " adopted here.
Commonwealth Edison

See

Order of June 26 , 2003 at 2.
171 quoted

squarely held , contrary to the government' s proposed finding
did not create a contractually binding obligation

above , that "DCSs
ACR and DCS process

for either party" and "the
Commonwealth

does not

contain or create a SNF acceptance rate.

Edison

at 663 , 666 (emphasis added). There is no sense wasting time at trial on elaborate

damages evidence that rests on a legal position this Court has already rejected?

Commonwealth Edison

allocation in the ACR; exceeding the allocation will result in disapproval of the DCS(s). ",
Fed. Cl. at 665. The Court held that this "DOE (J position

. . . informed utilities that ' the total quantity of SNF designated for delivery must not exceed the

also noted that DOE' s

"'

Specific Instructions for Completion ofDCS'

" which is essentially identical to the

,"

,"

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Third

Scenario I" - and , indeed , each ofthe government' s four alternate scenarios, DOE will actually
s spent

depends upon assumptions about when , in the real or "breach" world

commence (and the schedule on which DOE will continue) removal of Yankee Atomic

fuel in the future. For example , each of the government's four alternate scenarios assumes that
DOE commences performance in 2010. See

Abbott Yankee Atomic Expert Report at 7- , 14in Scenario 1

17-

, and 55 (discussing or noting, respectively, assumed 2010 DOE start- date

, and 5). Once again , however, the government does not even ask the Court to make any such
factual finding. What the government does propose as a fact is that "DOE currently
plans

begin accepting waste. . . in 2010. . . . " Gov t Amended Proposed Stipulation 196 (emphasis

added). That mayor may not be true , but it is very different from asking the Court to find that
DOE will in/act

begin removing Yankee Atomic s spent fuel in 2010. Having not even asked

the Court to make that finding, the government should be precluded from offering evidence of
when DOE will begin removal of Yankee Atomic s spent fuelassumption of " Scenario
1

a necessary foundational

" and all the government's other alternate scenarios.
, and

More fundamentally, the question of when (if ever) DOE will perform in the future

if so on what schedule , has no proper place in this case. That question need not be considered

much less determined , in order to award Yankee Atomic the damages it is seeking here. Yankee
Atomic s "minimum damages " claim set out in its pretrial submissions does not involve any

projection of when DOE actually will perform. Rather, it rests on the government'

s own

government's assertion in its proposed finding 171 that DCSs "mirrored" the ACR inconsistent with plaintiffs justified expectation that ACRs were negotiable and to be used for planning purposes '" and " may be a breach ofthe defendant' s duty of good faith and fair dealing. " 56 Fed. Cl. at 656- 66. (emphasis added). (The 1995 ACR mentioned in the government's proposed finding 171 is materially identical , for present purposes , to DOE' s 1991 ACR discussed in Commonwealth Edison.

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acknowledgment of the earliest possible date for DOE to begin actual removal of Yankee
Atomic s spent fuel , 2010 , and on a subsequent schedule for completion of removal of that spent
fuel that is more rapid than is likely to obtain in the real world. See

Yankee Atomic 2003 Report

of Ken Wise at 4; Yankee Atomic s 2003 Proposed Findings of Fact ~ 173 & 180. Yankee

Atomic has thus structured its claim to avoid any consideration of DOE'

s actual spent fuel

removal schedule in the future , if any. Notably, the Court long ago agreed

, at an early discovery

hearing in this case , that the actual future removal schedule should not be an issue at trial:

COURT:
pick it up. "

As you see , I'm trying to avoid having a trial on when they are actually going to
5/4/1999 Hearing Transcript

at 25:20-

, copy attached as Exhibit 1

at 3.

Finally, it is worthwhile to observe that the substance of "

Scenario 1" is non-sensisical.

As quoted above , at p. 3 , the assumptions underlying this scenario create a hypothetical situation

where in the "non- breach" world , with DOE

performing

its contract obligations , Yankee

Atomic s spent fuel is assumed to remain on its site until 2024 , but in the "
DOE not

breach" world , with

performing (and possibly never performing), Yankee Atomic
earlier

s spent fuel is assumed to

be removed in 2020 - four years

than if DOE had in fact performed in accordance with

the contract. It is difficult to imagine , and indeed quite strange for the government to suggest
that this is the kind of "performance " by DOE that Congress had in mind when it enacted the
NWP A , or that the parties had in mind when they signed their contract.

