GEORGIA POWER COMPANY et al v. USA

Filing 239

REPORTED OPINION of this court's June 14, 2023 235 **SEALED**TRIAL OPINION AND ORDER. The parties were invited to identify source selection, proprietary or confidential material subject to deletion on the basis that the material was protected/privileged. No redactions were proposed by the parties. Thus, the sealed and public versions of this opinion are identical, except for the publication date and footnote 1. Signed by Judge Patricia E. Campbell-Smith. (TQ) Service on parties made.

In the United States Court of Federal Claims
Nos. 14-167C & 14-168C
(E-filed: July 12, 2023) 1
GEORGIA POWER COMPANY and
ALABAMA POWER COMPANY,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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Alan T. Rogers, Birmingham, AL, for plaintiffs. Adam K. Israel and Sloane B. Phillips,
of counsel.
Borislav Kushnir, Trial Attorney, with whom appeared Brian M. Boynton, Acting
Assistant Attorney General, Patricia M. McCarthy, Director, and Lisa L. Donahue,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Jimmy S. McBirney, Margaret J.
Jantzen, Kelly A. Krystyniak, and John M. McAdams, of counsel. Jane K. Taylor,
United States Department of Energy, of counsel.
OPINION AND ORDER
CAMPBELL-SMITH, Judge.
Plaintiffs Georgia Power Company and Alabama Power Company filed the instant
complaints on March 4, 2014, alleging that defendant partially breached its contractual
1

This opinion was issued under seal on June 14, 2023. The parties were invited to identify
source selection, proprietary or confidential material subject to deletion on the basis that the
material was protected/privileged. No redactions were proposed by the parties. Thus, the sealed
and public versions of this opinion are identical, except for the publication date and this footnote.

obligations related to the removal of spent nuclear fuel (SNF) and high-level radioactive
waste (HLW) from plaintiffs’ facilities. 2 See Georgia Power Co. v. United States, Case
No. 14-167C, ECF No. 1 (complaint for Plant Alvin W. Vogtle (Plant Vogtle) and Plant
Edwin I. Hatch (Plant Hatch)); Alabama Power Co. v. United States, Case No. 14-168C,
ECF No. 1 (complaint for Plant John M. Farley, Units 1 & 2 (Plant Farley)). The court
conducted a trial on damages in these cases from February 18, 2020, through March 6,
2020. 3 See ECF Nos. 162, 163, 164, 165, 167, 168, 169, 170, 171, 173, 174, 175, 176,
177 (trial transcripts (Tr.)).
Presently before the court are the following post-trial briefs: (1) defendant’s posttrial brief, ECF No. 223; (2) plaintiffs’ post-trial brief, ECF No. 224; (3) defendant’s
response, ECF No. 229; (4) plaintiffs’ response, ECF No. 230; (5) defendant’s reply, ECF
No. 231; and (6) plaintiffs’ reply, ECF No. 232.
The court has considered all of the evidence and the parties’ arguments and now
addresses the issues that are pertinent to the court’s ruling in this opinion. Based on the
evidence presented at trial, and for the following reasons, the court finds that plaintiffs
are entitled to recover damages incurred as a result of defendant’s partial breach.
I.

Background and Findings of Fact
A.

The Standard Contracts

Defendant entered into nearly identical Standard Contracts with each of the
utilities in these cases, under which the government, through the Department of Energy
(DOE), agreed to dispose of the utilities’ SNF. 4 See ECF No. 224 at 12 (plaintiffs noting
2

Each of plaintiffs’ complaints included a claim for breach of the implied duty of good
faith and fair dealing in addition to a claim for partial breach of contract. See Georgia Power Co.
v. United States, Case No. 14-167C, ECF No. 1 (complaint for Plant Alvin W. Vogtle (Plant
Vogtle) and Plant Edwin I. Hatch (Plant Hatch)); Alabama Power Co. v. United States, Case No.
14-168C, ECF No. 1 (complaint for Plant John M. Farley, Units 1 & 2 (Plant Farley)). The
court’s review of the dockets did not reveal any substantive discussion of these claims, and thus,
the court deems plaintiffs’ claims for breach of the implied duty of good faith and fair dealing to
be abandoned.
3

All electronic case filings referenced in this opinion and order appear on the Georgia
Power Co. v. United States, Case No. 14-167C docket unless otherwise stated. The court notes
that these cases were consolidated for purposes of discovery and trial. See ECF No. 23 (order
granting request to consolidate).
4

In Southern Nuclear Operating Co. v. United States, 77 Fed. Cl. 396 (2007), aff’d in part,
vacated in part, 637 F.3d 1297 (2011), the court wrote extensively on the contracts between the
utilities and the government, the historical context in which the contracts came about, and the

