ENTERGY NUCLEAR FITZPATRICK, LLC et al v. USA

Filing 240

UNREPORTED Order The Clerk is directed to enter judgment for plaintiffs in the amount of $80,876,013. Signed by Senior Judge Eric G. Bruggink. (jpk1) Copy to parties.

In the United States Court of Federal Claims
No. 03-2627C
(Filed: December 15, 2015)
NOT FOR PUBLICATION
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ENTERGY NUCLEAR FITZPATRICK, LLC,
ENTERGY NUCLEAR INDIAN POINT 3, LLC,
Spent Nuclear Fuel;
and ENTERGY NUCLEAR OPERATIONS, INC.,
ISFSI; Dry fuel
storage; Standard
Plaintiffs,
Contract; Damages;
Partial breach; NRC
v.
fees.
THE UNITED STATES,
Defendant.
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ORDER AND FINAL JUDGMENT
On October 28, 2015, the court announced a bench ruling after trial.
The parties subsequently stipulated to the correct amount of judgment due
plaintiffs assuming the correctness of that ruling, and the court is now prepared
to enter final judgment. The order which follows is drawn from an edited
version of that bench ruling, but there are no substantive changes intended.
See Tr., Oct. 28, 2015, ECF No. 238.
The court has already determined that the United States is liable for its
breach of the Standard Contract for Disposal of Spent Nuclear Fuel. The sole
purpose for trial with respect to plaintiffs’ operation of the Indian Point 3 and
FitzPatrick nuclear plants was the quantum of damages to which plaintiffs are
entitled for the continuing partial breach. Plaintiffs claim a total of
$106,741,389 in damages incurred during the period Nov. 21, 2000 through
June 30, 2013. The government does not contest $77,970,459 of the claim,
leaving in dispute approximately $29 million. Plaintiffs are only seeking
damages for the period subsequent to their acquisition of the two plants.
All of the cost claims relate to the consequences of the government’s
failure to commence Spent Nuclear Fuel pickup (“SNF”) from FitzPatrick and
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Indian Point 3 by the contractually required dates, prompting the otherwise
unnecessary construction of dry a fuel storage facility at FitzPatrick and
associated costs for operating that Independent Spent Fuel Storage Installation
(“ISFSI”), making plant modifications, procuring dry fuel storage casks, and
loading and moving the casks. Plaintiffs’ claims for Indian Point 3 relate to
modifications to the existing facility to accommodate dry fuel storage,
procuring storage casks and related equipment, moving the SNF from Indian
Point 3 to Indian Point 2’s spent fuel pool using a shielded transfer canister
(“STC”), then loading the SNF into dry storage casks, and moving them to the
existing ISFSI at Indian Point.
It is undisputed that, under the applicable DOE acceptance rates, DOE
would have commenced performance at FitzPatrick in 2000 and at Indian Point
3 in 2001. We accept the basic claim that, at FitzPatrick, the breach caused
construction of the ISFSI, the procurement of dry storage casks, the loading of
those casts from the wet pool to dry fuel storage, and, at Indian Point 3, that
the breach caused plaintiffs to procure dry fuel storage casks, make an interim
transfer from Indian Point 3 to Unit 2, then load those casks from the Unit 2
wet pool to dry fuel storage containers and to the Indian Point ISFSI.
There are 23 disputed items and our resolution of them listed below:
1. Upgrading the Indian Point 3 Fuel Storage Building Crane–Plaintiffs
claim costs for upgrading the Indian Point 3 Fuel Storage Building Crane. The
amount claimed by plaintiffs for this item is $10,070,149 ($10,068,838 plus
the amount defendant challenges for payroll loader costs of $1,311).
Conclusion: not recoverable
A. Stipulation 14 states that, “[i]n 1994, NYPA planned a capital
project to upgrade the fuel storage crane at Indian Point 3 to be
single-failure-proof. NYPA noted that the existing fuel storage
building crane had insufficient lift capacity and was not single-failureproof to safely lift spent fuel casks when shipment was required in the
late 1990s.”
B. Stipulation 16 states that, “had DOE fully performed under the
standard contract, NYPA would have upgraded the reactor building
crane to be single-failure proof prior to the sale of the FitzPatrick plant
to Entergy.”
