Free Response to Motion - District Court of Federal Claims - federal

BSA

XMAX(19/19) v U.S Nos.: 98-126C, 98-154C, 98-474C August 2, 2004 Document 247-4 Filed 10/01/2004 3452 Page Page 1 of 10 standpoint a business as judgment that (1) A Yes,theydo. (1) froma business it does want commit accept not to to materials the at do (2) (2) Q Andwhat thosereports represent? of capability, if youwill, of our represent viewsandpositionsof the (3) amount the maximum (3) A Thay ability to receive those materials. (4} the M&O contractoron thoseissues. (4) Q Arethesereports deliverablesunder their (5) So, depending howthe Department on views (5) it to the from (6) how wants operate program a business (6) contract? if be (7} perspective, youwill, it could differentthan (7) A Yes, they are. (8) what total receiptrate and total capability the the (8) Q DoesDOE accept these reports as rate be (9) of the receipt would of ourfacilities. (9) deliverables? (10) QCouldthere be other constraints on the (10) A Yes,we acceptthem defiverables if as rate? (11) they- if webelieve theyappropriatety that (11) acceptance the of and (12) A Potentially there could be issuesassociated (12) addressed statement work the intention of we to we (13) with how want deployfacilities andhow want (13) the report,yes. process fuel. the of (14) to essentially (14) Q Are thosereports the statements DOE? rate? (15) QAre youfamiliar with the termramp-up (15) A No,they are noL (10) A Yes, I am. (16) Q By accepting report, doesDOE the acceptthe statedin the report? (17) Q Whatis ramp-uprate? (17) conclusions (18) A It's standard practice, when you're goingto (18) A No. nuclear wouldthese reports become reports the (19) start upanykindof facility, including (19) Q When I say a of (2o) facility, and would especially nuclear (20) or statements DOE? don'twant start outat a to A When either issued a document DOE underits (21) facility, that you (21) rate. don't want tax yourfacilities to (22) maximum You (22) own letterhead, it wouldhavean RW number, number it. Orif there was on some (23) to their maximum until youhada learning rate curve, (23) radioactivewaste (24) if you will. (24) policy statement made the Department some by in rate in (25) mechanism either throughcorrespondence other or (25) Sofhe ramp-up that wetypically had

Case 1:98-cv-00614-JFM Page3450

Yankee Atomic Electric

Page3451 (1) areas. (2) Q Thank you. Mr. Kouts,are you familiar with (3) the termreceiptrate? (4) A Yes,I am. is (5) Q What the receiptrate? A The receiptrate, as weuseit in the (6) (7) program, the technical is capability ourfacilities of to receivematerialsandprocess them through the (8) system. (9) (10) Q Areyoufamitiar with the termacceptance (11) rate? (12) A Yes,I am. rate? (13) Q Whatis the acceptance (14) A Theacceptance is the contractualrate rate has to (15) at whichthe Department committed receive materials fromthe contract holders. (16) (17) Q Where the acceptance is rate set forth? (18) A Theacceptance is set forth in the rate (lg) aoceptance priority rankingandthe Annual Capecity (20) Report. (21) QCouldthe receipt rate andthe acceptance (22) rate bedifferent? (23) A Yes,they could. (24) Q Why? (25) A Essentially, the Department determine can

Page3453 documents a step-by-step is (1) our technicalbaseline to us rate (2) approach try to work upto our maximum that allowus the ability to learnas wegoand to (3) would capability a in (4) bringoncapability additional fashionas opposed trying to do a maximum to (5) measured on (6) amount day one. QThank you. Mr. Kouls, are you familiar with (7) that was (8) the MRS DOE designingto be able to accept (9) wastein 1998? (10) A I'm familiarwith the various designs that (11) were beingconsidered that, yes. for (12) QWhat type of facility did DOE to build? plan (13) A That was barefuel handlingstorageonly a (14) facility that couldreceive materials from (15) transportation casks, youwill, from if utilities and (16) from utility sites, and storeif onsite byremoving (17) materials of those out casks,out of those transportation casks pottingthem and into various (18) storage devices. (19) QAnddo you know whatthe estimatedcost for (2o) (21) that facility was? (22) A Depending the type of storage technology on (23) to beused,the life cycle cost welookedat somewhere 1.7 (24) between and$2.7billion. QThank you. CanwehavePtaintiffs' Exhibit (25) ]]