2

that the standard contracts were “identical”). The provisions at issue here define the
plaintiffs’ responsibilities to prepare the fuel for transportation, and the government’s
responsibilities to provide certain equipment and information to facilitate transportation
of the casks.
The plaintiffs are obligated, in relevant part, to “arrange for, and provide, all
preparation, packaging, required inspections, and loading activities necessary for the
transportation of SNF and/or HLW to the DOE facility.” 5 JX 1 at IV.A.2 (Preparation
for Transportation). In addition, the Standard Contract requires that plaintiffs “accurately
classify SNF and/or HLW prior to delivery in accordance with paragraphs B and D of
Appendix E.” JX 1 at VI.A.1.b (Criteria for Disposal). Paragraphs B and D of Appendix
E, in turn, provide guidance for characterizing fuel as “standard,” “nonstandard,” or
“failed.” JX 1 at Appendix E (General Specifications). As relevant here, Appendix E
specifies that failed fuel be: (1) “visually inspected for evidence of structural deformity or
damage;” and (2) “packaged and placed in casks so that all applicable regulatory
requirements are met.” Id. at B.6.a, c (Failed Fuel).
The government’s obligations, in relevant part, are as follows:
DOE shall arrange for, and provide, a cask(s) and all necessary transportation
of the SNF and/or HLW from the Purchaser’s site to the DOE facility. Such
cask(s) shall be furnished sufficiently in advance to accommodate scheduled
deliveries. Such cask(s) shall be suitable for use at the Purchaser’s site, meet
applicable regulatory requirements, and be accompanied by pertinent
information including, but not limited to, the following:
(a)

written procedures for cask handling and loading, including
specifications on Purchaser-furnished cannisters [sic] for
containment of failed fuel;

(b)

training for Purchaser’s personnel in cask handling and loading,
as may be necessary;

(c)

technical information, special tools, equipment, lifting trunnions,
spare parts and consumables needed to use and perform incidental
maintenance on the cask(s), and

intricacies of spent nuclear fuel processes. In the interest of focusing on the new issues before the
court, that discussion is not repeated in this opinion.
5
There are four contracts at issue in this case—two for Plant Hatch, one for Plant Vogtle,
and one for Plant Farley. See ECF No. 141 at 2. The court will cite to JX 1 in referring to
contract language because the material portions of the contracts are identical. See JX 1, JX 2, JX
3, and JX 4.

3

(d)

sufficient documentation on the equipment supplied by DOE.

JX 1 at IV.B.2 (DOE Responsibilities).
B.

Litigation History

Plaintiffs initially filed suit in this court in 1998, alleging the government’s breach
of its contractual obligations related to the removal of spent nuclear fuel from plaintiffs’
facilities. See S. Nuclear Operating Co. v. United States, No. 98-614C (Fed. Cl. filed
July 29, 1998). In that first round of litigation, the court granted summary judgment on
liability in favor of plaintiffs. See id. at ECF No. 234.
The parties went to trial on the issue of damages, and after detailed consideration
of plaintiffs’ claims, the court concluded that:
The contracts have been breached by a series of delays that now continue
into 2017 and perhaps 2018. As a result, plaintiffs have built dry storage and
reracked . . . mitigating efforts that would not have been necessary if DOE
had commenced performance at any reasonable pickup rate.
S. Nuclear Operating Co. v. United States, 77 Fed. Cl. 396, 459 (2007). On appeal, the
United States Court of Appeals for the Federal Circuit affirmed the court’s ruling “that
the government had partially breached the Standard Contract by failing to begin
accepting SNF in January 1998,” and noted “[t]here is no issue on appeal as to liability;
liability in these SNF cases has been established.” S. Nuclear Operating Co. v. United
States, 637 F.3d 1297, 1299 (Fed. Cir. 2011) (affirming in part and reversing in part the
court’s damages award). Following the Federal Circuit’s remand, the parties settled the
remaining damages issues, and stipulated to a judgment, which the court entered on April
5, 2012. See S. Nuclear, No. 98-614C, ECF No. 423 (order entering final judgment).
Plaintiffs filed a second round of litigation on April 3, 2008, seeking to recover
damages accrued from January 1, 2005, through December 31, 2010. See Alabama
Power Co. v. United States, 119 Fed. Cl. 615, 618 (2014). Because the government’s
partial breach had already been established, plaintiffs had the task of proving the amount
of their alleged damages and establishing that those damages flowed from the
government’s breach. See id. Following a trial, the court awarded damages to Georgia
Power Company in an amount of $36,474,408 and damages to Alabama Power Company
in an amount of $26,492,773. See id.
Plaintiffs filed their third round of litigation, in the cases presently before the
court, on March 4, 2014. See ECF No. 1. The parties have agreed that plaintiffs incurred
the damages at issue in these cases from January 1, 2011, through December 31, 2014.
4

See ECF No. 17 at 1 (joint status report stating the parties’ stipulation to the damages
period).
C.