C. The upgrade was not a result of DOE’s breach because it would
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have happened in the but-for world. The fact that Entergy paid for it
rather than NYPA does not make the cost attributable to the breach.
2. Loading of Holtec Dry Storage Casks–Defendant challenges certain of
Entergy’s costs in loading of the Holtec dry storage casks: $4,083,915 for
loading costs at Indian Point 3 and $2,554,157 of loading costs at FitzPatrick.
Conclusion: recoverable
A. Although little is known regarding what DOE performance will
look like when it eventually happens, this should not be held against
plaintiffs as a deficiency in their construction of a non-breach world.
The breach makes it impossible to know what that loading campaign
will look like.
i. Plaintiffs posed a number of questions aimed at this problem
in their interrogatories and requests for admission. The answers
they received were either insufficient to allow them to model
DOE performance and compare it with their own or the answers
directly support plaintiffs’ assertion that this comparison is
impossible. For example:
a. In response to an interrogatory number 2, defendant
states that “When the standard contract was promulgated,
it was contemplated by both utilities and DOE that bare
fuel assemblies would be loaded into transportation casks
provided by DOE,” but went on to admit that a contract
amendment will be necessary to “define the terms and
conditions of acceptance for canistered fuel.”
b. In interrogatories 3 and 4, plaintiffs inquired of
specifics regarding the cask DOE would have provided
for transport. The extent of the answer given was that, at
Indian Point 3, a legal-weight truck cask would have
been “suitable for use” unless Entergy allowed for
loading to intermediate transport cask for subsequent
loading to a larger final transport cask; and, for
FitzPatrick, DOE stated that a larger rail cask would have
been suitable for use. For both locations, it was admitted
that, at the time that DOE was analyzing and planning for
transport at these locations, “no DOE reference cask
could have been used” at either site without further
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analysis, administrative revisions, and possible site
modifications. Defendant summed up its answer by
saying that DOE had not selected a cask for use at either
site.
c. Defendant argues that this assumes that plaintiffs are
relying on the government’s refusal to answer
interrogatories and that they should have asked the court
to direct better answers. The opposite is true. Plaintiffs
are relying on what defendant represented in its answers,
not on the absence of answers.
B. The fact that plaintiffs will have to do a loading campaign in the
future (to DOE) is no answer because we know now that plaintiffs will
have had to load twice. The balance of the evidence shows that it is
more likely than not that Entergy will have to re-perform these same
tasks in a new loading campaign when it loads to DOE in the future.
C. The breach caused Entergy to have to load to a transport and then
storage cask at least one more time than would have been the case had
DOE performed. Plaintiffs would not have had to load to an ISFSI in
the non-breach world. At Indian Point 3 we know that loading and
unloading and reloading through the pool at Indian Point 2 is all extra
work.
D. The common thread in the court’s resolution of the various items is
that plaintiffs can recover for those work items that we either know will
be done twice or which they have shown will probably have to be done
twice. If plaintiffs cannot show that for a cost item, then they cannot
recover for it.
3. Part 171 Nuclear Regulatory Commission Fees–Plaintiffs claim a portion
of the Part 171 U.S. Nuclear Regulatory Commission (“NRC”) fees. The
amount claimed by plaintiffs for these fees is $3,866,070. Conclusion: not
recoverable
A. The testimony of Mr. Funches was relevant, reliable and admissible,
but his testimony did not sufficiently link the increase in fees to the
breach, i.e., Entergy did not establish an incremental increase
attributable to the breach. Mr. Funches did not establish the damages
with reasonable certainty.
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B. Before the rule change: the fee did not apply unless the plant used
dry storage. After the rule change: all utilities paying Part 171 fees
have to pay dry storage fees.
C. Even though the Statement in the Federal Register is presumed to
be the best evidence of the actual reason for the change in 171 fees,
namely to induce utilities to use dry storage facilities and to recover all
of the NRC’s decommissioning licensing costs, in principal, I can
accept the notion that, the breach will lead to more dry fuel storage, and
more dry fuel store will lead to more regulatory oversight and more cost
to the agency, which is legally obligated to recover most of the cost
from the utilities. So generally, there is evidence of causation.
