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

Case 1:98-cv-00621-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMONWEALTH EDISON COMPANY and EXELON GENERATION COMPANY, LLC, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

Nos. 98-621C, 04-103C (Judge Hewitt)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFF'S RECOVERY OF FUTURE OR PROSPECTIVE DAMAGES Pursuant to Rule 56(h) of the Rules of this Court, defendant, the United States, respectfully submits the following proposed findings of uncontroverted fact in support of its motion for partial summary judgment regarding plaintiff's recovery of future or prospective damages: 1. Commonwealth Edison Company is an electric utility that owns several nuclear

electricity generating facilities. Compl. ¶¶ 3, 4.1 2. On or about June 29, 1983, Commonwealth Edison Company entered into the

"Standard Contract For Disposal Of Spent Nuclear Fuel And/Or High-Level Radioactive Waste" with the Department of Energy ("DOE"). Compl. ¶ 12. 3. In its decision in this case dated June 10, 2003, this Court held that "[t]he NWPA

required that all contracts 'shall provide that' [DOE] will dispose of the [spent nuclear fuel ('SNF') and/or high-level radioactive waste ('HLW')] 'beginning not later than January 31, 1998'" and that "DOE implemented the [NWPA] by promulgating the Standard Contract for Disposal of

1

"Compl. ¶

" refers to the complaint filed in this action on July 30, 1998.

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Spent Nuclear Fuel (Standard Contract)." Opinion, at 3 (June 10, 2003) (citing 10 C.F.R. § 961.11 (1983) and 42 U.S.C. § 10222(a)(5)(B)). 4. DOE did not begin accepting SNF and/or HLW from Commonwealth Edison

Company or the other Standard Contract holders under the Standard Contract by January 31, 1998. 5. In paragraph 36 of its original complaint in this action, Commonwealth Edison

Company alleged that, by failing to begin SNF and/or HLW acceptance by January 31, 1998, the Government had partially breached the Standard Contract. Subsequently, on or about April 26, 1999, Commonwealth Edison Company filed a motion for partial summary judgment, seeking summary judgment upon the Government's liability for a partial breach of contract. By order dated August 1, 2001, the Court granted that motion. Commonwealth Edison Company did not allege and has not alleged the existence of a total breach of contract. 6. After this Court's June 10, 2003 decision, Commonwealth Edison Company

provided the Government with its initial disclosures, in which Commonwealth Edison Company has asserted that it is entitled to recover (1) costs that it has incurred in the past allegedly resulting from DOE's delay in beginning SNF and/or HLW acceptance and (2) costs that Commonwealth Edison Company anticipates it will incur at some point in the future allegedly because of DOE's SNF acceptance delays. See Commonwealth Edison Company Amended Disclosures, dated December 23, 2002 (Appendix, at 2-11).2 The large majority of

Because Commonwealth Edison Company has designated the document contained in the appendix as protected material, we will file the appendix under seal, separately from this electronic filing. -2-

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Commonwealth Edison Company's claimed damages are future damages that have not yet been incurred. See id. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503

OF COUNSEL: JANE K. TAYLOR Office of General Counsel Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 SHARON A. SNYDER STEPHEN FINN SONIA ORFIELD Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 June 2, 2004

Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that, on this 2nd day of June 2004, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFF'S RECOVERY OF FUTURE OR PROSPECTIVE DAMAGES" 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/ Harold D. Lester, Jr.