Yankee Atomic Elec. Co. v. United States, No. 11-5020 (Fed. Cir. 2012)Annotate this Case
Power companies sought damages for the cost of storing spent nuclear fuel and high-level radioactive waste beyond when the government promised by contract to begin storing that waste in a permanent repository. In 2004, the claims court held a seven-week trial on damages. The Federal Circuit accepted its findings on foreseeability, reasonable certainty and the use of the substantial causal factor standard for causation purposes, and the determination that an award of Nuclear Waste Fund fees should be denied as premature, but remanded for application of the 1987 annual capacity report rate to damages claimed by the parties. On remand, the claims court accepted the fuel exchange model presented by plaintiffs’ expert and concluded that plaintiffs would not have built dry storage; two of the companies would not have reracked their storage pools under the 1987 ACR rate. The court found that, using fuel exchanges, plaintiffs would have emptied their wet storage facilities in the non-breach world within the first 10 years of DOE’s performance. The Federal Circuit reversed with respect to denial of claims for wet storage pool costs and NRC fees, which were within the mandate on remand, but otherwise affirmed.