D. But, everyone storing fuel (both wet and dry) on site paid the fee
post-fee structure change. By definition, therefore, there cannot be a
1:1 correspondence between the breach and the fee, which is not
calculated based on volume of storage at a particular site. Plaintiffs are
in no different position than utilities that had no dry storage.
E. Thus the actual metric that Mr. Funches used does not correspond
in any way to the particulars of plaintiffs’ experience of the breach. In
other words, if plaintiffs had less dry storage, they would not have
experienced a different fee, and vice versa. There is insufficient
linkage between the cost claimed and the breach.
4. Estimated Security Costs at Indian Point 3–Plaintiffs claim the estimated
cost of manning two additional Bullet Resistant Enclosures (“BREs”) at Indian
Point 3 near the ISFSI. Plaintiffs claim $2,538,576 for its estimated cost of
manning the two BREs. Conclusion: not recoverable
A. In principal, once again, I can accept the idea that having two more
BREs to man should lead to higher staffing costs, but plaintiffs’
calculation of additional costs based on full-time equivalents did not
establish an incremental increase in actual security staffing and thus
actual costs incurred due to the breach. It was simply assumed.
B. There was no evidence of either an uptick in security staffing when
the two addition BREs went online or evidence of actual 24/7 staffing
of those posts.
C. The testimony of Mr. Gagnon that this lack of an uptick in staffing
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was due to the natural ebb and flow of security staffing at such a large
facility does not explain the lack of proof, and plaintiffs have not
claimed lost opportunity costs. The claim fails for lack of proof.
5. Disposal of Radioactively Contaminated Soil at Indian Point 3–Plaintiffs
claim costs for excavating and disposing of radioactively contaminated soil at
Indian Point 3. The amount claimed by plaintiffs for this item is $2,443,947.
Conclusion: not recoverable
A. Plaintiffs had to improve the haul path in order to move the massive
HI-TRAC containing the spent fuel, and, in doing so, had to remove
some contaminated soil that they found. The testimony that Entergy
would have to remove the contamination at decommissioning, however,
was uncontroverted, and thus this cost would have been incurred in the
non-breach world.
B. The suggestion that the half-life of the radioactive isotopes might
have been exceeded within anything other than geological time was
speculation; no expert opined that this would be the case.
6. South Security Fence Costs at Indian Point 3–Plaintiffs claim a portion
of the costs associated with moving the south security fence at Indian Point 3.
The amount for this claim is $1,887,250. Conclusion: not recoverable
A. The Project Manager, Mr. DeFrancesco had previously suggested
moving the entire fence, but it was not done earlier, in his own words,
“because he could not make the business case for it.”
B. He testified that the fence project was done in order to expand the
exclusion zone, which alleviated certain political concerns unrelated to
the breach. Nor was the desire to move the intrusion detection system
further out related to the breach.
C. Mr. Gagnon also testified that it was unnecessary to move the fence
for loading to the ISFSI because the HI-TRAC could have been moved
in and out of the gates between facilities.
D. Mr. Hinrichs testified that, after the fact, he estimated that 10
percent of the project was attributable to dry storage project and then
selected an assortment of work orders that would equal to 10 percent of
the total cost. Plaintiffs failed to make the requisite showings that this
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part of the project was a result of the breach and that the way they
calculated damages was anything other than a guess.
7. Repair of Certain Indian Point 3 Fuel Assemblies–Plaintiffs claim costs
for repairing defects in certain Indian Point 3 fuel assemblies manufactured by
Westinghouse. The amount claimed by plaintiffs for this item is $1,677,914
($1,509,042 plus amounts defendant challenges for unsupported costs of
$168,820 and payroll loader costs of $52). Conclusion: not recoverable
A. The top band of these type of Westinghouse fuel assemblies was
corroding due to a faulty selection of materials. DOE’s breach was
completely unrelated to the design failure of these fuel assemblies.
B. There is no dispute that this repair would have to be done some time
in the future in order to move these assemblies.
