Northstar Vermont Yankee, LLC v. United States

• Court: United States Court of Federal Claims
• Decided: April 21, 2022
• Docket: 18-1209
• Status: Published

Opinion

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) NORTHSTAR VERMONT YANKEE, LLC, ) ) Plaintiff, ) No. 18-1209C ) v. ) Filed: April 6, 2022 ) Reissued: April 21, 2022 1 THE UNITED STATES, ) ) Defendant. ) ______________________________________ )

OPINION AND ORDER

This is the third round of litigation related to the Department of Energy’s (“DOE”)

continuing breach of its contractual obligation to accept spent nuclear fuel (“SNF”) from the

Vermont Yankee Nuclear Power Station (“VYNPS”) and store it permanently in a government-

operated repository. Plaintiff NorthStar Vermont Yankee, LLC ultimately was awarded

$40,739,217 in damages (plus $46,545.47 in statutory costs) in the first round of litigation, which

covered the period prior to April 30, 2008. 2 See Entergy Nuclear Vt. Yankee, LLC v. United States,

No. 03-2663C (Fed. Cl. filed Nov. 12, 2003). In the second round of litigation, the parties

stipulated to an award of $19,144,174 in damages for the period of May 1, 2008, through December

31, 2013. See Entergy Nuclear Vt. Yankee, LLC v. United States, No. 14-343C (Fed. Cl. filed

1 The Court issued this opinion under seal and directed the parties to confer and propose any redactions by April 18, 2022. Because the parties did not propose any redactions, the Court reissues this opinion in full. 2 In the prior litigation, Plaintiff was identified as Entergy Nuclear Vermont Yankee, LLC. Pursuant to a transaction that closed on January 11, 2019, the ownership and name of Plaintiff, as well as the holder of the Standard Contract, changed to NorthStar Vermont Yankee, LLC. Def.’s App. 43, ECF No. 46-1. April 24, 2014). Plaintiff seeks $191,471,150 in this action for costs incurred for the period of

January 1, 2014, through December 31, 2018.

Before the Court is Plaintiff’s Motion for Partial Summary Judgment and Entry of Partial

Final Judgment, as well as Defendant’s Motion for Partial Summary Judgment. The parties’

motions raise a variety of issues, some of which are overlapping, including (i) Plaintiff’s

entitlement to judgment and entry of partial final judgment on the undisputed portion of its

damages claim, (ii) whether Plaintiff should be judicially estopped from asserting certain

acceptance allocation figures that differ from the figures asserted in round one, (iii) questions of

contract interpretation regarding disposal of short-cooled fuel and regarding the requirements for

exchanges, and (iv) whether Plaintiff can recover payments it made to the town of Vernon,

Vermont, and pre-2017 site security costs. For the reasons that follow, the Court GRANTS IN

PART and DENIES IN PART both motions.

BACKGROUND

I. Factual Background

Through the enactment of the Nuclear Waste Policy Act of 1982, Pub. L. 97-425, 96 Stat.

2201 (1982) (codified at 42 U.S.C. §§ 10101–10270), Congress created a SNF disposal program

that required DOE and domestic nuclear utilities to enter into a Contract for Disposal of Spent

Nuclear Fuel and/or High-Level Radioactive Waste (“Standard Contract”). Energy Nuclear Vt.

Yankee, LLC v. United States (“ENVY”), 95 Fed. Cl. 160, 169 (2010). This contract provides for

DOE’s acceptance and disposal of the utilities’ SNF, beginning no later than January 31, 1998, in

2 exchange for the utilities’ payment of fees into the Nuclear Waste Fund established to support the

disposal activities. Id.; see Def.’s App. (“DA”) 107, ECF No. 46-1. 3

The Standard Contract does not establish a specific schedule or rate by which DOE is

obligated to accept and dispose of SNF. Instead, for planning purposes, DOE was required by the

contract to release an annual capacity report setting forth the projected annual receiving capacity

for the first 10 years of operation at the planned DOE repository and an annual acceptance priority

ranking (“APR”) establishing the order in which it would collect SNF from the facilities beginning

with the oldest discharged fuel. ENVY, 95 Fed. Cl. at 170; see DA 111. DOE and the utilities

would then use the delivery schedule procedures provided in the Standard Contract to agree to a

schedule for each facility’s delivery of SNF to DOE. DA 111–12. Under those procedures, the

utilities must furnish to DOE a delivery commitment schedule (“DCS”), which identifies all SNF

a utility wants to deliver to DOE beginning 63 months thereafter. DA 112. The Standard Contract

allows DOE the discretion to approve or disapprove the submitted DCSs as well as revised

schedules (if they are initially denied) within three months of receipt. Id. A similar process is

used to agree upon a final delivery schedule, which must be submitted to DOE at least 12 months

prior to the delivery date. DA 112–13. In the event that DCSs for SNF (and/or high-level waste

(“HLW”)) require the disposal of material beyond the annual capacity of DOE’s disposal

repository, DOE will follow an acceptance priority based on the age of the discharged fuel. DA

115–16. This scheme became known as “oldest fuel first” (“OFF”). 4 ENVY, 95 Fed. Cl. at 170.

3 For ease of reference, this opinion refers to the bates-numbered pages of Defendant’s Appendix, rather than the ECF page number. 4 A utility is not required by the contract to actually deliver its SNF to the DOE in an oldest- fuel-first order. The OFF priority ranking merely assigns a utility a place in the queue. It can then use its allocation to deliver any fuel that meets the criteria of the Standard Contract. See DA 115– 16; see also Yankee Atomic Power Co. v. United States, 94 Fed. Cl. 677, 695–96 (2010), aff’d in part, rev’d in part, 679 F.3d 1354 (Fed. Cir. 2012). 3 The Standard Contract also allows utilities to exchange approved DCSs. DA 113.

According to the contract terms, DOE retains the right to approve or disapprove, in its sole

discretion, an exchange request. Id. A utility wanting to exchange an approved DCS must submit

such request to DOE, identifying the priority rankings of the utilities intending to engage in the

exchange. DA 114. DOE then has 30 days to approve or disapprove of the proposed exchange,

advising the requesting utility of the reasons for disapproval in the event DOE exercises its

discretion to deny the request. Id.

As the parties well know, DOE did not begin accepting SNF in January 1998. The United

States Court of Appeals for the Federal Circuit later determined that DOE’s delay in accepting and

disposing of SNF constituted a breach of the Standard Contract. See Ind. Mich. Power Co. v.

United States, 422 F.3d 1369, 1374 (Fed. Cir. 2005). The Court held that the delay qualified only

as a partial breach based on the agency’s stated intent to perform under the terms of the Standard

Contract in the future. Id. at 1376–77. Pursuant to that decision, utilities that are damaged by

DOE’s delayed performance are required to submit damages claims every six years and may not

seek future damages. Id. at 1376–78.

Unsurprisingly, litigation has ensued over what damages are properly recoverable in SNF

cases. For purposes of calculating damages under the OFF rubric of the Standard Contract, the

Federal Circuit established a minimum acceptance rate based on a report DOE submitted to

Congress in 1987, dictating the minimum amount of SNF that otherwise would have been accepted

by DOE but for the agency’s delay. Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1292

(Fed. Cir. 2008) (finding the 1987 report “provides the best available pre-breach snapshot of both

parties’ intentions for an acceptance rate”). The Court subsequently approved another damages

model based on utilities’ hypothetical participation in the exchange of acceptance allocations—

4 i.e., “the exchanges market.” See, e.g., Dairyland Power Coop. v. United States, 645 F.3d 1363,

1369 (Fed. Cir. 2011). Under this theory, utilities have argued that in the “but-for world” where

DOE began accepting SNF in 1998, as obligated by the contract, an exchanges market would have

existed where utilities with later approved DCSs would bargain with utilities holding earlier DCSs

to remove SNF from their facilities in a more expedited fashion than would be permitted under the

OFF scheme. Id.