Damages at Issue

Plaintiffs in this case seek damages in a total amount of $177,571,872. See ECF
No. 224 at 12. On July 3, 2019, the court granted summary judgment in an amount of
$31,193,958 in favor of Alabama Power (for Plant Farley), and in an amount of
$111,959,799 in favor of Georgia Power ($43,973,607 for Plant Hatch and $67,986,192
for Plant Vogtle). See ECF No. 92 at 9 (July 3, 2019 opinion reported at Georgia Power
Co. v. United States, 143 Fed. Cl. 750, 757 (2019)); ECF No. 224 at 12. Prior to trial, the
parties agreed upon an additional $4,995,671 in damages, including $1,630,725 for
Alabama Power (Plant Farley) and $3,364,946 for Georgia Power ($1,697,614 for Plant
Hatch and $1,667,332 for Plant Vogtle). See ECF No. 224; see also ECF No. 170 at 109
(Tr. 1766:3-1768:13). Thus, the total amount of undisputed damages is $148,149,428.
The remaining sum of plaintiffs’ alleged damages that was disputed at trial is
$29,422,444.61, including: (1) $5,190,836.77 claimed by Alabama Power in connection
with Plant Farley; (2) $24,231,607.84 claimed by Georgia Power in connection with
Plant Hatch ($91,875.18) and Plant Vogtle ($24,139,732.66). 6 See ECF No. 224 at 13.
Of that amount, the parties have stipulated that plaintiffs incurred $21,408,993.90. See
ECF No. 141-1. In addition, defendant contends that plaintiffs have improperly
allocated—and thus should not recover—$455,518. See ECF No. 229 at 109.
Defendant seeks offsets against damages owed to plaintiffs in an amount of
$3,345,106 for the rate of return on common equity earned by plaintiffs. See ECF No.
223 at 7 (citing ECF No. 174 at 209 (Tr. 2532:10-15 (Cain)); ECF No. 178-65 at 3 (DDX
Q at 3).
D.

Plant Hatch

On June 10, 1983, the government entered into a contract with Georgia Power
with regard to the disposal of fuel from Plant Hatch. See ECF No. 141 at 1 (joint
6

In its opening post-trial brief, defendant states that the amount in dispute is $29,452,189,
see ECF No. 223 at 6, which amounts to $29,745 more than plaintiffs allege is in dispute, see
ECF No. 224 at 13. The record citations included as support for defendant’s figure suggest that
the number was derived from the testimony of Mr. Kenneth Metcalfe, plaintiffs’ damages expert.
See ECF No. 169 at 266-67 (Tr. 1635:7-1640:5 (Metcalfe)). In this section of testimony, it
appears that Mr. Metcalfe includes $29,745 relating to defendant’s claim of improper indirect
cost allocation, see ECF No. 178-24 at 9 (PDX Y) which does not match the presently claimed
amount of $455,518, see ECF No. 229 at 109. To avoid confusion, the court addresses the
alleged improper allocations separately from plaintiffs’ claim.

5

stipulations of fact). 7 In this phase of litigation, Georgia Power seeks damages that it
alleges were incurred at Plant Hatch, due to the government’s partial breach of the
Standard Contract from January 1, 2011, through December 31, 2014. See ECF No. 17 at
1; ECF No. 141 at 2.
During that time, Georgia Power repaired its Holtec mating device that is used
during Plant Hatch loading campaigns. See ECF No. 224 at 35; see also ECF No. 141 at
2; ECF No. 141-1. The Holtec “mating device is a piece of equipment that facilitates the
transfer of the [multi-purpose canister (MPC)] from the HI-TRAC into the HI-STORM.”
Id. at 36 (citing ECF No. 163 at 23 (Tr. 237:6-9 (Channell))). To accomplish this, the
mating device sits between the HI-STORM overpack and the HI-TRAC transfer cask.
See id. (citing ECF No. 163 at 23 (Tr. 237:18-21 (Channell))).
While conducting a practice loading campaign at Plant Hatch, Georgia Power
discovered that the mating device was too narrow, and as a result, did not fit properly on
the HI-TRAC casks. See ECF No. 163 at 174 (Tr. 388:4-21 (Channell)). According to
Mr. Clay Channell, plaintiffs’ Dry Storage Program Manager, the improper fit was a
manufacturing error made by Holtec. See id. at 175 (Tr. 389:18-22 (Channell)). Georgia
Power hired Bechtel Power Corporation and Williams Plant Services to fix the problem
by grinding down the sides of the mating device to the correct size. See id. (Tr. 389:1-17
(Channell)).
The repairs to the mating device cost $52,014.44. See ECF No. 141-1. Georgia
Power did not seek to recover the costs from Holtec. See ECF No. 163 at 177 (Tr. 391:27 (Channell)).
E.

