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

Case 1:98-cv-00484-JPW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTHERN STATES POWER COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-484C (Senior Judge Wiese)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(d)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), the United States hereby asserts that the following material facts are uncontroverted: 1. The Kenrich report was submitted on August 1, 2005, and represents NSP's claim

for damages. Kenrich, Assessment of Damages ("Report") (August 1, 2005).1 2. The Kenrich report includes damages that allegedly were incurred each year from

1989 through 2004. 3. The Kenrich report "summarizes the quantification of damages resulting from the

Department of Energy's (`DOE') failure to perform its contractual obligation to remove spent nuclear fuel (`spent fuel') generated at Northern States Power's (`NSP') Prairie Island Nuclear Generating Plant (`Prairie Island') and Monticello Nuclear Generating Plant (`Monticello')." Report, at 1.

Plaintiff, Northern States Power Company ("NSP"), previously requested that this Court grant it leave to file the Kenrich report under seal, asserting that the report contains confidential information, and it filed that report with the Court on October 26, 2005 (Docket Entry No. 240). Because NSP has designated the report as confidential, we are not including the report in the appendix to our motion for summary judgment to avoid having to file the motion under seal. We respectfully request that the Court refer to the previously filed report in Docket Entry No. 240. Although, in our motion, we have quoted from portions of the report, we have not quoted or identified any confidential or proprietary information.

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4.

The Kenrich report represents NSP's alleged damages in both nominal dollars and

2005 dollars. Report, at 4. 5. In the Kenrich report, NSP's experts define nominal dollars as follows: "[t]he

term `nominal dollars' means the actual dollars spent or expected to be spent in each of the relevant years. Nominal dollars are unadjusted for the effects of financing (past) or the time value of money (future)." Report, at 4. 6. Throughout the Kenrich report, "past damages are restated in 2005 dollars by

applying NSP's after-tax weighted average cost of capital from the middle of each year in which damages were incurred through December 31, 2005." Report, at 5. 7. In the Kenrich report, Kenrich later clarifies that, in order to restate NSP's

damages into their present value, ". . . calculations were performed to take into account the time value of money for past and future damages, resulting in a measurement of NSP's damages in 2005 dollars." Report, at 14 (emphasis added). 8. NSP alleges $110 million in total damages calculated in nominal dollars ­ that is,

actual incurred costs. NSP's claim rises to $163 million in 2005 dollars. Report, at 15. 9. Mr. Kenneth P. Metcalfe, the President of The Kenrich Group, testified in his

deposition that NSP's damages were adjusted from nominal dollars to present value money in order to compensate for "the time value of money, all the components; and the weighted average cost of capital, which would include inflation, the fact that the utility has spent dollars that are not worth as much today, the normal time value of money, and the risks of the companies' overall risk in the general marketplace." App. 13, lines 1-7.2 When asked whether interest

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"App. __" refers to the appendix to our accompanying motion for summary judgment. -2-

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would compensate for the same type of things, Mr. Metcalfe testified, "I suppose at certain level of interest, depending on how high it was, it would compensate for the same type of things." App. 13, lines 10-12. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 s/ Heide L. Herrmann HEIDE L. HERRMANN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 305-3315 Fax: (202) 307-2503 Attorneys for Defendant

July 18, 2006

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CERTIFICATE OF FILING I hereby certify that on this 28th day of July 2006, a copy of foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT" 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.