C. Further, because of stipulation 9, which assumes the 1987 ACR pick
up rates, and PX 128 (which uses that in its modeling), Entergy would
have had to do this repair itself in order to load to DOE beginning in
2001. Only if Entergy were to delay pick up by swapping rights, which
it alleges in the not-admitted Waterford model, would Entergy be able
to claim that it wouldn't have had to do this repair during the damages
period.
8. Materials Loaders on Unclaimed Items and Items Missing Loader Rate
Support–Defendant challenges plaintiffs’ entitlement to loaders applied to
work items that Entergy no longer claims in this lawsuit. Defendant also
challenges the loader rates applied to certain costs incurred during the period
immediately after the sale of Indian Point 3 by NYPA to Entergy as
insufficiently supported. The total challenged for these two items combined
is $1,150,325. Conclusion: $730,000 is recoverable; $420,000 is not
recoverable.
A. As to the approximately $420,000 relating to items reversed out of
the claim, Mr. Peterson’s was the only direct testimony on the subject.
His testimony was uncontroverted that, although plaintiffs properly
excluded the cost of certain materials, it failed to also remove from the
claim the associated materials loaders. Materials loaders applied to cost
items not claimed are not chargeable to the government as damages.
B. As to the $730k challenged by Mr. Peterson because he could not
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compute the effective rate, defendant failed to rebut the testimony of
Ms. Curran as to how those costs were booked and how the loaders
were calculated and applied. Given the circumstances in the
changeover form NYPA to Entergy, we see no reason to question the
accounting method used by Entergy.
9. Analysis of and Modifications to the Fuel Storage Building at Indian
Point 3–Plaintiffs claim costs for the analysis of and modifications to the Fuel
Storage Building at Indian Point 3. The total amount claimed by plaintiffs for
these four separate items is $1,093,540. Conclusion: lead paint abatement,
duct removal, and floor resurfacing are recoverable. Load analysis is not
recoverable.
A. The work was necessary to facilitate moving fuel in the HI-TRAC
from Indian Point 3 to Indian Point 2. By contract, the DOE cask had
to be suitable to use without further building modifications.
B. These items were addressed by Mssrs. DeFrancesco and Skonieczny.
Plaintiffs’ general argument is that the standard K required the cask to
be “suitable for use” and thus improvements/adaptations to buildings
would not have been necessary if DOE had performed. Defendant’s
response is that plaintiffs have not modeled the non-breach
performance and so they have not proven what modifications would or
would not have been necessary in the non-breach world.
i. Lead paint abatement: yes
a. Lead paint had to be removed from the Indian Point 3
crane bridge for welding on lift attachments.
b. Mr. Brewer testified for the government that this
would have been necessary at decommissioning, but did
no specific modeling of that or further investigation into
the issue.
c. Mr. Skonieczny testified that slings would have been
used at decommissioning and therefore that the lead paint
could have been left undisturbed.
d. Mr. Skonieczny’s testimony on the issue was more
helpful to the court than Mr. Brewer’s general assertion
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as to decommissioning. Thus we find that it was more
likely than not that lead abatement was caused by the
breach and does not replicate work that would have
occurred in the non-breach world.
ii. Ventilation duct removal: yes
a. Plaintiffs proved that it was more likely than not that
the STC and HI-TRAC were heavier and taller than the
cask that DOE would have brought to Indian Point 3.
b. The ventilation duct removal was necessary to raise
the door to accommodate the larger cask.
iii. Floor resurfacing: yes
a. The floor was not level enough for use with air pads,
which were necessary given the weight of the fully
loaded Hi-Trak.
iv. Load analysis: no
a. I am prepared to assume that DOE would have had to
use a smaller cask to load in the Indian Point 3 fuel
building, but plaintiffs failed to establish that a load
analysis would not have been necessary to load even a
DOE transport cask.
10. Indian Point 3 Fuel Characterization–Plaintiffs claim the costs of fuel
characterization. The amount claimed by plaintiffs for this item is $761,021,
which consists of $272,160 for the fuel inspection and characterization report,
$58,310 for debris removal, and $430,551 for Westinghouse fuel
characterization activities. Conclusion: recoverable
A. DOE’s delay caused Entergy to characterize the fuel in order to
move it to the ISFSI.