Plant Vogtle

On June 10, 1983, the government entered into a contract with Georgia Power
with regard to the disposal of fuel from Plant Vogtle. See ECF No. 141 at 1. In this
phase of litigation, Georgia Power seeks damages that cover costs it alleges were
incurred, due to the government’s partial breach of the Standard Contract from January 1,
2011, through December 31, 2014. See ECF No. 17 at 1; ECF No. 141 at 2.
During that time, Georgia Power incurred costs related to Plant Vogtle’s dry cask
storage program including modifications to the fuel handling building, overhead cask
handling crane, sally port, 2014 fuel sipping campaign, and dry storage engineering. See
ECF No. 224 at 55-140. Georgia Power’s alleged damages for these categories are as
follows:

7

Two contracts were executed for Plant Hatch. See ECF No. 141 at 1.

6

Fuel Handling Building Modifications:
Overhead Cask Handling Crane:
Sally Port:
2014 Fuel Sipping Campaign:
Dry Storage Engineering:
____________

$6,318,677.40
$5,703,010.27
$7,242,557.29
$805,873.50
$1,741,478.00
Total:

$21,811,596.46

See ECF No. 224 at 26. The court will address the pertinent facts for each category, in
turn.
1.

Equipment for and Modifications to Fuel Handling Building

Georgia Power made a series of modifications to the Fuel Handling Building at
Plant Vogtle during the damages period at issue in this case, including to the: (1) cask
loading pit pedestal; (2) cask loading pit seismic restraint system; (3) cask loading pit
temporary walkway; (4) cask washdown area pedestal; (5) cask washdown area seismic
restraints; (6) cask washdown area scaffolding staircase; (7) cask washdown area stepover grating; (8) cask washdown area work platform; (9) cask washdown area electrical
receptacles; (10) lift yoke stand; (11) lift yoke storage arm; (12) concrete pad outside fuel
handling building; (13) small bore piping for helium in fuel handling building; (14) cask
washdown area demineralized water system; (15) boron concentration analysis; and (16)
removable cask loading pit lights. See ECF No. 224 at 55-92.
In the cask loading pit, Georgia Power loads spent fuel from the spent fuel pool
into HI-TRAC transfer casks and, from there, moves the fuel to HI-STORM dry storage
casks. See ECF No. 164 at 127-28 (Tr. 646:19-647:9 (Cash)); ECF No. 165 at 59 (Tr.
721:3-13 (Cash)). The HI-TRAC transfer cask was custom-designed for Plant Vogtle.
See ECF No. 165 at 65, 66-67, 72-73 (Tr. 727:2-4, 728:10-729:1, 734:25-735:5 (Cash)).
During the loading process, the HI-TRAC transfer casks sit on a custom-designed
pedestal in the cask loading pit to ensure that the casks are at the appropriate height. See
id. at 58, 59, 60 (Tr. 720:5-24, 721:21-23, 722:1-9 (Cash)); see also ECF No. 168 at 99
(Tr. 1284:6-15 (Supko)). The design of the pedestal was made to specifically match the
design of the HI-TRAC casks. See id. at 100-01 (Tr. 1285:3-1286:5 (Supko)). The
pedestal cost $275,000. See ECF No. 141-1 (“Cask Loading Pit Pedestal”). Alternatives
to purchasing the pedestal were available to Plant Vogtle, but would have been more
expensive solutions. See ECF No. 170 at 153-54 (Tr. 1810:9-1811:14 (Loftin)).
Plant Vogtle also purchased a seismic restraint system for the cask loading pit
because the plant is in an “active seismic zone,” and it is “part of [the plant’s] process” to
evaluate all equipment for earthquake safety. ECF No. 164 at 129 (Tr. 648:13-15
(Cash)); ECF No. 165 at 69 (Tr. 731:6-16 (Cash)). Like the pedestal, the seismic
restraint system was custom-designed for the HI-TRAC casks at Plant Vogtle. See ECF
7