On June 10, 1983, Vermont Yankee Nuclear Power Corp., Plaintiff’s predecessor, entered

into the Standard Contract with DOE under which DOE agreed to accept and deliver SNF from

VYNPS. See DA 102; ENVY, 95 Fed. Cl. at 167. VYNPS is a single unit boiling water reactor

site located in Vernon, Vermont. DA 44. Since DOE’s breach of the Standard Contract, Plaintiff

has relied on both wet pool and dry rack storage (referred to as the Independent Spent Fuel Storage

Installation “ISFSI”) at VYNPS to store SNF that otherwise should have been accepted and

disposed of by DOE but for the breach. DA 44–46; see ENVY, 95 Fed. Cl. at 174–75. In August

2013, Plaintiff publicly announced the closure of VYNPS and permanently ceased power

operations in December 2014. DA 44. As a result, Plaintiff began offloading SNF assemblies

from the reactor core into the spent fuel pool beginning in January 2015. Id. By August 1, 2018,

Plaintiff removed the last of the SNF at the facility from the spent fuel pool and loaded the SNF

into storage cannisters which were placed on the ISFSI. DA 45.

II. Procedural Background

On September 10, 2021, both parties filed motions for partial summary judgment. See Pl.’s

Mot. for Partial Summ. J. and Entry of Partial Final J., ECF No. 45; Def.’s Mot. for Partial Summ.

J., ECF No. 46. Plaintiff requests partial summary judgment with respect to: (1) DOE’s obligation

to accept “short cooled fuel”—i.e., fuel cooled for less than five years—as specified by the terms

5 of the Standard Contract, and (2) the undisputed portion of Plaintiff’s claimed damages. See

generally ECF No. 45; Pl.’s Reply, ECF No. 49. Plaintiff also requests that the Court enter final

partial judgment in the amount of the undisputed damages pursuant to Rule 54(b) of the Rules of

the United States Court of Federal Claims (“RCFC”). See ECF No. 45 at 13–18.

Conversely, Defendant seeks partial summary judgment with respect to: (1) whether the

Court should apply the judicial estoppel doctrine to preclude Plaintiff from asserting different

acceptance allocation figures for the period of 1998–2008 under its current exchanges-based model

than were asserted in round one using the OFF scheme, (2) the Standard Contract’s requirements

that fuel be cooled a minimum of five years before it can be delivered and that only approved

DCSs are eligible for exchange, and (3) whether Plaintiff can recover payments made by Plaintiff

to the town of Vernon and pre-2017 site security costs it allocated to mitigation efforts. See

generally ECF No. 46; Def.’s Reply, ECF No. 50.

DISCUSSION

I. Standard of Review

Summary judgment is warranted when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). A

fact is material when it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A dispute is genuine, thus necessitating a trial, when a finder of fact

may resolve factual issues in favor of either party. Id. at 250.

“When deciding a summary judgment motion, all of the nonmovant’s evidence is to be

credited, and all justifiable inferences are drawn in the nonmovant’s favor.” Ruiz v. A.B. Chance

Co., 234 F.3d 654, 671 (Fed. Cir. 2000) (citing Anderson, 477 U.S. at 255); see Dairyland Power

Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994). Where “the evidence is such that a

6 reasonable jury could return a verdict for the nonmoving party,” summary judgment is not

appropriate. Anderson, 477 U.S. at 248. “With respect to cross-motions for summary judgment,

each motion is evaluated on its own merits and reasonable inferences are resolved against the party

whose motion is being considered.” Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962,

968–69 (Fed. Cir. 2009) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391

(Fed. Cir. 1987)). The moving party bears the burden of proving the absence of a genuine dispute

of material fact but “may discharge its burden by showing the court that there is an absence of

evidence to support the nonmoving party’s case.” Dairyland Power, 16 F.3d at 1202 (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

II. Plaintiff Is Entitled to Partial Summary Judgment for the Undisputed Portion of Its Damages Claim but Not Entry of Partial Final Judgment.

Plaintiff seeks both summary judgment and entry of partial final judgment as to the

undisputed portion of its damages claim, which amounts to $135,892,413. See ECF No. 45 at 12–

13; ECF No. 49 at 5. In its opposition brief, Defendant acknowledges that it does not contest

Plaintiff’s entitlement to this portion of its total claimed damages resulting from DOE’s breach of

the Standard Contract. 5 Def.’s Resp. to Pl.’s Mot. at 6 n.1, ECF No. 48; see Ind. Mich. Power,

422 F.3d at 1373 (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed. Cir.

2002) (plaintiff may recover damages in a breach of contract action that are reasonably foreseeable

at the time of contracting, caused by the breach, and shown with reasonable certainty). Based on

5 Plaintiff initially identified $135,034,217 as the undisputed costs, citing a report prepared by Defendant’s expert, Robert Peterson. ECF No. 45 at 12; see Report of Robert A. Peterson at 37, ECF No. 45-4. Defendant, however, provided the revised uncontested damages figure in its opposition brief, representing that the revised amount will be reflected in an updated report to be produced to Plaintiff as soon as practicable. Def.’s Resp. to Pl.’s Mot. at 6 n.1, ECF No. 48. 7 expert testimony it intends to offer, Defendant expects to contest at trial only $55,578,737 of

Plaintiff’s total request for damages. ECF No. 48 at 6 n.1.

Other judges of this court have routinely entered partial summary judgment in SNF cases

involving similar circumstances. See, e.g., Ga. Power Co. v. United States, 143 Fed. Cl. 750, 755

(2019) (holding summary judgment was appropriate with respect to approximately $143 million

of undisputed damages); Conn. Yankee Atomic Power Co. v. United States, 142 Fed. Cl. 87, 90

(2019) (granting partial summary judgment with respect to approximately $103 million of

undisputed damages). Indeed, Defendant does not meaningfully dispute that partial summary

judgment on this issue is appropriate. See generally ECF No. 48. Accordingly, construing all

evidence and reasonable factual inferences in the light most favorable to Defendant, as the

nonmovant, the Court finds that Plaintiff has demonstrated the absence of a genuine dispute as to

material fact and is therefore entitled to summary judgment with respect to $135,892,413 in

claimed damages.

Although the Court agrees with Plaintiff as to the appropriateness of partial summary

judgment, it does not share the same opinion with respect to entry of partial final judgment in the

amount of these uncontested damages. See ECF No. 45 at 14–18; ECF No. 49 at 11. As Defendant

correctly argues, a Rule 54(b) judgment is not appropriate because judgment as to one aspect of

damages does not finally resolve Plaintiff’s single breach of contract claim. See ECF No. 48 at 6.

RCFC 54 provides that when “an action presents more than one claim for relief[,] . . . the

court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . if the

court expressly determines that there is no just reason for delay.” RCFC 54(b). Whether partial

judgment under RCFC 54(b) is appropriate requires a two-part analysis. First, “the judgment must

be final with respect to one or more claims.” Houston Indus. Inc. v. United States, 78 F.3d 564,

8 567 (Fed. Cir. 1996) (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742–43 (1976)). “The

resolution of individual issues within a claim does not satisfy the requirements of Rule 54(b).” Id.;

see W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Rsch. Assocs., Inc., 975 F.2d 858, 861–62

(Fed. Cir. 1992) (holding that a “judgment is not final for Rule 54(b) purposes unless it is ‘an

ultimate disposition of an individual claim entered in the course of a multiple claims action.’”

