Kansas Gas and Electric Co. v. United States

685 F.3d 1361, 42 Envtl. L. Rep. (Envtl. Law Inst.) 20152, 2012 WL 2854952, 2012 U.S. App. LEXIS 14305
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 12, 2012
Docket2011-5044, 2011-5045
StatusPublished
Cited by34 cases

This text of 685 F.3d 1361 (Kansas Gas and Electric Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kansas Gas and Electric Co. v. United States, 685 F.3d 1361, 42 Envtl. L. Rep. (Envtl. Law Inst.) 20152, 2012 WL 2854952, 2012 U.S. App. LEXIS 14305 (Fed. Cir. 2012).

Opinions

Opinion for the court filed by Chief Judge RADER.

Opinion dissenting-in-part filed by Circuit Judge LINN.

RADER, Chief Judge.

Kansas Gas and Electric Company (“KG & E”), Kansas City Power & Light Company (“KCPL”), and Kansas Electric Power Cooperative, Inc. (“KEPCO”) (collectively “the Kansas Companies”) suffered damages due to the Government’s partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive Waste (“Standard Contract”). In June 2010, the United States Court of Federal Claims conducted a nine-day trial and awarded the Kansas Companies $10,632,454.88.

In determining the amount of damages, the trial court correctly did not award damages for cost of capital and for the costs associated with researching alternative storage options for spent nuclear fuel (“SNF”) and high level radioactive waste (“HLW’). The trial court also appropriately reduced the Kansas Companies’ damages by the value of the benefit they received as a result of their mitigation activities. However, the trial court erred by not accepting the Kansas Companies’ reasonable method for calculating overhead costs. Therefore, this court affirms-in-part and reverses-in-part the trial court’s damages award.

I.

In 1988, Congress enacted the Nuclear Waste Policy Act of 1982 (“NWPA”). Pub. L. No. 97-425, 96 Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2006)). The NWPA authorized the Department of Energy (“DOE”) to enter into contracts for the collection and disposal of SNF and HWL. 42 U.S.C. § 10222(a)(1). The Standard Contract required the owners of SNF [1364]*1364and HLW to pay fees into the Nuclear Waste Fund, in exchange for which the DOE would begin to dispose of the SNF and HLW “not later than January 31, 1998.” 42 U.S.C. § 10222(a)(5)(B); 10 C.F.R. § 961.11 (2011).

On October 10,1984, the Kansas Companies entered into the Standard Contract with DOE. Kan. Gas & Elec. Co. v. United States, 95 Fed.Cl. 257, 260 (2010) (“KG & E ”). The Kansas Companies collectively own Wolf Creek Nuclear Operating Corp., which operates the Wolf Creek Generating Station (‘Wolf Creek”), a nuclear power plant located near Burlington, Kansas. Id. at 262. Wolf Creek’s nuclear reactor initially operated with 193 fuel assemblies. Id. When fuel assemblies no longer efficiently generate energy, the plant is refueled. The refueling process removes the spent fuel assemblies from the reactor core and places them into storage cells in racks located in Wolf Creek’s spent fuel pool. The parties refer to this storage option as “wet storage.” Id.

While Government performance should have begun in 1998, not all utilities would have expected recovery of their spent fuel at this time. See Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268, 1272-73 (Fed.Cir.2008) (explaining the role of the Standard Contract acceptance rate). In this case, the record shows that the Government’s first scheduled collection of Wolf Creek’s SNF would have been in 2006. KG & E, 95 Fed.Cl. at 260.

As early as 1993, the Kansas Companies anticipated they would need to pursue alternative storage options for Wolf Creek if DOE declined to accept spent fuel by 1998. Id. at 264. The Kansas Companies tasked Mr. Matthew K. Morris, the nuclear engineer responsible for administering the Standard Contract at Wolf Creek, with exploring options to create more available space in Wolf Creek’s spent fuel pool. Id. Wolf Creek’s Principal Engineer for Nuclear Fuels, Mr. Scott Ferguson, also researched additional storage options. Id. at 261, 296.

The Kansas Companies concluded their spent fuel storage study in 1995. The report evaluated six options: (1) plant operations/fuel design; (2) increased in-pool storage; (3) dry storage technologies; (4) shipment to private interim storage facilities; (5) shipment to a federal facility; and (6), combinations of the first five alternatives. Id. at 264. The report concluded that the best three options were reracking the storage pool, dry cask storage, or a combination of the two. Id. at 266.

The Kansas Companies ultimately decided to rerack the storage pool. Id. Under this option, they removed the existing racks from the pool, replaced them with higher density racks, and placed them closer together while still maintaining sufficient cooling flow. Id. The Kansas Companies installed the racks with the help of a contractor, Holtec International.

While conducting the rerack, the Kansas Companies both increased their storage capacity and used racks that could support higher enrichment fuel assemblies. Joint App. at 120; 311; 638-39. These higher enrichment fuel assemblies allowed Wolf Creek to achieve the same energy output from the reactor with fewer fuel assemblies. This reduced the number of assemblies purchased and discharged. Id. at 122. The rerack project was completed in the spring of 2000. KG & E, 95 Fed.Cl. at 268.

Of course, the Government did not proceed to collect and dispose of SNF and HLW on January 31,1998. This court has previously held that the Government thus partially breached the Standard Contract with the nuclear energy industry. See N. States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed.Cir.2000) and Me. Yankee Atomic Power Co. v. United [1365]*1365States, 225 F.3d 1336, 1343 (Fed.Cir.2000). Therefore, the trial court in this case focused on the quantum of damages owed to the Kansas Companies on account of the Government’s breach. The trial court found that even if the Government had not breached the Standard Contract, Wolf Creek would have run out of wet storage by 2005, “necessitating alternative storage measures.” Id. at 278. Thus, the trial court, in applying this court’s precedent in Yankee Atomic Power Co. v. United States, 536 F.3d 1268 (Fed.Cir.2008), required the Kansas Companies to both prove their damages and show what costs, if any, they would have experienced absent the breach. KG & E, 95 Fed.Cl. at 273-74, 277.

The Kansas Companies presented numerous alternative storage measures they would have pursued in the non-breach world. The trial court found that the Kansas Companies would have pursued a low-cost measure wherein Wolf Creek would receive credit for the soluble boron already present in the water in the spent fuel storage pool. Id. at 295-96. Boron is a neutron absorber that can control the reactivity of spent fuel, and the Nuclear Regulatory Commission had issued “criti-cality credit” to several utilities for the boron present in their pools. This credit would have allowed Wolf Creek to store fuel assemblies at a greater density, thus resolving its short-term storage issues.

The trial court also found that the Kansas Companies would have performed “a gate-drop analysis” in the non-breach world. Id.

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685 F.3d 1361, 42 Envtl. L. Rep. (Envtl. Law Inst.) 20152, 2012 WL 2854952, 2012 U.S. App. LEXIS 14305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-gas-and-electric-co-v-united-states-cafc-2012.