No. 165 at 71-73 (Tr. 733:25-735:12 (Cash)). Plaintiffs noted, however, that “the
restraints were not because of the HI-TRAC,” and “any cask that you’re putting on a
pedestal [at Plant Vogtle] is going to require some sort of seismic restraint.” Id. at 182
(Tr. 844:15-25 (Cash)). The seismic restraints cost $1,346,127.75. See ECF No. 141-1
(“[Cask Loading Pit] HI-TRAC Seismic Restraint System”).
Georgia Power also seeks damages for the costs related to designing and building
a temporary walkway over the cask loading pit. See ECF No. 224 at 62. In 2009,
Georgia Power determined that the DOE would fail to collect spent nuclear fuel before
on-site storage was necessary, and began making plans for dry storage. See ECF No. 165
at 227-30 (Tr. 889-92 (Cash)). It was critical that Plant Vogtle complete preparations for
dry storage before the presence of excess spent fuel created operational complications,
including interruptions in electricity generation. See id. Due to the time-sensitive nature
of the work, Georgia Power moved on “parallel paths on some parts of the project and
contingency plans.” ECF No. 224 at 64 (citing ECF No. 168 at 105-08 (Tr. 1290-93
(Supko))). The cask loading pit temporary walkway was one such contingency plan to
guard against the risk that “the tool used for moving spent fuel rods from the pool into the
MPC might not reach the cask if the cask pedestal being designed and built by Holtec
was a little on the short side.” Id. (citing ECF No. 165 at 83-84 (Tr. 745-46 (Cash))).
The temporary walkway “would have assured that [workers] had the reach they needed
for the tool used for loading.” Id. (citing ECF No. 165 at 84-85 (Tr. 746:13-747:5
(Cash))). Georgia Power anticipated that designing and building the walkway would
require eight weeks. See ECF No. 165 at 84-85 (Tr. 746:13-747:5 (Cash)); see also id. at
184-85 (Tr. 846:14-847:8 (Cash)) (stating that if accurate drawings had been available,
“it would have taken less than eight weeks”). Although the walkway was ultimately not
needed, id. at 184 (Tr. 846:7-13 (Cash)), Georgia Power spent $471,515 planning for this
contingency, see ECF No. 141-1 (“FHB Temporary Cask Loading Pit Walkway”).
After loading spent fuel assemblies into a HI-TRAC cask in the cask loading pit,
the HI-TRAC is moved to the cask washdown area where the MPC is closed. See ECF
No. 168 at 70-71 (Tr. 1255:4-1256:3 (Supko)). While the HI-TRAC is in the cask
washdown area, the cask sits on a second, unique pedestal. See ECF No. 165 at 94-95
(Tr. 756:5-757:2 (Cash)). The pedestal is custom-designed to fit the precise contours of
the HI-TRAC and to “prevent any horizontal movement of the HI-TRAC during an
earthquake.” Id. at 95-96 (Tr. 757:19-758:2 (Cash)). The pedestal also serves to ensure
that the MPC is at an accessible height for closing operations. See ECF No. 168 at 11112 (Tr. 1296:19-1297:21 (Supko)). The cask washdown area pedestal cost $180,000.
See ECF No. 141-1 (“Cask Washdown Area Pedestal”).
In addition to the pedestal, Georgia Power installed seismic restraints in the cask
washdown area to prevent the HI-TRAC cask from tipping as a result of seismic activity.
See ECF No. 165 at 76-77 (Tr. 738:16-18, 738:25-739:6 (Cash)). The seismic restraints
were, like the pedestals, custom-designed for Plant Vogtle. See id. at 78-79 (Tr. 740:188

741:10 (Cash)); see also id. at 241 (Tr. 903:11-23 (Cash)) (testifying that it would be
“highly unlikely” that a cask other than the HI-TRAC casks used at Plant Vogtle could
use the same seismic restraints). Georgia Power spent $1,247,077 to procure the cask
washdown area seismic restraints. See ECF No. 141-1 (“CWA HI-TRAC Seismic
Restraint System”).
Georgia Power also constructed a scaffolding staircase in the cask washdown area
to accommodate the dry storage process. See ECF No. 165 at 89 (Tr. 751:2-13 (Cash)).
The staircase provided more safety and stability than the existing ladder for the increased
number of workers in the area during closure activities. See id. Georgia Power spent
$242,388 to replace the ladder with the scaffolding staircase. See ECF No. 141-1
(“Ladder Access to the FHB CWA Modification”). It also incurred costs of $22,386.03
to construct temporary scaffolding for use before the stairs were complete. See ECF No.
141-1 (“Scaffold in FHB Unit 2 Spent Fuel Pool Area”); see also ECF No. 224 at 72
n.45.
In order to allow workers safe access to the forced helium dehydration system
used in closing HI-TRAC casks from the top of the cask washdown area, Georgia Power
installed two platforms made of step-over grating. See ECF No. 165 at 92-93 (Tr.
754:12-755:23 (Cash)). The platforms cost $427,279. See ECF No. 141-1 (“AB
Elevator/Stairwell Platform/FHD Skids”).
Georgia Power also constructed a cask washdown area work platform, which cost
$515,751. See ECF No. 141-1 (“AB Elevator/Stairwell Platform Modification”).
Also in the cask washdown area, Georgia Power installed 120-volt AC power
receptacles to allow Holtec technicians to perform welding, forced helium dehydration,
and other MPC closure activities. See ECF No. 165 at 104-05 (Tr. 766:16-767:12
(Cash)). The location of the new receptacles reduced radiation exposure by minimizing
the time workers were required to spend near the top of the MPC, where radiation levels
are highest. See id. at 105-06 (Tr. 767:10-768:7 (Cash)). The receptacles were also,
however, installed for “convenience” and were not dedicated power sources. Id. at 18687 (Tr. 848:12-849:8 (Cash)). Installation of the receptacles cost $185,866. See ECF
No. 141-1 (“120VAC Power Distribution System”).
To move the transfer casks, Georgia Power purchased a lift yoke that was
specifically designed for use with the HI-TRAC casks. See ECF No. 165 at 135 (Tr.
797:1-21 (Cash)); see also ECF No. 173 at 96 (Tr. 2153:10-25 (Brewer)) (explaining that
a lift yoke is a device that attaches the crane hook to the cask). The lift yoke, when not in
use, is stored on a stand. See ECF No. 165 at 133-34 (Tr. 795:2-18, 796:1-10 (Cash)). In
response to interrogatories, the DOE stated that in the non-breach world it would “not
have provided a lift yoke stand because the need for a lift yoke stand would have been
9