(emphasis in original) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956))).

Second, considering “the judicial administrative interests as well as the equities involved,” the

Court must determine that there is “no just reason for delay.” Curtiss-Wright Corp. v. Gen. Elec.

Co., 446 U.S. 1, 7 (1980).

Despite advancing a single breach of contract claim, see Pl.’s Compl. at 11 (“Claims for

Relief”), ECF No. 1, Plaintiff contends that entry of partial final judgment as to the uncontested

portion of damages is warranted. According to Plaintiff, viewing the “whole lawsuit” as a “single,

non-segregable” claim is “overly formulaic and restrictive, and ‘makes little sense’ in the context

of . . . spent nuclear fuel damages cases.” ECF No. 45 at 15; see ECF No. 49 at 7 (“There is no

reason that the alleged ‘lone claim’ could not also be divided for resolution into separate

components based upon finality and the absence of any dispute regarding quantum or

entitlement.”).

Plaintiff asserts that its argument is analogous to the facts of Stockton East Water District

v. United States, 120 Fed. Cl. 80, 82–83 (2015), and Bell BCI Corp. v. United States, 91 Fed. Cl.

664, 666 (2010). See ECF No. 45 at 15. In those cases, the trial courts entered partial judgment

as to portions of the plaintiffs’ damages awards affirmed by the Federal Circuit even though other

portions of the awards would be reexamined during the remand proceedings. See Stockton, 120

Fed. Cl. at 83; Bell BCI, 91 Fed. Cl. at 667. As Defendant emphasizes, each court’s finding that

9 Rule 54(b) relief was warranted relied specifically on the posture of the cases, citing binding

precedent approving the entry of partial judgment in similar remand postures. See Stockton, 120

Fed. Cl. at 83 (holding that a trial court may on remand enter partial final judgment “as to a sum

certain in damages for which a defendant is liable as a result of the court of appeals[’] mandate,

even if the remand order requires the trial court to adjudicate other requests for damages by

plaintiff arising out of the same legal claim.” (citing King Instrument Corp. v. Otari Corp., 814

F.2d 1560 (Fed. Cir. 1987)); Bell BCI, 91 Fed. Cl. at 668 (citing King Instrument, 814 F.2d at

1563). As that precedent explains, “Rule 54(b), which concerns the power of the trial court before

appeal, is not applicable” in the remand posture presented in Stockton and Bell BCI. King

Instrument, 814 F.2d at 1563 (emphasis in original).

The procedural posture of the instant case is quite different. Here, there has been no

affirmance of any aspect of Plaintiff’s damages claim and no mandate from the Federal Circuit by

which the Court may exercise authority to enter partial final judgment as to a sum certain in

damages. Nor is the Court’s order granting summary judgment on the uncontested portion of

damages necessarily a functional equivalent. Compare Bell BCI, 91 Fed. Cl. at 668–69 (finding

partial judgment was warranted because “[t]he [Federal Circuit’s] decision on the affirmed claims

is final, the Government’s liability is established, these claims will have no possible effect on the

remand proceedings, and the claims will never again be reviewed on appeal.”), with Entergy

Nuclear Generation Co. v. United States, 138 Fed. Cl. 317, 323 (2018) (rejecting request to enter

partial judgment on uncontested damages in a SNF case even where the Government represented

that it would not appeal that amount). Moreover, Defendant represents that it intends to seek an

offset to Plaintiff’s disputed damages in the amount of at least $1.5 million, and perhaps more

depending on the resolution of other issues in the parties’ motions. See ECF No. 48 at 11–12.

10 Although a relatively nominal amount compared to the $55.5 million in dispute, that offset may

factor into the ultimate accounting of damages further distinguishes the level of finality (or lack

thereof) between this case, on the one hand, and Stockton and Bell BCI, on the other.

As Plaintiff acknowledges, with respect to SNF cases in a similar posture, decisions

addressing the appropriateness of partial final judgment are split. In Connecticut Yankee and

Entergy Nuclear Palisades, LLC v. United States, the courts issued partial judgments pursuant to

RCFC 54(b) for the uncontested portions of damages, despite the existence of disputes with respect

to the remainder of the requested damages and the fact that each plaintiff alleged only a single

breach of contract claim. See Conn. Yankee, 142 Fed. Cl. at 90; Entergy Nuclear Palisades v.

United States, 122 Fed. Cl. 225, 230 (2015). In two other cases, the courts denied requests for the

entry of partial judgment in the exact same scenario. See Ga. Power, 143 Fed. Cl. at 757; Entergy

Nuclear Generation, 138 Fed. Cl. at 325. Plaintiff “submits that the results in Connecticut Yankee

and Entergy Nuclear Palisades represent the better rule for these spent nuclear fuel damages

cases.” ECF No. 45 at 16. The Court disagrees.

The Court finds the analyses in Georgia Power and Entergy Nuclear Generation more

persuasive. As in Georgia Power, the Court is cognizant of the “equities involved in this case,”

including Defendant’s long-established liability for DOE’s partial breach, the undisputed nature

of the damages at issue, and the inability of Plaintiff to recover interest while waiting for the entry

of final judgment. 143 Fed. Cl. at 756. However, “to grant partial final judgment to [Plaintiff] on

part but not all of the harms arising out of only its breach of contract claim would be to enter

judgment on less than one claim, violating Rule 54(b).” Entergy Nuclear Generation, 138 Fed.

Cl. at 322. Unless and until the Federal Circuit clearly indicates that the language of RCFC 54(b)

permits the partial judgment sought by Plaintiff here (and in other SNF cases), the Court will

11 “hew[] closer to the Federal Circuit’s articulated view in Houston Industries, 78 F.3d at 567, and

consider[] the [undisputed] costs an individual issue within plaintiff[’s] claim for breach of

contract.” 6 Ga. Power, 143 Fed. Cl. at 757. Accordingly, the Court denies Plaintiff’s request for

entry of partial final judgment.

III. The Doctrine of Judicial Estoppel Does Not Preclude Plaintiff’s Assertion of Certain Acceptance Allocation Figures Under Its Exchanges-Based Model.

Defendant argues that Plaintiff should be judicially estopped in this round of litigation from

taking factual positions with respect to acceptance allocations for the years 1998 through 2008 that

are inconsistent with factual positions previously taken by Plaintiff in the first round of litigation.

ECF No. 46 at 15. Specifically, Plaintiff established damages in round one by demonstrating its

use of acceptance allocations in the but-for world on an annual basis from 1998 through 2008 using

the OFF scheme. See id. at 18–19. In this litigation, Plaintiff asserts an exchanges-based theory

of recovery, relying on a model prepared by its expert, Frank Graves, to predict how Plaintiff

would have exchanged acceptance allocations with other utilities to dispose of SNF at VYNPS

more quickly. See id. at 17–18. Defendant emphasizes that this new model assumes different

acceptance allocations for the years 1998 through 2008. 7

6 Because Plaintiff has failed to demonstrate the first prong of the RCFC 54(b) analysis, there is no need for the Court to determine the second prong—i.e., whether there is no just reason for delay. 7 Defendant provided a helpful table, reproduced below, to document the differences in the amounts of SNF accepted during the relevant period, measured in Metric Tons of Uranium (“MTUs”), according to each model. Year First Round: MTUs Accepted by DOE Current Round: MTUs Accepted by DOE 1998 72.9 0 1999 0 0 2000 20.6 0 2001 27.5 9.5 2002 25.7 23.6 2003 39.2 0 12 Plaintiff argues, among other things, that judicial estoppel does not apply to this case

because there is no “clear inconsistency” between the positions taken by Plaintiff with respect to

the acceptance allocations in this and previous rounds of litigation, and any alleged inconsistencies

neither provide Plaintiff an unfair advantage nor cause Defendant to suffer unfair prejudice in this

case. Pl.’s Opp’n to Def.’s Mot. at 16–17, ECF No. 47. On these points, Plaintiff has the stronger

argument.