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Yankee 1:98-cv-00614-JFM Nos.:98-126C, 247-4 98-474C August2,2004 Case Atomic Electric v U.S Document 98-154C, Filed 10/01/2004 Page 2 XMAX(20/20) of 10 Page3454 Page3456 as of (1) 254? (1} an understanding to whatthe source thoserates (2) MS.SULLIVAN: I approach, Your Honor? May (2) was? (3) THE COURT:Sure. Yes. (3) A Yes. (4) MS.SULLIVAN: Honor,wouldyou like Your (4) MR.STOUCK: Honor, can I interpose an Your for here.I don'tmean to (5) copy? (5) objection the record (6) THE COURT: can use this. t (6) interrupt unduly. Mr. Kouts disclosed the But was in (7) MS. SULLIVAN: Okay. (7) government's witness to testify about topics. list two (8) BYMS. SULLIVAN: I to a we (8) And just want make recordonthat. And can Q Mr, Kouts, what's beenput up on the screen later. (9) (9) dealwith the consequences Thefirst one, copyof has been marked as (10) andI providedyoua paper (1o) DOE's plansto beginwasteacceptance 2010.The in this (11) Plaintiffs' Exhibit254.Doyourecognize (11) second the fact that the Yucca was Mountain repository (12) document? (12) ia not beingdesigned acceptGTCC to waste. (13) A Yes, ldo. (13) SoI just wanted have to that onthe record. (1,~) Q Would explain to the Courtwhatthis you (14) And,again, wecandeal with questions aboutwhether (15) document is. (15) this is beyond once see it ties up. that we if you (16) A Thisis a, I believe,revision5 of our (16) MS. SULLIVAN: Would like meto address technicatrequirements document. (17) parentor our main (17} that, YourHonor? that (18) It's typicallya document the directorof the (18) THECOURT: you wish. If owns, it lays out the technical and (19) program (19) MS.SULLIVAN: shall I just continue? Or for to Honor, tablesspecificallyin this chartare the (20) requirements the program implement, (20) Your contain information (21) Q Anddoesthis document (21) the ones that Dr. Graves Mr. Graves or relied upon. to requirements the of (22) with regard the design (22) Mr, Kouts some has testimony believe is important. we (23) repository? I it raised Plaintiffs' case. in (23) So believe was (24) A Yes, it does. (24) And also, further questions make will clear (23) O Okay. How this document is usedby your it's tied in partto the 2010 date. (25)

8SA

Page3455 (1) o~ficein ils wasle acceptance function? (2) A Essentially, it givesus guidance in towould be. (3) termsof whetthe receipt rate of the system (4) It also givesvadous policy guidance the program to (5) as a whole. (6) Q ls your office responsible the for (7) preparation this document? of (8) A I - yes. I manage changes this. And to I (9) basicallydothat for the directorof the program. (lO) Q Couldwego to page15 of this document, Mr. (11) please. Kouts,areyoufamiliar with the (12) centralize~intedmstoragefac~itymentionedonthis (13) page? (14) A Yes,lain. (15) Q How youfamiliarwith that facility? are (16) A As I mentioned, when wentthroughmy I I responsible for (17} history within the program, was (18) developing design a centratized the of intedm storage met requirements. (19) facility that essentialty these type of facility did DOE to build plan (2o) Q W~at interimstorage facility? (21) as the centralized (22) A It wasa, essentially a canister handling ~.23)facilfy that couldmeet ram~-up identifie~ the rates (24) in - in table3 here. QOkay.Andthe rates in table 3, do you have (25)

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11} (r2) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25)

Page3457 THECOURT: Okay. Go forward. MS.SULLIVAN: Thankyou, Your Honor, BY MS. SULLIVAN: Q Mr. Kouts, what was- do you have an understanding the source the rates were what of for the facilities that were forth in this document? set A Yea. Q Andwhatwasyour understanding? A There were severalbil~e that werewinding their way throughCongress wouldhavedirected that the Department, shouldthey havebeenpassed, to deploy facility to essentia/ty a begin take fo materials utilities for storage from purposes. These ramp-up rates werebasically rates that were contained those in bills. Qi'm sorry. Let mejust clarify. You say bills werepending the DepartmenL you mean in Did bills pending Congress? in A Bills pendingin Congress. QAnddid you have an understanding to what as thelegislationcalledfor, generally? A The- the legislation wentthrough a varietyof mutations. initial form the The o# legislation was the Depadmentbuild a - an for to interimstorage facility or centralized interim