determined by the unique needs of the specific plant.” DX 104 at 15. The lift yoke stand
cost $19,025.62. See ECF No. 141-1 (“HI-TRAC Lift Yoke Stand”).
The lift yoke stand, however, was not the initial storage solution for the lift yoke.
Georgia Power first planned to use a storage arm mounted on the wall at Plant Vogtle, as
it had done successfully at Plant Farley. See ECF No. 165 at 136 (Tr. 798:1-25 (Cash)).
Georgia Power understood the storage arm to be the best practice in the industry for
storing lift yokes. See id. at 137 (Tr. 799:9-12 (Cash)). Due to the short timeline for
accommodating dry storage operations, Georgia Power proceeded with designing and
fabricating the storage arm while at the same time evaluating whether the wall on which
the arm would be placed was structurally adequate. See id. (Tr. 799:1-18 (Cash)).
Unfortunately, the structural analysis concluded that the wall might fail in a seismic
event, and therefore, the arm could not be used. See id.; see also id. at 179 (Tr. 841:1315 (Cash)) (characterizing the failed effort as an “oops” moment). The parties have
stipulated that the storage arm cost $148,500. See ECF No. 141-1 (“Lift Yoke Wall
Storage Arm”).
Outside the fuel handing building at Plant Vogtle, Georgia Power built a concrete
pad to stage helium for the forced helium dehydration system used in removing moisture
before closing canisters for dry storage. See ECF No. 165 at 102, 103-04 (Tr. 764:5-13,
765:20-766:6 (Cash)). By locating the pad outside the bay doors of the building, Georgia
Power gained efficiencies related to the number of required personnel and steps required
to meet decontamination requirements that would otherwise be implicated by bringing
the helium inside. See id. at 102-03 (Tr. 764:14-765:13 (Cash)). The concrete pad cost
$307,109 to construct. See ECF No. 141-1 (“AB Exterior Concrete Pad”). The helium
stored on the concrete pad was then connected to the forced helium dehydration system
used in the cask washdown area through small bore piping. See ECF No. 165 at 104 (Tr.
766:7-10 (Cash)). The small bore piping cost $469,736.50 to install. See ECF No. 141-1
(“New Non-Safety Related Small Bore Piping for Helium”).
When a cask is removed from the cask loading pit, it is decontaminated with
demineralized, “very pure water.” ECF No. 165 at 82, 83 (Tr. 744:13-15, 745:3 (Cash)).
Loaded HI-TRAC canisters are presently decontaminated over the spent fuel pool, but
prior to the post-breach dry storage operations, piping allowed for decontamination in the
cask washdown area. See id. at 86, 87 (Tr. 748:5-7, 749:5-13 (Cash)). The pipes in the
cask washdown area “stuck out so far that [Georgia Power] would not be able to move a
HI-TRAC into that area.” Id. at 86 (Tr. 748:14-15 (Cash)). As such, the pipes could no
longer be used and were modified to accommodate the HI-TRAC transfer cask in the
cask washdown area. See id. at 86, 87-88 (Tr. 748:16-17, 749:14-750:1 (Cash)). Georgia
Power also acknowledged that the casks are decontaminated over the pool in order to
minimize radiation exposure and contamination, and that they generally do not use the
cask washdown area. See ECF No. 170 at 155-56 (Tr. 1812:22-1813:2 (Loftin)); see also
ECF No. 165 at 191 (Tr. 853:9-13 (Cash)). The alterations to the demineralized water
10

system in the cask washdown area cost $413,156.50. See ECF No. 141-1
(“Demineralized Water System in Cask Washdown Area”). In addition, because Georgia
Power now decontaminates the HI-TRAC casks over the spent fuel pool, which dilutes
the water in the cask loading pit, it is required to test for adequate boron levels in the pool
every twenty-four hours during loading. See ECF No. 165 at 83 (Tr. 745:1-9 (Cash)).
The cost for boron testing was $25,000. See ECF No. 141-1 (“Boron Concentration
Calculation”).
Finally, Georgia Power procured removable lights for the cask loading pit. The
underwater lights allow personnel “to see with more clarity what’s going on when [they
are] moving fuel into . . . the MPC in the HI-TRAC.” ECF No. 165 at 246 (Tr. 908:9-13
(Cash)). There is, however, “nothing specific about the Holtec cask system that requires
lighting in loading pit.” Id. at 247 (Tr. at 909:21-24 (Cash)). Rather, the lights support
“worker performance and nuclear safety in that they make sure that we can see better
what we’re doing and we don’t inadvertently take a fuel assembly to someplace where it
doesn’t need to go or it can’t go.” Id. at 246 (Tr. 908:17-22 (Cash)). The removable
lights cost $22,760. See ECF No. 141-1 (“Cask Loading Pit Lights”).
2.