“Judicial estoppel is an equitable doctrine that prevents a litigant from taking a litigation

position inconsistent with one successfully asserted in an earlier court proceeding.” Egenera, Inc.

v. Cisco Sys., Inc., 972 F.3d 1367, 1378 (Fed. Cir. 2020). Whether to apply judicial estoppel to

preclude a party’s claim is a matter within the court’s discretion. Agility Pub. Warehousing Co.

K.S.C.P. v. United States, 969 F.3d 1355, 1368 (Fed. Cir. 2020) (quoting Data Gen. Corp. v.

Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996)). Although not intending to “establish inflexible

prerequisites or an exhaustive formula for determining the applicability of judicial estoppel,” the

Supreme Court articulated three factors for courts to consider in evaluating the merits of a judicial

estoppel argument. New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001). First, there must be

clear inconsistency in the party’s later position when compared to its previous position. Id. at 750.

“To be ‘clearly inconsistent,’ positions must be ‘mutually exclusive’ and ‘directly inconsistent.’”

Egenera, 972 F.3d at 1379 (quoting RFF Family P’ship v. Ross, 814 F.3d 520, 528 (1st Cir. 2016)).

Second, the party must have prevailed in persuading a court to adopt or accept its earlier,

2004 19.4 23.5 2005 41.4 66.2 2006 24.9 0 2007 25.1 0 2008 23.6 93.8 ECF No. 46 at 15. 13 inconsistent position. New Hampshire, 532 U.S. at 750; see Water Techs. Corp. v. Calco, Ltd.,

850 F.2d 660, 665 (Fed. Cir. 1988) (explaining that the invocation of judicial estoppel “depends

upon [a party] having received a benefit from the previously taken position in the form of judicial

success”). Third, the party must “derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.” New Hampshire, 532 U.S. at 751. The crux of the parties’ dispute

here centers on the first and third New Hampshire factors.

On the first factor, Defendant focuses squarely on the annual acceptance figures determined

in the first round of litigation through application of the OFF scheme. This focus misses the forest

for the trees because a mere difference in factual positions is not necessarily dispositive. See

Egenera, 972 F.3d at 1379 (finding patent owner’s position that an individual was erroneously

listed as an inventor on the patent not “clearly inconsistent” with later position that individual

should be relisted as an inventor). As both parties acknowledge, in SNF cases, the Government

does not pay nuclear utilities for allocations. See ECF No. 47 at 17; ECF No. 50 at 11 n.7. Rather,

the Government is liable for the real-world costs incurred by utilities during a claim period that

were caused by DOE’s breach, and causation is determined by looking to the “but-for world” in

which DOE had accepted SNF through full performance of the Standard Contract. See Pac. Gas

& Elec., 536 F.3d at 1292. In each round of litigation, Plaintiff has consistently claimed that its

costs are fully recoverable as a result of the breach—only the manner in which it has sought to

substantiate its damages claim are different. And if the costs incurred were fully recoverable

regardless of whether the but-for world was defined using OFF or an exchanges-based model, then

neither the theories of recovery nor their factual underpinnings are “mutually exclusive” or

“directly inconsistent.” Egenera, 972 F.3d at 1379; see ECF No. 47 at 16 (“[T]he government

being liable under one (conservative, not disputed) approach to causation, when it would also be

14 liable for the exact same amount (if not more) under a second approach to causation, does not

reflect the sort of inconsistency or ‘mutually exclusive’ positions contemplated by the cases that

have enforced judicial estoppel.”); Report of Frank C. Graves at 9 n.4, ECF No. 47-1.

Defendant concedes that Plaintiff is not judicially estopped from changing its theory of

recovery in this case. See ECF No. 50 at 6. Rather, it argues that Plaintiff’s current model must

incorporate the factual positions taken in the prior, different model used in the first round. Id. The

Court finds this argument difficult to reconcile, as a model for determining damages is not so easily

deconstructed into theory versus fact. Plaintiff’s current exchanges-based model is based entirely

on the assumption of different facts—i.e., that in the but-for world an exchanges market would

have existed and VYNPS would have participated in it rather than following OFF. See Dairyland

Power, 645 F.3d at 1369–71. Other than pointing out that the acceptance allocation figures under

the two models are not the same for the years 1998 through 2008, Defendant does meaningfully

explain why the Court can accept Plaintiff’s new exchanges-based model but only by artificially

limiting some data to the OFF rubric. See ECF No. 50 at 6–7. Defendant has cited no decisions

in SNF cases raising similar concerns about factual inconsistency, even though the Federal Circuit

in Sacramento Municipal Utility District v. United States (“SMUD”) approved the use of the

exchanges-based theory in a later round of that litigation where the nuclear utility successfully

recovered damages under OFF in round one. 566 F. App’x 985, 995 (Fed. Cir. 2014). Defendant

correctly notes that the issue addressed in SMUD was one of collateral estoppel, not judicial

estoppel. ECF No. 50 at 7. It, however, does not contend that the factual differences resulting

from the change of theories in SMUD were not also present in that case.

Even if there were clear inconsistency (as that term is understood in judicial estoppel

cases), under the third New Hampshire factor the Court finds Defendant has not clearly articulated

15 the risk of Plaintiff gaining an unfair advantage or Defendant suffering from unfair prejudice if

Plaintiff is not estopped from relying on different acceptance allocation figures for 1998–2008.

New Hampshire, 532 U.S. at 751. The only argument the Court can discern from Defendant’s

motion on the issue of unfair advantage is that Plaintiff “is using . . . allocations a second time to

buttress its exchanges-based result.” ECF No. 50 at 11 n.7. As Plaintiff’s expert explains,

however, utilizing an exchanges-based model in comparison to OFF would not result in higher

aggregate damages claims by Plaintiff, “though it could lead to lower damages claims.” ECF No.

47-1 at 9 n.4. The Court is not persuaded by Defendant’s amorphous description of unfair

advantage.

Moreover, the Court does not find that Plaintiff’s current assertion of an exchanges-based

theory of recovery (with different acceptance allocations) is an effort to manipulate or mislead the

Court. Judicial estoppel “is not meant to be a technical defense for litigants seeking to derail

potentially meritorious claims, especially when the alleged inconsistency is insignificant at best

and there is no evidence of intent to manipulate or mislead the courts.” Ryan Operations G.P. v.

Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (“Judicial estoppel is not a sword

to be wielded by adversaries unless such tactics are necessary to ‘secure substantial equity.’”

(quoting Gleason v. United States, 458 F.2d 171, 175 (3d Cir. 1972))); see Kannuu PTY Ltd. v.

Samsung Elecs. Co., 15 F.4th 1101, 1109 (Fed. Cir. 2021) (citing United States v. Apple, Inc., 791

F.3d 290, 337 (2d Cir. 2015) (“[R]elief is granted only when the . . . impact on judicial integrity is

certain.” (alterations in original) (citation omitted))). In the 15-year period between the filing of

the complaints in round one and in this case, the legal framework for awarding damages in SNF

cases has evolved. See, e.g., Dairyland Power, 645 F.3d at 1369–71; SMUD, 566 F. App’x at 995.

Additionally, as Plaintiff explained at oral argument, there was no need in prior rounds of litigation

16 to demonstrate entitlement to damages through an exchanges-based model because OFF—the

clear-cut, Circuit-approved theory—provided full recovery. See Hr’g Tr. at 61:3–8, ECF No. 55.