B. Although this would have been necessary in order to load to DOE,
the delay in pickup has caused Entergy to have to perform the
characterization one additional time that it would not have had to incur
had DOE performed. The evidence is clear that the odds are
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overwhelming that the fuel will have to come off of the ISFSI, out of
the storage containers, and then go back into the pools.
11. FitzPatrick 2013 Loading Delay–Plaintiffs claim costs associated with
the 2013 FitzPatrick loading delay. The amount claimed by plaintiffs for this
item is $650,521 ($613,943 plus amounts defendant challenges for
unsupported costs of $36,241 and payroll loader costs of $336). Conclusion:
not recoverable.
A. These are costs are associated with preparations for the 2013
loading campaign. They were incurred twice because plaintiffs started,
stopped, then started again. Plaintiffs had to stop and do a new seismic
analysis prompted by the Perry Plant incident.
B. Although Entergy would not have had to load to the ISFSI in 2013
but for the breach, plaintiffs incurred extra costs as a result of its own
negligence in ignoring known risks after the incident in 2011 at the
Perry plant.
C. DOE’s breach did not cause plaintiffs to undergo the preparatory
activities for the 2013 loading campaign twice. Plaintiffs simply failed
to mitigate its damages in this regard.
12. Transactions allegedly missing documentation–Defendant challenges
a number of items included in Mr. Metcalfe’s spreadsheets as insufficiently
documented. These are primarily cost items related to contracts and work
orders for materials and services performed by third parties. Defendant
proposes a $464,593 reduction in the claim for Indian Point 3 and a reduction
of $137,589 in the claim for FitzPatrick. Conclusion: recoverable
A. Mr. Metcalfe persuaded us that although some documentation was
missing in comparison to other claimed costs, these costs were
associated with the dry storage project. This was further supported by
some of the fact witnesses who gave specific testimony as to some of
these specific costs having been incurred and, in general, the discipline
of booking costs to the project.
B. Mr. Peterson’s testimony was insufficient to rebut Mr. Metcalfe
because he could only cast doubt based on his own personal belief
regarding sufficient proof for a cost. Mr. Peterson was unable to say
“here is why these costs weren’t actually incurred as part of the cask
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loading or ISFSI storage.” Nor was Mr. Peterson applying any
objective accounting standard, such as GAAP, FERC, etc.
13. Materials Loaders for Indian Point 3 HI-TRAC and FitzPatrick
calculations and repairs–Defendant challenges the application of a materials
handling loader to three items claimed by plaintiffs: (1) the Indian Point 3 HITRAC cask and (2) Holtec turnkey contract for repair of the lifting brackets
at FitzPatrick; and (3) Holtec analysis or performed in support of the cask
loading at FitzPatrick. The challenged costs amount to $419,100 for the
materials loader applied to the Indian Point 3 HI-TRAC and $12,176 for the
analysis at FitzPatrick ($5,129.73 for the loader applied to the repair contract
and $7,046.16 for the Holtec analysis). Conclusion: HI-TRAC loader is not
recoverable; FitzPatrick bracket repair contract is not recoverable;
FitzPatrick Hotlec analysis is recoverable.
A. As to the $5,000 for the Holtec bracket repair at FitzPatrick, Mr.
Peterson’s testimony that this was the result of the improper use of a
purchase order rather than a contract order was uncontroverted. This
was a turnkey contract and does not appear to bear any relation to the
warehousing and inventory associated with a materials handling loader.
B. As to the $7k loader applied to the Holtec analysis work, there was
testimony that the resulting report was delivered in hard copy format by
Fed Ex and came through the warehouse. Thus a materials loader was
properly applied.
C. As to the $419,000 for the HI-TRAC cask, the contract called for a
zero dollar contract order to be used. Instead, Entergy elected to use a
purchase order and applied a materials loader.
i. The HI-TRAC neither came through the warehouse nor was
it ordered/procured by Indian Point 3 personnel. It was ordered
by Entergy corporate and was part of a turnkey contract.
ii. The materials loader was thus improperly applied to this item
and is not chargeable to the government as a result of the breach.