Cost Difference Between Repairing and Replacing Overhead Cask
Handling Crane

In Plant Vogtle’s fuel handling building, Georgia Power has a 125-ton overhead
cask handling crane. See ECF No. 164 at 130 (Tr. 649:6-10 (Cash)). The crane is used
to move spent fuel casks from the cask loading pit to the cask washdown area, and then
from the cask washdown area to the railroad bay for transport. See id. (Tr. 649:20-25
(Cash)). The crane also has two hoists—an auxiliary hook and a monorail hoist—that are
used for other tasks such as moving new fuel and ancillary equipment. See id. at 130-31
(Tr. 649:25-650:6 (Cash)).
The crane presently used at Plant Vogtle is not the original crane. The original
crane was installed in or around 1985. See ECF No. 170 at 149 (Tr. 1806:3-5 (Loftin)).
The main hook of the original crane was designed to be used “if and when [Plant Vogtle
was] able to send casks of fuel offsite,” pursuant to the Standard Contract. Id. (Tr.
1806:14-17 (Loftin)).
While using the 125-ton crane hook, plant personnel noticed that some of the bolts
on the pillow block—a component of the crane that anchored the main hoist drum to the
trolley structure—were elongating and breaking. See ECF No. 165 at 109 (Tr. 771:12-18
(Cash)); JX 34 at 5 (April 1986 deviation report noting problems with crane); JX 35 at 37 (Westinghouse Vogtle Cask Crane Problem Diagnosis & Recommendations
presentation identifying a flawed design as the likely cause of the problems). Following
an evaluation of the crane, it was de-rated from a 125-ton to 55-ton capacity. See ECF
No. 170 at 149-50 (Tr. 1806:22-1807:9 (Loftin)). In addition to problems with the bolts,
11

the crane bridge appeared to be under strain. See ECF No. 165 at 156 (Tr. 818:5-10
(Cash)) (noting “loud and uncomfortable-sounding noises” from the crane bridge when
the crane moved). At the time these issues were discovered, however, Plant Vogtle was
not yet lifting spent fuel casks, so there was minimal impact on plant operations. See
ECF No. 170 at 150 (Tr. 1807:16-20 (Loftin)). A number of repairs were undertaken
over the years, but ultimately none solved the problems. See DX 173A at 80:9-22
(Channell deposition); ECF No. 165 at 147, 167-68 (Tr. 809:10-24, 829:24-830:4
(Cash)); ECF No. 170 at 151 (Tr. 1808:7-17 (Loftin)); DX 42 at 2 (April 2010 meeting
minutes stating that “[r]epair and rehabilitation were performed but the problem would
recur.”).
Before dry storage operations could begin, Georgia Power needed to either repair
or replace the cask handling crane. Repairing the crane was the preferred course, and
was a possibility according to several vendors, but the process of repairing the crane
would involve a lengthy evaluation process that risked the plant’s ability to meet the strict
timeline for removing spent fuel from the pool. See ECF No. 165 at 109-10, 112 (Tr.
771:19-772:17, 774:21-25 (Cash)). The crane would need to lift dry storage casks by the
second quarter of 2013, and any delays “could be disastrous for dry storage.” Id. at 11011 (Tr. 772:14-773:7 (Cash)).
Georgia Power ultimately determined that replacing the crane was “the most
reliable method to have the crane available for dry storage in 2013.” Id. at 109 (Tr.
771:19-25 (Cash)); see also id. at 110-11 (Tr. 772:25-773:7 (Cash)) (noting that the plant
“had to have a fix that was guaranteed to work [the] first time”); id. at 117 (Tr. 779:1-9
(Cash)) (explaining “the risk that the schedule for repair would exceed our allowable
time”); ECF No. 170 at 152-53 (Tr. 1809:23-1810:2 (Loftin)) (testifying that “there was
no guarantee that any attempted repairs would be successful”). Georgia Power also hired
consultants from American Crane & Equipment Corporation, which issued a report
evaluating the crane, and ultimately recommended that it be replaced rather than repaired.
See JX 30 at 9 (American Crane & Equipment Corporation’s June 13, 2011 results of
their May 2011 inspection of existing cask crane bridge and runway rail system).
Georgia Power argues that in the non-breach world it would have repaired the
crane rather than replacing it, and thus seeks damages in an amount of the difference
between the repair and replacement costs. See ECF No. 224 at 95. Georgia Power spent
$9,197,893.27 to replace the crane, see ECF No. 141 at 3, and estimated the cost to repair
the crane in the non-breach world at $3,494,883, see PDX Y at 74-76 (plaintiffs’
demonstrative exhibit reproducing information from PX 139, which was excluded from
evidence in this court’s November 4, 2020 evidentiary rulings order, see ECF No. 202 at
17). Thus, the difference, according to Georgia Power’s expert, is $5,703,010. See ECF
No. 170 at 54-60 (Tr. 1711:18-1717:14 (Metcalfe)).