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(1) (2) (3) (4} (5) (6} (7) (8) (9) (10) (11} (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23)

Yankee Atomic

Electric

v U.S Nos.:

Document 247-4
(1) (2) (3) (4) (5)

98-126C,

98-154C,

Filed 10/01/2004 3460 Page 3 of 10 Page

98-474C

August

2,

2004

XMAX{21/21)

storage facility at, potentially in Nevada, to next wherethe YuccaMountain site is right now. Andthere werealso other options in termsof wherethat facility could be deployed. Q Howwas the centralized interim storage facility differant from the MRS designedby DOE the in early '80s - in the 1980sandearly '90s? A In the mid-'60s, we were looking at a facility that hada great deal more capabili~]. It wasone that basically had packaging capability that wouldessentially do some the packagingthat a of repository typically wouldhavedone. It also hadrod consolidation.It also had the flexibility ~o develop disposal-ready canisters for any of the three sites that weweraconsideringat

that time, whichwerethe basalt sita in Hartford, Washington, tuff site, t-u-f-f, volcanictuff sita the in Nevada, also the DeafSmith bedded and salt site in Texas. Q Was the facility, the centralized interim storage facility set fodh on this pageever constructed? A No, it wasnot. Q Whynot? (24) Thelegislation was never passedand the (25) A

A There have been various considerations on Capitol Hill as to initiatives that would use Homeland Security funds 1o essentially fund the reactorsto put their - the pool - the materials that they're now managing the pools, the high-level wastematerials, in (6) the spent fuel into dry storage casks, andundertake (7) that initiative. Q Mr. Kouts, are you familiar with the (8) (9) matarial knownas Greater ThanClass C radioactive (10) waste? (11) A Yes. (12) Q Do you understand that GTCC radioactive nuclear utilities? (13) wasteis generatedby commercial (14) A Yes. Q Is GTCC radioactive waste one of the waste (15) will accept pursuantto the (16) materials that DOE (17) standard contract? A No. (18) Q Is DOE designing the repository to accept (19) radioactive waste generated by commercial nuclear (20) GTCC (21) facilities? (22) A No, it is not. Q Could DOEaccept GTCC radioactive waste at (23) (24) the repository? (25) A Theoreticalty it could. It wouldrequire, I

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

Page 3459 Depadment never received any authorizations to proceed it. on Q Could there be a similar congressional initiative today that wouldallow or mandate acceptance spent nuclear fuel pdor to 2010? of A If Congress passedthat legislation, then the Department wouldbe authorized to implement it, yes. Q Are you aware of the spent nuclear fuel storage issue that arose in connection with the NRC's budgetlast year? A Yes, lam. Q And what was the initiative discussed in that budget submission? A I believe there was a set amountof funds that was supposed be distributed from the Nuclear to Regulatory Commission budget to the National Academy of Sciences, wherethey were to undertake a study to

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10} (11) (12) (13) (14) (16) (16) (17) (18) (19) (20) (21) (22) (23)

Page 3461 believe, a change legislation to allow less than in high-level wastematerials to go into the repository. In addition to that, we wouldhave to pedorm a variety of technicalanalyses and supplementour analysesthat weare currently planning for the Nuclear Regulatory Commission to how we would as dispose of those materials within YuccaMountain. in addilion to that, wewouldhaveto developsome kind of fee structure to payfor the additional costs associatedwith those matadals. Q Are there space limitation issues that DOE would haveto analyze if GTCC were to go to the repository? A Yes. Potentially there are. Q And are there issues concemthgthe current design of the sudace facilities at YuccaMountain that wouldhave to be analyzed? A Yes. Right now, our facilities are designed to deal with high-level wastematerials, spent fuel,

(11) (12) (13) (14) (15) (46) (17) (18) (19) look at the - the safe~y, youwill, of fuel that's if (20) currently stored in spent fuel pools, at reactors, and (21) also that's in dry storageat reactor sffes, andto (22) provide the Academy's views on the safety of both (23) [ypes of storage mechanisms. Q Do you have an understanding as to what (24) (25) initiatives couldresult fromthis study?

barespent fuel, if youwill. If weweregoingto handle Greater Than Class C waste, we would have to figure out howit wouldbe packaged, whereit wouldbe packaged,and probably require separate service (24) facilities over and abovewhatwe have now,since our only to handlethe (25) current facilities are designed