At bottom , the assumptions underlying " Scenario 1" expose the government's
assumptions for what they are and reveal what they are not. These assumptions are simply the
products of the fertile imaginations ofthe government's counsel. See

5/10/04 Abbott Depo. Tr.

at 100:1- 107:1 , copy attached as Exhibit 2 at 7- 14 (government counsel provided the four
alternate scenarios; Abbott has no opinion whether any such scenario is reasonable); id.

at 11

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Tr. 104:2 (" I

don t know ifthey (the underlying "pickup dates and the rates

see id.

at 9

Tr. 102:5- 6)

are reasonable or unreasonable ). These assumptions are not anything the
propose

government can support factually, and the government does not even

that these

assumptions are factually-based.

4

Rather than wasting trial time on the government' s unalleged and unsupportable
scenarios , the parties and the Court should focus on what actually happened:

DOE has not begun

to remove any spent fuel for Yankee Atomic , and , as a result

, Yankee Atomic has incurred

enormous costs of storing the spent fuel on-site. Those facts are real

, not imaginary. Those facts
, accordingly, frame the

are properly alleged and backed by substantial evidence. Those facts

only damages " scenario " that is relevant in this case.
The Government' s " Scenario
Scenario 2" and " Scenario

Fact Or In The Government' s Proposed Findings of Fact.

2" and " Scenario

3" Likewise Have No Basis In

3" assume that DOE follows the same spent fuel acceptance
worlds , and for illustration purposes these scenarios

rate in both the "breach"

and "non-breach"

assume that in both worlds DOE follows the acceptance rate in the 1998 DOE TSLCC.

The

government then assumes that DOE starts removing spent fuel 12 years later in the " breach" world (1998 in the "non- breach" world and 2010 in the breach world).
at 14, 17.
See

Abbott Expert Report

The assumptions about DOE' s spent fuel removal schedule that underlie "

Scenario 2"

and " Scenario 3" are unfounded and unalleged. First , although each of these scenarios rest on
assumptions about DOE' s removal schedule in both the breach and non-

breach worlds , as noted

4 Mr. Johnson confirmed at his deposition this week that he also has no opinion regarding the

reasonableness of anyone of the government' s alternate scenarios , and that the assumptions underlying those scenarios were provided by government counsel.

g.,

,"

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above , the government does not propose any factual finding at all (or otherwise disclose any

position in its pretrial submissions) about the removal schedule DOE actually would follow in

either world. Second , and relatedly, the government also does not propose as a fact that DOE
would follow the same

schedule in both worlds. 5 But whether the actual future removal schedule

will differ from what would have happened if DOE had performed by 1998 is ultimately
irrelevant in this case , because , as also noted above , the actual damages claim that Yankee

Atomic has submitted can be addressed fully without speculating about DOE'
future.

s actions in the

Scenario 2" is fanciful for an additional reason: it assumes that Yankee Atomic

continues to store its spent fuel on-site in wet storage in its spent fuel pool in the real

breach"

world until 2010 or later. Abbott Expert Report at 16 (" Assuming. . . that (Yankee) had simply
stored its spent fuel in the spent fuel pool an additional 12 years. . . .
). That

assumption is not

only unfounded , it is

contrary

to the actual facts: Yankee Atomic s spent fuel pool is today
s spent fuel has already been

completely empty and is being dismantled; all of Yankee Atomic

transferred to dry storage. It makes no sense to waste trial time with evidence about a damages
scenario , like " Scenario 2 " that rests on an assumption that is not only unfounded but flat-out
wrong.

Scenario 5" Is Also Not Based On Any Finding Of Fact Proposed By The Government, Much Less On Any Actual Fact.
Central to " Scenario 5 " is that " exchanges of allocations are assumed to not occur in the
non- breach
world. "

Abbott Expert Report at 6. " Scenario 5" also assumes that DOE would

, there are substantial reasons to believe that DOE will not follow the same schedule if and when it actually beings removing spent fuel as it would have followed had it begun removal in 1998 as the contracts require. See, e. Expert Report of Frank C. Graves at 1619.

5 In fact

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remove utilities ' spent fuel at the 1998 DOE TSLCC rates in both the breach and nonworlds
id.

breach
196. The

at 55 , and that DOE starts to remove spent fuel beginning in 2010.
Id.

at n.

other significant assumption underlying " Scenario 5" is embedded in the 1998 DOE TSLCC which " assumes fuel is picked up from the sites with the oldest fuel first
, in accordance with the

(1995) Annual Capacity Report.... " 1998 DOE TSLCC (Gov t Trial Exhibit DX619), excerpt

attached as Exhibit 3 at 18. Scenario 5 assumes this " oldest fuel first" removal sequence in both
the breach and non-breach worlds.
See

Abbott Expert Report at 55.

The government's proposed findings do not ask the Court to find that any ofthese
assumptions underlying " Scenario 5" are true , or reasonable or consistent with the NWP A or the

intent of the contracting parties. With respect to the first assumption noted above
- that

exchanges of removal allocations would not occur in the "

non- breach" world - the government'

proposed findings do not ask the Court to make any such finding of fact. Indeed

, as discussed

previously, the government does not request any finding at all about the actual spent fuel
removal schedule that DOE would have followed , with or without exchanges
breach" world.