Plaintiff’s strategic decision to proceed under OFF, rather than through exchanges, was explicitly

spelled out in a joint stipulation filed in round two. DA 252–53 (agreeing that the Standard

Contract’s exchanges provision was not relevant because Plaintiff demonstrated damages under

OFF and reserving all rights and objections regarding exchanges-based damages theories for

purposes of future litigation). These circumstances reasonably explain why Plaintiff has now

pivoted to a different damages model that assumes different acceptance allocations. See New

Hampshire, 121 S. Ct. at 1814 (citing 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and

Procedure § 4477, p. 782 (1981)); Egenera, 972 F.3d at 1379 (holding that intervening judicial

rulings “further justif[ied] any seeming inconsistency” in a party’s positions)).

The Court therefore exercises its discretion to deny Defendant’s summary judgment

request with respect to the issue of judicial estoppel. 8

IV. The Plain Language of the Standard Contract Requires DOE to Accept Short-Cooled Fuel on the Same Delivery Schedule as Standard Fuel, Unless Technical Feasibility Concerns Require Schedule Adjustment.

The parties both seek summary judgment on their competing interpretations of the Standard

Contract with respect to DOE’s obligation to accept short-cooled fuel. Plaintiff contends that the

contract terms unequivocally require DOE to accept and dispose of short-cooled fuel. See ECF

No. 45 at 11–12. Conversely, Defendant argues that the contract requires fuel to be cooled for at

8 On March 28, 2022, Plaintiff moved for leave to file a notice of subsequent authority on the issue of judicial estoppel, attaching a recent decision in Duke Energy Progress, LLC v. United States, No. 18-891C (Fed. Cl. Mar. 28, 2022), in which Judge Meyers also rejected a similar argument by the Government. See Pl.’s Mot. for Leave to File Notice of Subsequent Auth., ECF No. 56. Because the Court independently reached the same conclusion without the need to consider Duke Energy, and seeing no reason to delay this opinion, Plaintiff’s motion will be denied as moot. 17 least five years after being discharged before it must be accepted by DOE under OFF. See ECF

No. 46 at 21–22. Under its interpretation, Defendant argues that Mr. Graves’ model must be

rejected as a matter of law because it assumes hypothetical acceptance of VYNPS’ short-cooled

fuel through the exchanges market in contradiction to the plain language of the Standard Contract.

See id. at 21. Because the parties’ arguments are related, the Court will analyze the issues together.

“Contract interpretation is a question of law.” Barron Bancshares, Inc. v. United States,

366 F.3d 1360, 1368 (Fed. Cir. 2004). Like statutory interpretation, a court’s interpretation of a

contract “begins with the language of the written agreement.” NVT Techs., Inc. v. United States,

370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed.

Cir. 1993)). “If the terms of a contract are clear and unambiguous, they must be given their plain

meaning.” Barron Bancshares, 366 F.3d at 1375; see also Harris v. Dep’t of Veterans Affs., 142

F.3d 1463, 1467 (Fed. Cir. 1998) (observing that the words of a contract are given their ordinary

meaning “unless the parties mutually intended and agreed to an alternative meaning”). When

presented with a question of interpretation, a court must consider the contract “as a whole,” giving

meaning to all its parts such that no portion is rendered “useless, inexplicable, void, or

superfluous.” NVT Techs., 370 F.3d at 1159 (citations omitted).

Based on the language of the Standard Contract, DOE’s obligation to accept short-cooled

fuel is clear and unambiguous. Appendix E of the contract classifies three categories of SNF: (1)

standard fuel, which means SNF meeting all the general specifications set forth later in the

appendix; (2) nonstandard fuel, which is defined as SNF that does not meet one or more of the

general specifications; and (3) failed fuel, which means SNF that meets certain of the general

18 specifications as well as certain additional criteria. 9 DA 143. For fuel to be considered standard,

one of the general specifications imposes a minimum cooling time of five years. DA 144. Fuel

that is cooled less than five years is classified as “Nonstandard Fuel--Class NS-3.” Id.; see DA

145 (summarizing all SNF classifications, including four other classes of nonstandard fuel).

Articles V and VI of the Standard Contract define the parties’ delivery/acceptance and

disposal obligations with respect to SNF, as defined in Appendix E. Under section A of Article V

(“Delivery of SNF and/or HLW”), the contract requires utilities to deliver to DOE, and DOE to

accept, the SNF “described in accordance with Article VI.A.” 10 DA 111. Under Section A of

Article VI (“Criteria for Disposal”), DOE is required to accept “only such SNF . . . which meets

the General Specifications for such fuel” in Appendix E. DA 114. This section further provides

that “DOE’s obligation for disposing of SNF under this contract also extends to other than

standard fuel,” which includes both nonstandard and failed fuels under Appendix E. DA 115

(emphasis added). However, unlike standard fuel that meets all the general specifications, this

latter provision qualifies DOE’s acceptance obligation. Specifically, it requires a utility to “obtain

delivery and procedure confirmation from DOE prior to delivery” of other than standard fuel. Id.

Upon receiving a confirmation request, DOE has 60 days to advise the utility “as to the technical

feasibility of disposing of such fuel on the currently agreed to schedule and any schedule

adjustment for such services.” Id.

Defendant recognizes that DOE’s obligation to dispose of SNF under the Standard Contract

extends to other than standard fuel. See ECF No. 46 at 23. It argues, however, that DOE’s

9 Appendix E also acknowledges that fuel “may have ‘Failed Fuel’ and/or several ‘Nonstandard Fuel’ classifications.” DA 143. 10 Article V goes on to provide the procedures utilities must use to obtain approved DCSs, final delivery schedules, and exchange requests. DA 112–14. 19 obligation is not unqualified because acceptance is conditioned on confirmation and technical

feasibility. Id.; see ECF No. 48 at 15–16. The Court agrees. That the Standard Contract imposes

additional procedures and approval based on DOE’s technical feasibility determination does not

appear to be in debate, nor could it be given the plain language of the provision. Compare ECF

No. 48 at 15–16, with ECF No. 49 at 11–13. Instead, the parties primarily dispute what effect

those conditions have on the timing for DOE to accept other than standard fuel and whether Mr.

Graves’ model must be rejected as a matter of law because it is inconsistent with those conditions.

Taking those issues in turn, the Court disagrees that “the Standard Contract makes no

commitment as to when DOE must accept short-cooled fuel.” ECF No. 46 at 23 (emphasis in

original). To adopt such argument would allow the conditions of DOE’s accepting other than

standard fuel to swallow the acceptance obligation itself. As Plaintiff notes, the contract language

could not be clearer: “DOE’s obligation for disposing of SNF under this contract also extends to

other than standard fuel,” which includes short-cooled fuel. DA 115; see ECF No. 47 at 20. That

obligation may come with additional conditions not imposed on standard fuel, but the plain

language of the contract cannot be fairly read to absolve DOE of any disposal timetable. Indeed,

the conditions are themselves limited, especially as compared to other approval requirements in

the contract that are explicitly left to DOE’s sole discretion (such as approving exchange requests).

Compare DA 115, with DA 113. The conditions define the standards by which DOE will exercise

its discretion in reviewing delivery and procedure confirmation requests for other than standard

fuel—i.e., approval decisions are to be based on technical feasibility and a disposal schedule

adjustment is permitted if DOE identifies technical feasibility concerns. DA 115. Absent the need

20 for an adjustment, the contract language contemplates the disposal of other than standard fuel “on

the currently agreed to schedule.” 11 Id.