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XMAX(22/22)

Yankee Atomic Electric v U.S Nos.: 98-126C, 98-154C, 98-474C August 2, 2004 Page3462 Page3464 the waste materials. (1) will, of therepository. (1) materials, high-level as not the (2) Let mealso addwe're[n the planning on (2) And such, wewould wantto reduce of facilities In order dealwith to (3) backfillingthe repository. Essentially we're what (3) capacifies those materials. (4) doingis placingthe waste packages. We're not (4) otherwaste QCould DOE place GTCC the backfill spaces in (5) filling upthe repository anykindof materials. with (6) theorized the pastwewould in take (6) of the repository? (6) It's been Can (7) pulverized or volcanic tuff materials backfill it. and (7) MR. STOUCK: we watch theleading We're planning doing not on that. That'snot part of here onthis, YourHonor? Therehavebean a (8) questions seriesof leadingquestions aboutthis GTCC issue, and (9) the currentplanto demonstrate the Nuclear to (9) I object that basis. on Regulatory Commission this site canisolate that (10) COURT: Well, you could rephrase. (11) material. (11) THE MS. SULLIVAN:Okay. (12) So thereisn't a 1of of space thedrifts in (12) to addadditional materials.Somysense what is (13) BY MS. SULLIVAN: (13) QMr. Kouts,when usethe termbackfill I (14) would have happen there would additional to is be (14) do whatI'm talking about? (15) drifts or tunnels would to bedrilled out that have (15) spaces, youknow (16) where thesematerialswouldbeplaced. (16) A Yes. (17) THE COURT: Whatif you would packagethe (173 Q Couldthosebeskfitl spacesMS.SULLIVAN: don't understand t quite how (18) GTCC exactlythe same in type of container that the (18) this is leading. is a d)reotqaesfion, This whether fuel assemblies put in? are (19) (19) in WITNESS: could de that. I would We (20) or net theycouldplaceGTCC the backfill spaces, i (20) THE Would like me try to rephrase, you to YourHonor? also indicatethat eachof the waste packages costs (21) (21) roughly about a million dollars.That'sa very half (22) MR.STOUCK: explain whyit's leading, I can (22) She if in j (23) expensive package low-levelwaste for materials. (23) YourHonor. asked they could put GTCC the repository.And said no. Thatwould he havebeen the (24) i (24) There might more be efficient, more effective ways to (25) placeto mention not, rather than have why counsel (25) dothat. But I think when analyze in our we this

Page3463 (1) leadhimto the explanation. MS. SULLIVAN: He's provided some reasons. (2) (3) I think there aresome otherreasons, I'm helping and (4) him~ THE COURT: record reflects that- you The (5) (6} may answer question. the I'll overrule objection. the (7) MS. SULLIVAN: Thankyou, Your Honor. THE WITNESS: Okay. As simplistically - my (8) is, of (9) sense frommyunderstanding what'sin Greater ClassC low-levelwaste, don't think wecould I (10) Than put matedals backfill or in in (11) just simply these (12} vadous spaces the drifts, ff youwill, the in tunnels,if youwill, in the repository, (13} underground kind of packaging assurance and that (14} without some (15) these materials would get out so that it would not the (16) affect ourability to meet verystringentEPA (17) standards. I to the (16) Sowhat atluded earlier was tact to to (19) that wedo have doa variety of analytical work (20) determine best thesematerialswouldhaveto how (21) would pissed the repostlory,whattheywouldbe be in (22) placed what in, kind of canisters,what typeof waste they without that (23) packages wouldbein. And delatlwork, dgficultat this time it's to (24) additional or (25) saywhether not theycouldgoin backfill, if you

(1) (2) (3) (4) (5) (6) (7) (8) (10) (11) (12) (13) (14) (15) (la) (17) (18) (19) (20) (21) (22} t23) (24)

Page3465 environmental impactstatements, wehadto look at as reasonably foreseeable atlemafives,whatwedid analyze essentiallytakethesematerialsandput and themtn thesepackages evaluatethemas padof and the EISprocess. That was option wetook because was the it expedient, wedidn't want expend additional and to any analyficalwork.It was kind of anouterbound of whatwemightdo. THE COURT: Wouldthat solve the fee problem too, because could chargethe same as SNF? you fee THE WITNESS: might help with the fee. That We wouldhaveto look at, you know,whatamount new of drifts, if youwill, new tunnels would caused be by this. There were- in the EIS,as 1 remember, there wereroughly2,000cubicmeters thesematerials of that were identifiedin the EIS.You translatethat to cubicyards. That'sroughlyabout2600 cubic yards.Sothat's goingto be quite a fewwaste packages quite a fewdrifts that youwoutd and have to develop, youwill, in order put these if to materials inthere. THECOURT: Okay. Ms. Sullivan. MS. SULLIVAN: Thankyou, Your Honor.