Treating this as eligible for a percentage markup related to costs
for materials handling bears no correspondence to reality.
14. Procurement of Work Platforms at FitzPatrick and Indian Point
3–Plaintiffs claim costs for procuring work platforms at FitzPatrick and Indian
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Point 3. The amount claimed by plaintiffs for this item is $330,209, which
consists of $183,384 for the platform at FitzPatrick and $146,825 for the
platforms at Indian Point 3. Conclusion: not recoverable.
A. The reasons for installing work platforms at both plants is the same
in both worlds, which is to the say that the impetus for Entergy
performing this upgrade was not DOE’s breach.
B. It is undisputed that access to the top and sides of the casks is
necessary and made easier by a work platform whether the cask is
bolted or welded, and these platforms have continuing utility.
Scaffolding, on the other hand, would have had to be assembled and
disassembled repeatedly.
C. The court is persuaded that this would have been done in the
non-breach world, and in any event was useful irrespective of the
breach so that charging the government for 100 percent of the cost
would be improper.
15. Expedited Delivery Fees–Plaintiffs claim costs for fees paid to Holtec to
expedite delivery of storage casks. The amount claimed by plaintiffs for these
fees is $226,400. Conclusion: not recoverable.
A. Plaintiffs argue that only reasonable mitigation is required, not
perfect mitigation. But this is an instance of a complete failure to
mitigate.
B. These fees were not incurred as a result of DOE’s breach because
it was Entergy’s own decision to give its casks at Indian Point 3 to be
used at Indian Point 2 in 2012 for loading not at issue here.
C. Had Entergy not voluntarily used the Indian Point 3 casks at Indian
Point 2, it would not have had to procure those casks for Indian Point
3 in 2013 and incur the rush delivery fee that Holtec was charging at
that time.
16. Payroll Loaders (Resource Codes 19 and 60)–Defendant challenges the
recoverability of payroll loaders using these resource codes. The amount
disputed by defendant for this item is $123,701, which consists of $88,388
from Resource Code 19 and $35,313 from Resource Code 60. Conclusion:
recoverable.
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A. Defendant argues that stock options are only given to high level
executives who do not work at either plant, and the costs incurred by
Entergy for stock options fluctuate for reasons unrelated to the breach.
Therefore, they do not bear any connection to costs incurred as a result
of the breach and dry storage loading.
B. Defendant argues that retiree costs similarly reflect costs actually
incurred before the breach and are thus not recoverable.
C. Ms. Heard established the regular practice of allocating these costs
(stock options and retirement costs) to projects. Entergy did nothing
out of the ordinary in applying resource codes 19 and 60 to cost items
incurred as a result of the breach.
D. No government witness addressed these costs as violating any
objective accounting standard.
E. The law will not require Entergy to invent an entirely new
accounting system for purposes of this lawsuit in order to further
subdivide its cost allocation system to an even more granular level than
it already is. Unlike the materials loader I disallowed earlier, there is
no question here that plaintiffs actually incurred these costs. It is
simply a question of allocation. Asking them to create a new
accounting system which eliminates them from this claim distorts their
ability to recover the costs consistently with their pre-existing
accounting system.
17. FitzPatrick Replacement Lifting Device Bolts–Plaintiffs claim the cost
of replacement lifting device bolts at FitzPatrick. The amount claimed by
plaintiffs for this item is $89,150. Conclusion: not recoverable.
A. 1. The breach did not cause plaintiffs to lose the lifting device
bolts. Failure to mitigate.
18. Membership Fees and Conferences–Plaintiffs claim membership fees in
the Holtec User Group and the cost to attend conferences related to that
membership. The amount claimed by plaintiffs for this item is $41,082.
Conclusion: recoverable.
A. Plaintiffs were reasonable in selecting Holtec as their cask vendor
for ISFSI loading and storage.
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B. Plaintiffs’ witnesses were uniform and uncontroverted in testifying
that the Holtec User Group was of great assistance in using these casks
and that one would not want to use the casks without being a member
of the group and the associated industry knowledge that came with it.