Other judges of this court have rejected similar attempts by Defendant to undermine the

obligation set forth in the same provision of Article VI, Section A in cases involving failed fuel,

which also is classified as other than standard fuel under Appendix E. See, e.g., Pac. Gas & Elec.

Co. v. United States, 73 Fed. Cl. 333, 400–01 (2006) (rejecting argument that a utility “failed to

meet its burden of establishing when DOE was obligated to accept [PG & E’s] failed fuel . . .

because it is possible that PG & E’s failed fuel would not have been accepted upon the [standard]

OFF queue”)), aff’d in part, rev’d in part and remanded, 536 F.3d 1282 (Fed. Cir. 2008); Yankee

Atomic Elec. Co. v. United States, 73 Fed. Cl. 249, 310–12 (2006) (holding that the relevant

provision “may not be fairly construed to indefinitely defer or postpone disposal” of failed fuel),

aff’d in part, rev’d in part and remanded, 536 F.3d 1268 (Fed. Cir. 2008). Defendant attempts to

distinguish failed fuel cases. It argues that short-cooled fuel—unlike failed fuel—will become

standard fuel simply by the passage of time. See ECF No. 50 at 14. But the Standard Contract

draws no distinctions in the treatment of the various subclassifications of other than standard fuel,

either among the classes of nonstandard fuel or between nonstandard fuel and failed fuel. See ECF

No. 47 at 20 (noting that “[t]here is no carve out exception in the [contract] for short-cooled, Class

NS-3 fuel”).

The Court likewise disagrees with Defendant’s claim that the Standard Contract requires

SNF to be cooled for a minimum of five years before it can be accepted under OFF. ECF No. 46

at 22. This argument relies primarily on Defendant’s contention that interpreting the contract to

11 Under the Standard Contract, the only procedures for the parties to agree to a delivery schedule are set forth in Article V, and include the approved DCS, final delivery schedule, and exchange request procedures. DA 112–13. 21 the contrary would render the general specification for minimum cooling—which leads to a

classification of either standard or nonstandard—superfluous. Id. at 23, 25; ECF No. 50 at 14.

Because short-cooled fuel is the only other than standard fuel that will eventually become standard,

Defendant describes the Class N-3 designation as “a placeholder designation” and the minimum

cooling time as a “requirement” that DOE can enforce to avoid accepting short-cooled fuel. See

ECF No. 50 at 15 & n.10. But again, as Defendant conceded at oral argument, nowhere in the

Standard Contract does it say that DOE can refuse to accept short-cooled fuel. See ECF No. 55 at

38:10–14. Short-cooled fuel is classified as other than standard fuel, and thus is within the scope

of DOE’s disposal obligations. See DA 115. This interpretation does not render the minimum

cooling specification “useless, inexplicable, void, or superfluous,” Gould, 935 F.2d at 1274,

because the plain language of the Standard Contract does not treat standard fuel and short-cooled

fuel indistinguishably. Rather, fuel that receives a Class NS-3 (short-cooled fuel) designation is

subject to the additional conditions stated in the other-than-standard-fuel provision of Article VI.A,

which do not apply to standard fuel. DA 114–15. That provision permits DOE to adjust a delivery

schedule for other than standard fuel, including short-cooled fuel, or (if there are no technical

feasibility issues) to accept such fuel “on the currently agreed to schedule.” DA 115. Thus, to

adopt Defendant’s argument, the Court either would have to (a) read into the other-than-standard-

fuel disposal obligation an exception for short-cooled fuel that simply is not there, or (b) construe

the Class NS-3 designation as a placeholder where nothing indicates in the contract that it should

be treated any differently than the other classes of nonstandard fuel. 12

12 If DOE intended to assign short-cooled fuel only a placeholder classification without imposing any disposal obligation, it easily could have classified such fuel in its own category under Appendix E that recognized the interim nature of its other-than-standard-fuel status. 22 Defendant cites to several cases that it contends “reiterate[] the five year cooling minimum

as required by the Standard Contract and understood by DOE and industry officials.” ECF No. 46

at 24 (citing, among other cases, Wis. Elec. Power Co. v. United States, 90 Fed. Cl. 714, 729–30

(2009)). Upon the Court’s review, the references in the cited decisions were generally made in

passing without any meaningful discussion, and Defendant has not provided this Court with any

of the underlying exhibits or testimony cited in the decisions such that the Court can conduct its

own review. Moreover, as Plaintiff points out, the question of DOE’s acceptance of short-cooled

fuel does not appear to have been at issue in any of the cited decisions, and thus their persuasive

value is not entirely clear. See ECF No. 47 at 22 n.12. In short, if Defendant purports that DOE

intended the Standard Contract to exclude any disposal obligation for short-cooled fuel

(notwithstanding the plain language), it has failed to provide this Court with evidence

demonstrating such intent.

Turning to Plaintiff’s current damages model, Defendant claims that Mr. Graves effectively

“models a but-for world where short-cooled fuel is accepted by DOE as if it were standard fuel”

and therefore his model should be rejected as a matter of law. ECF No. 46 at 24; id. at 25 (“In

fact, the Graves model does not account for DOE involvement at all when it comes to accepting

short-cooled fuel, including allowing the approval process to unfold or an altered timeline to be

worked out.”). Plaintiff disputes Defendant’s characterization, citing to two expert reports it

intends to offer which opine that it would have been technically feasible for DOE to accept short-

cooled fuel “in the manner and under the schedule alleged by [Plaintiff].” ECF No. 47 at 21

(quoting Report of Eileen Supko at 5, ECF No. 47-6); see id. at 20–21 (citing Report of Earl Easton,

ECF No. 47-5). The Court agrees with Plaintiff that any challenges to the assumptions on which

the Graves model relies—specifically, whether it was technically feasible to accept short-cooled

23 fuel and what, if any, adjustment to the delivery schedule would be necessary—present a genuine

dispute as to material facts that cannot be appropriately decided on summary judgment. See id. at

20; see Dairyland Power, 645 F.3d at 1371 (rejecting challenge to a utility’s exchanges-based

model that included acceptance of failed fuel and noting that “whether the ‘causal chain’ is

sufficiently well-formed is one of fact”).

Accordingly, the Court grants in part Plaintiff’s Motion for Partial Summary Judgment and

denies in part Defendant’s Motion for Partial Summary Judgment as to the question of whether

the Standard Contract obligates DOE to accept and dispose of short-cooled fuel, subject to certain

conditions. The Court further denies Defendant’s motion to the extent it requests that the Court

reject Plaintiff’s exchanges-based model as a matter of law as being inconsistent with this

obligation.

V. The Plain Language of the Standard Contract Limits Utilities to Exchanging Only Approved DCSs.

Defendant raises an additional question of contract interpretation. It argues that the

exchanges provision of the Standard Contract “allows utilities to trade [only] approved DCSs”

subject to certain timing constraints and advance approval of DOE,” an obligation for which it

contends Mr. Graves’ model does not account. ECF No. 46 at 26 (emphasis in original); id. at 27–

28. In its opposition brief, Plaintiff does not contest Defendant’s interpretation, and it confirms

that Mr. Graves’ “opinions do not depend upon utilities exchanging anything other than approved

DCS’s under the Standard Contract, nor does he fail to ‘account’ for DOE’s role.” ECF No. 47 at

23–24 (emphasis in original).

The Court agrees with the parties’ reading of the exchanges provision, which plainly

provides that utilities “shall have the right to exchange approved delivery commitment schedules”

with other contract holders. DA 113 (emphasis added). As the parties also agree, whether and

24 how Mr. Graves’ model addresses this approval requirement involves a genuine dispute as to

material facts that cannot be resolved on summary judgment. See ECF No. 50 at 15; ECF No. 47

at 28. Accordingly, the Court grants Defendant’s request for summary judgment with respect to

the exchanges-provision issue, but only as to the legal question of contract interpretation.