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Office of Civilian Radioactive Waste Management

Civilian Radioactive Waste Management System Requirements Document Revision 05 oooooooo-oos11, ) l zos-oooo3

January 1999
U, S. Departmentof Energy Office of Civilian Radioactive WaateManagement

15

HQO.199901

I!

PLAINTIFF'S EXHIBIT

P02~

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Title: Civilian Racl~oactiveW~ Management System Rc~uircmen~ Document DI:A00000000-00811-1708-00003 REV05

Page: 14

W~ Acceptanc~ Transportation shall and Element accomplish planning scheduling and according to the provisions of the Standard Conuuct(10 CFR Part 961) and the EM/RW and NNPP/RW MOAa. Integrated forCRWMS plans activities be developed ulxiaw.d ne.edeA shall and ~s to respond changed andoperating to data conditions. Planning involves .l]ocating system "capacity, evaluating schedule requests, establishing CRWMS and the operations schedule. forms K. Recordsvalidation shall be initia~ed uponrez.eipt of Puzchaser/Producer/Custodian describing the SNF/HLW be delivered. ~o L WasteAccc'ptancc Transportationahall validamtitle and/or mmsfm" responsibility and of and custody documentationfrom the Purchasem/Producem/Custodians.

3.4 MGR ELEMENT REQUIREMENTS This section contains the requiremen~ allocated to the MGR Elerrmnt. TheMGRshall de.signedbecapable accommodating be to of the total inventorySNF of and HLW documentedin Planning Consideration 2.4.C) consistent with ctm-cnt (as disposal concepts (e.g., I-ft.,W/DOE SNFco-disposal). However,until the second repository is approvedthe MGR operational capacity shall be limimdto 70.000 M'TH2~ or equivalent of SNFand HLW. B. The waste packages bedesigned that shall such substantially containment complete ofthe wast~ bedemonstrated least years. can for at 1,000 Themonitoredgeologic repository concept shall allow the repository to be closed as early as I0 years afar emplacement the last waste packageor to be kept open for at of least 100 years frominitiation of wasm emplacement. design shall not preclude the The ability to ke~pthe repository open, with appropriate maintenance monitoring,for 300 and years after initiation of waste emplacement. Future generations will make ultimate the de, cision on whether is appropriateto continueto maintainthe repository in an open, it monitored condition or to close the repository, breed on development their own of criteria andlevel of certainty regardingultimate repository performance. 3.5 CISF ELElVI~A~Ff REQUIREMENTS If a CISF approved,the followingallocated requirements is shall be met. A. The CISFshall be de.signed to cxpedit~ operations by using a ph~.~Aapproach with Phase 1 having the capability toreceive and storg licensed dual purpose and multipurpose systerm only and Phase 2 having the capability to r~zeivc and stor~ SNFin licensed dual purposeand multi-purpose systemsand as individual a.memblies the rates at indicatedin Table3.

HQO.19990112.0001.0025

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Title: Civilian Radioactive WasmManagement System Requirements Document DI: A~811-I708-.00003 REV 05 ~ Tab,to3, CISFReceiptRalos (in MTHM Equivalent/Year) or Phase I ! II II I1 Yesr o! Operation t 2 3a~d4 5 TBD 2 = Commercial SNF 120o 1200 27OO

Page:

Government Managed NucJear Materials TBD3 TBD 3 T~D4 TBD4 TBD4 TBD4

B. "Fne CISF shall have a minimumstorage capacity of 10.000 MTHM SNF. of C. TheCISFshall havea I'~Wstorage capacity (TBD of D. The CISF shall be capable of preparing SNFand HLW off-site for 3.6 INTERFACE REQUIREMENTS transport.

