Court awards Entergy reduced damages over spent nuclear fuel claim against DOE

While rejecting some plaintiff contentions, a judge at the U.S. Court of Federal Claims hit the federal government with $49.4 million in damages in a spent nuclear fuel case brought by System Fuels Inc., Entergy Louisiana Inc. and Entergy Louisiana LLC over nuclear waste that the government has not collected from the Waterford power plant. 

Because the federal government’s liability for partial breach of contract has been established, the only issue before the court on Feb. 10 is the amount of damages owed to plaintiffs. System Fuels and the two Entergy Louisiana companies sought $80.8 million in damages incurred over a 16-year period from January 1996 through June 2012, stemming from the Department of Energy’s (DOE) partial breach of the 1983 Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste. The government challenged $33.7 million of plaintiffs claims. “Based on the record developed at trial, the Court awards Plaintiffs $49,403,339 in damages,” said the Feb. 10 ruling.

In 1982, Congress enacted the Nuclear Waste Policy Act, under which it’s supposed to collect and dispose of radioactive waste from nuclear power plants. But years of legal stalemate over development of its Yucca Mountain permanent repository in Nevada means that this waste is largely still sitting in “temporary” storage at the originating power plants. In the meantime, DOE collected fees from the industry that were supposed to fund that waste site.

The NRC issued an operating license to Waterford 3 in 1984. Waterford 3 is a pressurized water reactor that uses uranium dioxide fuel. The uranium dioxide is in the form of pellets, which are loaded into 14-foot long fuel rods by the fuel supplier. At each refueling, which takes place generally every 18 months at Waterford 3, one third to one half of the assemblies are replaced. When the old fuel comes out of the reactor, it must be stored underwater in the plant’s spent fuel pool because it contains highly radioactive fission products.

In rejecting one cost claim from the plaintiffs, the judge noted that the plaintiffs were required to cover cask loading costs under the Standard Contract, but they have not provided a cost assessment of how their actual performance differed from what they would have done under the Standard Contract in the non-breach world. Rather, the judge wrote, plaintiffs merely argue that loading Holtec containers “is a much more involved and difficult process than Plaintiffs would have had to engage in if DOE had brought bolted transportation casks to the Waterford site” and that the costs to “load welded Holtec storage casks are starkly different from the costs that Plaintiffs would likely have incurred to load bolted DOE-supplied transportation casks.” Other than making these general assertions, plaintiffs have not provided any proof as to how their cask loading costs would have differed between the breach and non-breach world. 

The plaintiffs retain the right to bring subsequent actions on claims for damages incurred after June 30, 2012, noted Judge Mary Ellen Coster Williams.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.