C. This is a reasonable cost incurred due to the breach.
19. FitzPatrick Internal Labor Missing Name and Hour Detail–Defendant
challenges some of the hours claimed for FitzPatrick internal labor as
insufficiently supported by documentation because certain line items are
missing names of employees or hourly rates associated with them. The total
for this challenge is $435,540. Conclusion: recoverable.
1. Project Managers Phy and Pickett testified that labor was tracked
very carefully on all of these projects, and that comports with the
records that we saw at trial.
2. Mr. Metcalfe testified that he had a high degree of confidence in the
accounting of these costs and inclusion in the claim.
3. Mr. Peterson, in contrast, only stated that he “had concerns.”
20. Modifications to the Fuel Handling Machine at FitzPatrick–Plaintiffs
claim costs of modifications to the fuel handling machine at FitzPatrick. The
amount claimed by plaintiffs for this item is $27,307. Conclusion: not
recoverable.
A. The FitzPatrick fuel handling machine had to be modified to
increase its height limit. It was designed to be used with the IF300
cask, the only cask posited by any witness known to exist that would
have worked with the machine.
B. All casks in existence at the time would have required this same
modification. FitzPatrick was designed to handle a large cask, unlike
the Indian Point 3 unit, and it is more likely than not that DOE would
have used a larger cask to pick up fuel from FitzPatrick. It is thus more
likely than not that plaintiffs would have had to perform this
modification in the non-breach world.

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C. This modification will only have to be performed once, not twice
like loading costs.
21. Certain Labor Provided by DP Engineering–Plaintiffs claim costs for
labor DP Engineering provided for refueling outage support at Indian Point.
The amount claimed by plaintiffs for this item is $12,420. Conclusion:
recoverable.
A. Defendant challenges these civil engineering costs as possibly
unrelated to the cask loading and dry storage.
B. Plaintiffs demonstrated that it was routine to use civil engineering
support for wet fuel transfers at Indian Point 3 and that this was in
support of dry storage.
C. Given what we know about what was necessary in order to load the
fuel to the ISFSI, it is more likely than not that these civil engineering
costs were associated with dry storage. There is no question that the
costs were incurred.
22. FitzPatrick Procurement of Mating Device Bolts–Plaintiffs claim costs
for the procurement of mating device bolts at FitzPatrick. The amount claimed
by plaintiffs for this item is $11,628. Conclusion: not recoverable.
A. Plaintiffs presented no evidence why the breach necessitated it to
procure extra bolts.
B. Testimony was uncontroverted that it is not Entergy’s practice at
FitzPatrick to procure extra bolts like these, and it was more likely just
a mistake. This is thus not a cost attributable to the breach.
23. Repair of the Indian Point 2 Fuel Handling Machine–Plaintiffs claim
the costs of repair of the fuel handling machine used to handle fuel in the
Indian Point 2 fuel pool. The amount claimed by plaintiffs for this item is
$10,747. Conclusion: not recoverable.
A. This is the Fuel Handling Machine at Indian Point2, the
intermediate stop for spent fuel between Indian Point 3 and the ISFSI.
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B.
Plaintiffs argue that the anticipated extra wear and tear
associated with loading to the ISFI made this repair necessary, but the
computer actually failed prior to the movement of fuel from Indian
Point 3 to Indian Point 2 as part of the dry storage campaign.
C. Even if that were not the case, Entergy would have had to use this
machine to load to DOE in the non-breach world, and the wear and tear
would have accumulated then and necessitated the fix.
D. The conclusion is that this repair would have been necessary in the
non-breach world as well.
In sum, the court finds that, with respect to the items held to be
“recoverable,” plaintiffs proved that they were (1) reasonably foreseeable by
government in the event of breach; (2) that the breach was a substantial factor
in causing them, and that (3) plaintiffs have proven the amount of the damages
with reasonable certainty.
The parties have agreed that, in light of these rulings, plaintiffs are
entitled to judgment in the amount of $80,876,013. See Joint Status Report,
Nov. 19, 2015, ECF No. 239. Accordingly, the Clerk is directed to enter final
judgment for plaintiffs in the amount of $80,876,013. No costs.

s/Eric G. Bruggink
ERIC G. BRUGGINK
Judge

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