This section identifies the interface requirements between CRWMS system elements. Aceeptmace criteria for nucle2a- materials are documented in the Wast¢ Acceptance System Requi~ments Document (WA-SRD)(DOE/RW-035 IP). 3.6.1 Wa.~te Acceptance and Transportation Requirements - Government Agency Interface

WasteAcceptance and Transportation shall interface with appropriate federal, state, tribal, and local governmentagencies to meet legal, regulato~ and operational reqLtimmentsfor =mceptance and mansportation of SNF and HLW,such as route selection, approval, scheduling and notification, emergencyplanning and response, and security.

HQO.19990112.0001.0026

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10ST}{CONGRESS 1 I ~EPORT ist Session j HOUSE REPRESENTATIVES| i08-212 OF

ENERGY AND WATER DEVELOPMENT APPROPRLATIONS BILL, 2004

Mr. HO~SON, from the Committee on Appropriations, submitted the following

REPORT
The Committee on Appropriations submits the following report in explanation of the accompanyinghill making appropriations for energy and water development Fro- the fiscal year ending September 30, 2004, and for other purposes.

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130 DOEheadquarters, $7,774,000 for Technical Information Management; and $1,020,000 for Energy Research/knalyses. The request for program direction for field offices was reduced by $3,720,000 and the amount transferred to the Safeguards and Sccurlty line. The control level ['or fiscal year 2004 is at the program account level of Science ProgramDirection.
FLrND ING ADJUSTMENTS

The Committee recommendation includes an offset of $4,383,000 ['or the safeguards and security charge for reimbursable ~vork, as proposed in the budget request. A general reduction of $1,000,000 has been applied to the Science account..
~'UCLEA~ WASTE DISPOSAL $1,~4,050,000 16],000,000 Approprlat~on. ............................................................... 2003 i ............ BudgetE~tlmate. 2004................ : ......................................................

The Federal government has a clear statutory responsibility, assigned by Congress in the Nuclear Waste Policy Act el" 1952, as amended,to provide [.or the per,n.mnent disposal el" spent nuclear ['ueI and high-Ievel radioactive ~asto. The Department of Energy was required by statute to accept commercial spent nuclear ['ue] for disposal beginning on January 31, 1998, and entered into legally en['orceable contracts with utilities to execute that obligation. Unfortunately, the Department has been unable to meet that deadline, resulting in a number of lawsuits over tbe Department's failure to meet its statutory and contractual obligation and a growing financial liability over tha~ fal]ure. The Court of Federal Claims has t'ound the Departmentto be in breach of its contractual obligations and is proceeding to determine the extent of damages. The primary consequence of the Department's failure to begin cept]ng spent nuclear fuel is not, however, the existence o.r.lawsuits and damage claims; it is that vast quantities of' commercial spent nuclear fuel remain in temporary storage at reactor sites scattered around the country, many Iocated near major population centers. The Committee is not questioning the current safety and security of spent nuclear fuel stored at commercial sites in accordance with Nuclear Regulatory Commission criteria. The Committee does, however, believe that the safety and security of these materials w~ll be enhanced the sooner they are placed in the underground repository at Yucca ivlountaim After the events of September 11, 2001, the Committee believes it is more essential than ever to move aggressively to get the YuccaiVlounLalnrepository licensed, built, and operating at the earliest possible date. Chronic funding shortfalls, how.ever, have starved the program of the resources necess,ary to keep the repository program on schedule. The Department s latest schedule calls for opening the repository and beginning to accept spent fuel in 2010 at the earliest, over 12 years behind schedule. Most recently, the Department requested a totaI of $591,000,000 for the nuclear waste disposal program in fiscal year 2003, yet received only $457,000,000, a funding shortfall

19

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-249-C

(Filed: August 12, 2004)

TENNESSEE VALLEY AUTHORITY,

Plaintiff,

UNITED STATES, Defendant.

ORDER The govermnent'smotion for reconsideration, filed on August 10, 2004, respecting this Court's decision reported at 60 Fed. CI. 665 (2004), proceeds on erroneous premises. First, contrary to the guvemment's motion, the Court made1~o "finding that TVA could receive damagesbeginning in 1995." Def.'s Mot. at 12. Rather, the Court explicitly found that "DOE breachedits obligation to act on TVA's DCSs goodfaith," 60 Fed. CI. at 674, and that initially in occurred in 1997. Second, causation is an element of proof regarding damages, and the Court specifically denied TVA'smotion for summary judgment respecting damages. See 60 Fed. C1. at 675-76. Defendant's motion for reconsideration is denied. It is so ORDERED.

s/Charles F. Lettow Charles F. Lettow Judge

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