, in the "non-

What the government' s proposed findings do ask the Court to find

, with respect to

allocation exchanges , is that no such exchanges have occurred in the "
example , the government' s proposed finding 102 states "

breach" world. For

No purchaser, including the Yankee

plaintiffs , has entered into an agreement with another nuclear utility to exchange an approved

DCS or to exchange the allocations identified in any ACR or APR.
Yankee plaintiffs , has submitted any exchange requests to DOE for approval."

No purchaser, including the
See

Gov

proposed findings 149- 156b (noting Yankee Atomic

s attempts to arrange exchanges in the

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1990' , after DOE' s inability to meet the 1998 start date seemed clear). These proposed facts
may be true , but they are not a disputed issue in this case.

Both the "DOE schedule " and "DOE start- date " assumptions underlying "

Scenario 5" -

that DOE would remove spent fuel according to "the 1998 DOE TSLCC rates for DOE pickup (J
in both the breach and non-breach worlds " Abbott Expert Report at 55 , and that DOE would

commence spent fuel removal in 2010 - are likewise not the subject of any factual finding
proposed by the government , as discussed above in connection with the government'
hypothetical damages scenarios.
s other

The same is true regarding the final key assumption of Scenario 5 - that DOE'
schedule in both the breach and non-breach worlds would follow the "

s removal

oldest fuel first" sequence

set out in the1995 Annual Capacity Report. The government's proposed findings nowhere
request that the Court find as a fact that DOE actually would follow that schedule
non-breach" world or in the "breach" world. 7

, either in the

s damages claim is the fact that exchanges would have if DOE had commenced spent fuel removal beginning in 1998 and otherwise performed as the contract requires. On that issue , as Yankee Atomic proposed findings and evidence make amply clear - and the government' s proposed findings do not dispute - the exchanges that are provided for explicitly in the parties ' contract would have occurred in the non- breach world , and indeed would have been necessary in order " to ' effectuate the spirit and purpose ' of the entire contract." See Commonwealth Edison 56 Fed. Cl. at 662. 7 For DOE to actually remove spent fuel according to this oldest fuel first ranking would require
occurred in the "non- breach" world
DOE' s trucks and trains to make numerous visits to each utility site , sometimes only a year or two apart , to remove each time only that small fraction ofthe utilities ' spent fuel assemblies that happen to be the "next-oldest." That makes no sense , as Yankee Atomic s proposed findings and evidence demonstrate and the government s proposed findings of Rather, as fact do not dispute. Yankee Atomic s proposed findings and evidence also show , the oldest fuel first sequence mentioned in the contract is at most simply an initial allocation of removal priority, which , if DOE had commenced spent fuel removal in 1998 as the contract requires , would have been adjusted by the parties into a more efficient , campaignbased removal schedule. The government' s proposed findings do not even ask the Court to find that this description is untrue.

6 What is relevant to Yankee Atomic

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Like the other irrelevant damages scenarios discussed by Messrs. Abbott and Johnson
Scenario 5" appears to be nothing more than a creation of government counsel. See

5/10/04

Abbott Depo. Tr. at 100:

107:

, copy attached at Exhibit 2 at 7- 14. Absent proper disclosure in

the government's pretrial submissions that the government believes and can prove that the
assumptions underlying " Scenario 5" are true - and there has been no such disclosure evidence

regarding " Scenario 5" should also be precluded at trial.
The Government' s Position On Failed Fuel And GTCC Waste Multi lies The

Com lexit Of The Irrelevant Dama es Scenarios It Seeks To Present.
The government' s
four alternate damages scenarios actually represent twelve

different

scenarios , because in each of the four principal alternate scenarios , Messrs. Abbott and Johnson

also overlay the government's position that removal of " failed fuel" may be delayed , and
separately, the government' s position that removal ofGTCC waste is not required.
See

Abbott

Expert Report at 3 ("For each of the five scenarios described above (including " Scenario 4
which is Yankee Atomic s actual damages claim), I have evaluated what the effect on calculated

possible damages would be if in the breach and non-breach worlds prolonged storage of Greater

Than Class C Waste (GTCC) and/or other than standard fuel assemblies was required
independent of the pickup of standard fuel assemblies. ")
In these evaluations ,

Messrs. Abbott

and Johnson assume that Yankee Atomic s failed fuel and GTCC waste would not be removed
by DOE , but rather would have to be stored on-site by Yankee Atomic for an extended period.

Damages thus are purportedly reduced because Yankee Atomic is assumed to incur costs to store
failed fuel and GTCC waste even in the "non-breach" world where DOE is otherwise performing
its contract obligations.

