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

Case 1:98-cv-00488-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA ) ) Defendant. ) ________________________________________________) SACRAMENTO MUNICIPAL UTILITY DISTRICT,

No. 98-488C (Judge Braden)

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. Sacramento Municipal Utility District ("SMUD") is a municipal utility district

that owns Rancho Seco Nuclear Generating Station Unit 1, a nuclear-powered plant situated near Sacramento, California. Compl. ¶ 4.1 2. On June 14, 1983, SMUD entered into the "Standard Contract For Disposal Of

Spent Nuclear Fuel And/Or High-Level Radioactive Waste" with the Department of Energy ("DOE"). Compl. ¶ 23. 3. DOE did not begin accepting spent nuclear fuel ("SNF") and/or high-level

radioactive waste ("HLW") from SMUD under the Standard Contract by January 31, 1998. On June 9, 1998, SMUD filed a lawsuit against DOE alleging a breach of the Standard Contract.

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"Compl. ¶

" refers to the complaint filed in this action on June 9, 1998.

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4.

In paragraph 48 of its complaint in this action, SMUD contended that its "claims

in this action are for the amounts related to the government's failure to make timely performance. SMUD insists the Government meet its obligation to dispose of SMUD's SNF. If the Government further repudiates its obligations, and demonstrates an intention permanently to refuse to dispose of SMUD's SNF, SMUD reserves all rights to assert new and separate claims founded upon such action." (Emphasis added). 5. On March 26, 2004, SMUD provided the Government with its initial disclosures,

in which SMUD has asserted that it is entitled to recover damages "caused by the government's minimum twelve-year delay in performing under the contract, including, but not limited to, the costs of its dry storage system and Independent Spent Fuel Storage Installation ('ISFSI'), the labor and equipment costs related to the project, the costs of operating and maintaining ("O&M") the system during the government's delay, and the costs of decommissioning the system." See SMUD Initial Disclosures, dated March 26, 2004 (Appendix, at 1-5).2 6. In a letter dated April 16, 2004, counsel for SMUD provided the Government

with SMUD's "preliminary damages information" pursuant to the Court's scheduling order dated March 23, 2004 (Appendix 6-10). This information was divided into two spreadsheets. Id. The first reflected an estimate of past costs that SMUD claimed it incurred for its dry storage project as a result of the Government's breach of the Standard Contract. Id. The second spreadsheet reflected an estimate of annual Operating, Maintenance and Security ("OS&M") costs for

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

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SMUD's Independent Spent Fuel Installation ("ISFSI"), and indicated that SMUD expected to incur these costs "for at least the 12 years resulting from the government's breach." Id. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director /s Russell A. Shultis 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 VICTORIA L. STROHMEYER SCOTT R. DAMELIN JOSHUA E. GARDNER TODD J. COCHRAN Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 June 7, 2004

Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that, on this 7th 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/ Russell A. Shultis