VI. Defendant Has Not Demonstrated that Payments Made by Plaintiff to the Town of Vernon under the Tax Stabilization Contract Were Unforeseeable as a Matter of Law.

Defendant challenges whether payments that it characterizes as “voluntary subsidies” made

by Plaintiff to the town of Vernon, Vermont (“Town”), were reasonably foreseeable and therefore

recoverable. ECF No. 46 at 28–30. Although the payments were made pursuant to a Tax

Stabilization Contract (“TSC”) executed by Plaintiff and the Town, Defendant claims that

Plaintiff—acting as a “good corporate citizen”—“agreed to subsidize the town” in an effort to

prepare the Town for the lower tax revenues it would collect following the shutdown of VYNPS.

Id. at 29–30 (citation omitted). According to Defendant, DOE could not have foreseen that “a

utility might negotiate a contract to pay specific amounts to a municipality” for such purpose. See

ECF No. 50 at 16.

Plaintiff, on the other hand, argues that these payments represent property tax costs directly

related to the value of the SNF being stored at the facility, which is a type of cost that has been

routinely awarded in other SNF cases. See ECF No. 47 at 24 (citing Entergy Nuclear Indian Point

2, LLC v. United States, 128 Fed. Cl. 526, 533 (2016); Sys. Fuels, Inc. v. United States, 120 Fed.

Cl. 737, 759–62 (2015); Sys. Fuels, Inc. v. United States, 70 Fed. Cl. 37, 68–70 (2007), rev’d in

part on other grounds, 457 F. App’x 930 (Fed. Cir. 2012)).

For damages to be recoverable in a breach of contract claim, they must be, among other

things, “reasonably foreseeable by the breaching party at the time of contracting.” Ind. Mich.

Power, 422 F.3d at 1373. A plaintiff must prove foreseeability with respect to the type and

25 magnitude of the damages sought. Landmark Land Co. v. F.D.I.C., 256 F.3d 1365, 1378 (Fed.

Cir. 2001). “The mere circumstance that some loss was foreseeable, or even that some loss of the

same general kind was foreseeable, will not suffice if the loss that actually occurred was not

foreseeable.” Old Stone Corp. v. United States, 450 F.3d 1360, 1376 (Fed. Cir. 2006) (emphasis

in original) (alteration omitted) (quoting Restatement (Second) of Contracts § 351 cmt a. (1981));

see Anchor Sav. Bank, FSB v. United States, 597 F.3d 1356, 1364 (Fed. Cir. 2010). “Remoteness

in space and time and the number of intervening events have obvious bearing on foreseeability.”

Vt. Yankee Nuclear Power Corp. v. Entergy Nuclear Vt. Yankee, LLC (“Vermont Yankee”), 683

F.3d 1330, 1344 (Fed. Cir. 2012).

Defendant does not dispute that property taxes associated with a utility’s construction of

on-site dry storage facilities was foreseeable at the time the Standard Contract was signed, nor

does it dispute that Plaintiff could not have ceased paying property taxes to the Town after VYNPS

shut down. See ECF No. 47 at 24, 27–28; ECF No. 50 at 16. Relying on Vermont Yankee,

Defendant contends that Plaintiff’s payments to the Town are not recoverable as a matter of law.

See ECF No. 46 at 28; ECF No. 50 at 16. It emphasizes that Plaintiff made these payments

pursuant to a private agreement with the Town “in lieu of the annual Municipal Services Property

Tax[],” ECF No. 46 at 29 (alteration in original), for an amount “not determined based on a formula

considering the assessed value of specific property,” ECF No. 50 at 16, and with the intention of

“easing the impact on the town of a plant shutdown,” id. According to Defendant, it is “the

mechanism by which the payment[s] came to be made” that makes them unforeseeable. ECF No.

55 at 49:7–8.

Vermont Yankee, however, did not turn on the manner by which ENVY incurred the

costs—i.e., by agreement versus by operation of law. It turned on the type of costs incurred. See

26 Vt. Yankee, 683 F.3d at 1344; see also Anchor Sav. Bank, 597 F.3d at 1364 (general principles of

contract damages do not “impose a restrictive test of foreseeability in which the specific

mechanism of loss must be foreseeable”). In Vermont Yankee, which was an appeal taken in

round one, the Federal Circuit held that certain costs incurred by Plaintiff’s predecessor, Entergy

Nuclear Vermont Yankee (“ENVY”), to obtain the Vermont legislature’s approval to build the

first on-site dry storage facility at VYNPS were foreseeable, while others were not. Vt. Yankee,

683 F.3d at 1343–44. The Court noted that, at the time the then-owner of VYNPS executed the

Standard Contract in 1983, state law required legislative approval for a utility to construct a storage

facility for SNF. Id. at 1343. Although the then-owner enjoyed a company-specific statutory

exemption, the Court held that it was not unforeseeable that the future owner (i.e., EVNY) would

need to obtain the required approval and, as a result, incur at least some legal and lobbying fees.

Id. at 1346. However, the Court reached a contrary conclusion regarding the money ENVY

contributed to Vermont’s Clean Energy Development Fund, which was a condition of the

legislature’s approval. Id. As the Court explained, the fund was not created until 2005, the

payments ENVY made into the fund concededly had nothing to do with dry cask storage of SNF

at VYNPS, and the Court expressed serious concerns that Vermont’s requiring such contributions

was preempted by federal law. Id. at 1346–47. In other words, this particular type of cost was not

foreseeable and thus not recoverable. Id. at 1344 (citing Landmark Land, 256 F.3d at 1378).

Despite Defendant’s attempt to draw a parallel between the non-recoverable clean energy

fund contributions to the state in Vermont Yankee and the payments to the Town in the instant case,

the two types of payments are not comparable. See id. at 1347 (emphasizing that non-recoverable

fund payments were “particularly unforeseeable” given they were likely unconstitutional).

Moreover, Defendant has not demonstrated the absence of a genuine dispute as to the material

27 facts necessary to determine whether the payments to the Town are a type of cost that was

foreseeable. Although the TSC indicates the payments were made in lieu of the annual property

tax, Plaintiff points to the testimony of its tax officer, Cory Gruntz, who stated that the “[t]he

purpose of the negotiations was ‘to come up with a suitable assessed value [of VYNPS property]

that resulted in tax payments that [both parties] could live with.’” ECF No. 47 at 25 (emphasis

added) (quoting Dep. Tr. of Cory Gruntz (“Gruntz Tr.”) at 97:2–16, ECF No. 47-9); see Vt. Yankee,

683 F.3d at 1345 (contrasting non-recoverable fund payments with foreseeable “adverse tax

consequences of the plaintiffs’ mitigation activities”). The payments were remitted with tax bills

issued to Plaintiff by the Town. See DA 1–3.

Although the tax payments were not based on the grand list’s assessed value, Plaintiff notes

that the Town performed an assessment and assigned a value of $78 million directly related to the

dry storage facilities at VYNPS. 13 ECF No. 47 at 26 (valuing “all property in the ISFSI” at $58

million and the “real property, land and buildings . . . used as part of the ISFSI and [SNF]

preparation and storage” at $20 million (quoting DA 7)); see Vt. Yankee, 683 F.3d at 1346

(observing that non-recoverable fund payments “bore no relationship to any costs incurred . . . as

a result of the construction of the dry storage facility”). Mr. Gruntz further testified that “the

absence of an ISFSI would ‘have changed the negotiated value in place during the period of the

[TSC].” ECF No. 47 at 26; see ECF No. 47-9 at 16 (Gruntz Tr. at 151:16–22). And although Mr.