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This approach literally heaps unfounded assumptions on top of unfounded assumptions.
First , both variations of each of the four principal scenarios (one variation addressing GTCC

waste and the other addressing both GTCC waste and failed fuel) rest on all the same alleged

assumptions that underlie the pertinent principal scenario. Second , each variation introduces
additional alleged assumptions. With respect to failed fuel , the government does not ask the

Court to find that even if DOE were otherwise performing its contract obligations , Yankee
Atomic would in fact

continue to possess failed fuel for an extended period. Instead , the

government asks the Court to find that " (e)ven if DOE fully performed pursuant to the Standard
Contract , (Yankee Atomic)
might

still possess failed fuel at its site for an indefinite amount of

time. " Gov t Amended Stipulation of Facts ~ 136 (emphasis added). This equivocation, which

does not even join the issue , traces back again to the government' s reliance on a legal position

the Court has already rejected , namely the government's assertion in proposed finding 119 that
DOE is not obligated

by the Standard Contract to dispose of Failed Fuel according to the same

schedule as Standard Fuel." Gov t Amended Stipulation ~ 119 (emphasis added). But as
discussed above
Commonwealth Edison

holds that the contract involved here does not

obligate " DOE to

any

specific removal schedule , 56 Fed. Cl. at 663 , and therefore the

government' s whole position on failed fuel is beside the point.

The issue is whether DOE , had it been performing the contract as required beginning in
1998 , would
in/act

have completed removal of Yankee Atomic s failed fuel at the same time as

it completed removal of the rest of Yankee Atomic s fuel. The government has disclosed no

position on that issue in its proposed findings of fact , and therefore should be precluded from

introducing evidence on the point. At a minimum , since the government advances its same "not
obligated" theory for failed fuel in the context of " Scenario 4 " which is Yankee Atomic s actual

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damages claim

see

Abbott Expert Report 49-

, the government should be required to litigate

the failed fuel issue i~ that context , rather than burdening the trial further with this same unfounded variation on each of its four principal irrelevant damages scenarios.
With respect to GTCC waste , the government' s proposed findings also fail to take any

position - or request any factual findings - on an ultimate issue. The government does allege
that " (t)he Standard Contract does not require DOE to accept or dispose of (Yankee AtomicJ's
GTCC. " Gov t Amended Stipulation ~ 138. That proposed finding joins one issue , because
Yankee Atomic contends that its contract does require DOE to remove spent fuel. See

Yankee

Atomic s 2003 Proposed Findings of Fact ~ 3. But the only other finding the government

proposes regarding removal of GTCC is the following: " ( e )ven if DOE fully performed the
Standard Contract , (Yankee Atomic) still would have been
obligated

to store its GTCC for an

indefinite amount of time.

Id.

(emphasis added) Initially, this case is about DOE' s obligations

not Yankee Atomic. Yankee Atomic is only " obligated" to store its GTCC waste , as the
government puts it, because DOE has failed to remove this waste - despite DOE' s undisputed

statutory obligation to do so. More fundamentally, the government never asks the Court to make
a finding, and ultimately takes no position regarding, whether, if DOE had otherwise been
performing the contract as intended beginning in 1998 , it would
in fact

have removed Yankee

Atomic s GTCC waste along with its spent fuel. Yankee Atomic has asked the Court to find as a

fact that DOE would have done so - it would have removed Yankee Atomic s GTCC waste
consistent with DOE' s undisputed statutory obligation.
See

Yankee Atomic s Proposed Findings

of Fact ~ 118c. Because the government does not meet or contest that proposed finding, the
government should be precluded from introducing evidence to contest Yankee Atomic

properly-alleged position at trial. Moreover, as with the failed fuel issue , at a minimum the

Case 1:98-cv-00126-JFM

Document 813

Filed 05/28/2004

Page 19 of 19

government should be required to litigate its position concerning GTCC waste in the context of

Scenario 4" - Yankee Atomic s actual damages claim - rather than multiplying the complexity
of the trial by superimposing the same off-point assertions regarding GTCC waste onto each of

the government's four unalleged and unfounded alternate damages " scenarios.
CONCLUSION

The damages trial in this case should focus on Yankee Atomic s actual damages claim
which is based on what has actually happened because of DOE' s breach of contract. Evidence

concerning other damages " scenarios " is irrelevant and also unfounded , as shown above.
Respectfully submitted

Dated: May 28 , 2004

s/Jerrv Stouck b s/Monica Freas JERRY STOUCK SPRIGGS & HOLLINGSWORTH 1350 I Street , N. Washington , D. c. 20005 (202) 898- 5800 (202) 682- 1639 (Fax)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:

Robert L. Shapiro SPRIGGS & HOLLINGSWORTH