Gruntz agreed that Plaintiff’s negotiation position considered the impact on the Town of an

immediate drop in Plaintiff’s tax payments, he also explained that his primary goal in the

13 The assessed value of $78 million appears to be the same as the grand list value used for the Statewide Education Tax payments, which Defendant does not challenge on foreseeability grounds. See DA 9; ECF No. 50 at 15–16. 28 negotiations “was to get the best economic outcome for the company and to minimize the property

taxes” paid. ECF No. 47-9 at 7 (Gruntz Tr. at 41:3–5); id. at 14 (Gruntz Tr. at 130:14–131:12).

The Court does not rule out that Defendant may present at trial additional evidence that

calls into question whether the payments to the Town reasonably can be construed as a foreseeable

mitigation of Plaintiff’s tax liability, as Plaintiff claims. See Anchor Sav. Bank, 597 F.3d at 1364

(noting that general principles limit damages where “the loss that actually occurred was not

foreseeable” or “when unforeseeable events result in enhanced losses to the non-breaching party”).

However, giving credit to Plaintiff’s evidence, as the nonmovant, the Court finds that Defendant

has not shown that these payments were unforeseeable as a matter of law, and thus its request for

partial summary judgment in that regard must be denied.

VII. Defendant Has Not Demonstrated that Plaintiff’s Pre-2017 Site Security Costs Are Not Recoverable as a Matter of Law.

Defendant claims Plaintiff’s pre-2017 site security costs are not recoverable because they

would have been incurred, irrespective of DOE’s partial breach, as part of Plaintiff’s regulatory

security plan requirements. ECF No. 46 at 30–31 (citing 10 C.F.R. § 73.55). These costs total

approximately $10,174,208 for 48 security personnel charged with securing the original protected

area at VYNPS, which included both the ISFSI and the spent fuel pool. See id. at 30 (citing DA

170). Plaintiff contends that it is not obligated to demonstrate that the total number of security

personnel would have increased because of DOE’s breach in order to recover the claimed security

costs. See ECF No. 47 at 29. Rather, relying on Federal Circuit decisions approving recovery of

overhead costs in SNF cases, it argues that Plaintiff may recover a properly allocated percentage

of the total security costs assigned to the ISFSI Project. See id. at 28. The Court agrees that,

notwithstanding the regulatory requirements, Plaintiff’s recovery of security costs is not precluded

as a matter of law.

29 The Federal Circuit has repeatedly approved awards in SNF cases for overhead costs that

are fairly allocated to support mitigation efforts. See, e.g., Energy Nw. v. United States, 641 F.3d

1300, 1309 (Fed. Cir. 2011). These types of indirect costs include “certain overhead services that

[a utility] provide[s] for the benefit of all its operations (not only its mitigation activities).” Id. at

1311 (emphasis added). Examples of non-mitigation-specific expenses awarded in SNF cases

include “administrative, management, information services, and resource development expenses,”

id. at 1304, as well as costs of “plant security [and] emergency response systems,” So. Cal. Edison

Co. v. United States, 655 F.3d 1319, 1321 (Fed. Cir. 2011). To demonstrate recoverability, a utility

need not prove that “overhead costs actually . . . increased over the non-breach world.” Energy

Nw., 641 F.3d at 1309. Nor is it dispositive that the claimed costs otherwise would have been

incurred as a result of normal business operations. See So. Cal. Edison, 655 F.3d at 1322. Rather,

having established that mitigation efforts were undertaken as a result of DOE’s breach, utilities are

“entitled to prove the amount of the associated cost (including both direct and indirect costs) by

whatever reasonable techniques are available.” Energy Nw., 641 F.3d at 1309. One such way is

through allocation of overhead costs to mitigation activities on a percentage basis. See So. Cal.

Edison, 655 F.3d at 1322 (holding that allocation of indirect overhead costs to a utility’s ISFSI

project was not erroneous because, if not, other projects and facility operations “would support an

unequal share of the overhead costs” (alteration omitted) (citation omitted)).

Consistent with that precedent, whether Plaintiff can recover the pre-2017 security costs it

assigns to the ISFSI Project involves a genuine dispute as to material facts. See ECF No. 47 at 29;

see also Energy Nw., 641 F.3d at 1309 (agreeing that an “award of damages for overhead costs is

a factual question of the damages amount, not a legal question of causation”). To support its

damages claim for security costs, Plaintiff produced a white paper prepared by VYNPS security

30 management prior to the facility shutting down in 2014. See DA 79–83. The paper projects the

sitewide security costs to be incurred at VYNPS through (and beyond) the current claim period

and allocates such costs between three categories of activities: (1) Independent Spent Fuel Storage,

(2) Spent Fuel Management (i.e., the pool), and (3) License Termination. See DA 79; see also DA

55 (Dep. Tr. of Patrick Ryan (“Ryan Tr.”) at 17:4–11). Through 2016, the paper estimates that 48

security personnel out of VYNPS’ total security staff should be allocated to the ISFSI Project. See

DA 83. This accounts for 43–55 percent of Plaintiff’s total security costs. Id. According to Patrick

Ryan, Plaintiff’s site security manager, this figure was chosen because 10 C.F.R. § 73.55 required

Plaintiff to maintain a team of 48 security personnel responsible for protecting the entirety of the

facility’s protected area, which included the ISFSI. DA 60–63 (Ryan Tr. at 39:22–42:19). Mr.

Ryan acknowledged, however, that the regulation required 48 security personnel to be assigned to

the protected area regardless of the construction of the ISFSI. DA 74–75 (Ryan Tr. at 74:21–75:4);

see DA 73 (Ryan Tr. at 73:7–10) (explaining that if all the SNF had not been relocated to the ISFSI

and remained in the pool the required number of security personnel would actually increase by

one).

Although these facts will unquestionably be relevant to determining whether Plaintiff has

shown a sufficient basis upon which the Court can be “reasonably certain that the claimed damages

were caused by the breach,” Energy Nw., 641 F.3d at 1309, it does not establish that the claimed

pre-2017 site security costs are non-recoverable in their entirety as a matter of law. See ENVY, 95

Fed. Cl. at 183 (“Reasonable certainty also is a question of fact.” (citing Bluebonnet Sav. Bank v.

United States, 266 F.3d 1348, 1356–58 (Fed. Cir. 2001))). Instead, factual presentation is

necessary for the Court to determine whether Plaintiff’s allocation of security costs to its mitigation

activities during the current claim period is supportable and sufficiently related to DOE’s breach.

31 See Sys. Fuels, Inc. v. United States, 666 F.3d 1306, 1311 (Fed. Cir. 2012) (explaining that “‘the

amount of damages need not be ‘ascertainable with absolute exactness or mathematical precision,’

[but that] recovery for speculative damages is precluded.’” (quoting Ind. Mich. Power, 422 F.3d

at 1373)); So. Cal. Edison, 655 F.3d at 1322.

Accordingly, the Court denies Defendant’s Motion for Partial Summary Judgment with

respect to Plaintiff’s pre-2017 site security costs.

CONCLUSION

For these reasons, Plaintiff’s Motion for Partial Summary Judgment and Entry of Partial

Final Judgment (ECF No. 45) is GRANTED IN PART and DENIED IN PART, and Defendant’s

Motion for Partial Summary Judgment (ECF No. 46) is GRANTED IN PART and DENIED IN

PART. Further proceedings will be scheduled in a separate order.

SO ORDERED.

Dated: April 21, 2022 /s/ Kathryn C. Davis KATHRYN C. DAVIS Judge