12

3.

Sally Port Installation

In the second round of litigation in these cases, the court found that Georgia Power
built the new sally port to accommodate dry storage activities, and that it would not have
done so in the non-breach world. See Alabama Power Co. v. United States, 119 Fed. Cl.
615, 632-34 (2014). In its 2014 opinion, the court noted that, for reasons related to both
safety and efficiency, defendant’s arguments that Georgia Power would not have built a
new sally port in the non-breach world had some logical appeal. See id. at 633. Despite
this appeal, however, the court concluded that the Standard Contract did not require
Georgia Power to pursue such a course. See id. The court explained its conclusion as
follows:
[I]nsofar as the non-breach world is one in which the parties abide by their
contractual obligations, the court finds that Georgia Power would not have
been required to install a new sally port. The government is, in fact, required
under the contract to deliver casks that are “suitable for use at the Purchaser’s
site.” Plaintiffs’ Ex. 4 at IV.B.2. And casks requiring expensive building
modifications are, by definition, not “suitable for use at the Purchaser’s site.”
Id.
Since the time that Georgia Power incurred the damages awarded by the court in
2014, it has finished installing the new sally port, which is used exclusively for dry
storage activities. See ECF No. 165 at 237-38 (Tr. 899:22-900:1 (Cash)). Georgia Power
paid $7,242,557.29 to complete the sally port construction. See ECF No. 141-1 (“Vogtle
Sally Port”).
4.

2014 Fuel Sipping Campaign

Pursuant to the HI-STORM Certificate of Compliance, Georgia Power must
determine which spent fuel assemblies meet the criteria for dry storage through a process
called fuel characterization prior to loading assemblies into the HI-STORM dry storage
casks. See ECF No. 162 at 107-08 (Tr. 107:19-108:19 (Williams)). The Standard
Contract requires that utilities characterize fuel as either intact or failed. See JX 4 at
VI.A.1(b); see also ECF No. 162 at 132-33 (Tr. 132:19-133:23 (Williams)) (agreeing that
the Standard Contract requires utilities to characterize fuel prior to pick-up). The
pertinent fuel characteristics are defined by the HI-STORM Certificate of Compliance
and include, for example, the physical characteristics of the fuel, the number of fuel rods,
the weight of the assemblies, the fuel condition, and the time that spent fuel cooled in the
pool. Id. at 107-08 (Tr. 107:19-108:19 (Williams)); id. at 108-09 (Tr. 108:24-109:5
(Williams)).

13

When evidence of possible damage is found, plant personnel must conduct
additional evaluation. One method of evaluation is called fuel sipping. See ECF No. 224
at 128. Through fuel sipping, the plant can determine whether a fuel assembly is
damaged, and therefore requires special handling before storage. See ECF No. 162 at
114-16 (Tr. 114:20-116:18 (Williams)). The HI-STORM Certificate of Compliance
does not require Georgia Power to use fuel sipping, but does require Georgia Power to
certify that the fuel is intact. See id. at 117 (Tr. 117:1-10 (Williams)). Georgia Power
uses the fuel sipping method when necessary because it believes fuel sipping is the “most
efficient and effective way to determine if there is a cladding defect within a fuel
assembly.” Id. (Tr. 117:13 (Williams)).
In 2014, plant personnel and Westinghouse Electric Company personnel reviewed
chemistry data from past reactor cycles in advance of a dry cask loading campaign and
found that it was unclear whether the pool contained damaged fuel assemblies. See id. at
110 (Tr. 110:1-18 (Williams)). To ensure that the fuel assemblies in the pool were intact,
as required by the HI-STORM Certificate of Compliance, Georgia Power characterized
the fuel by performing a fuel sipping campaign. See id. at 114 (Tr. 114:22-24
(Williams)); see also ECF No. 170 at 202 (Tr. 1859:17-25 (Loftin)).
At the time of the fuel sipping campaign, the DOE had not provided Georgia
Power with the loading or fuel characterization procedures that it would require when it
performs under the Standard Contract. See ECF No. 162 at 130 (Tr. 130:2-12
(Williams)). In addition, the DOE admits that the spent fuel may not be transportable in
the canisters at the time of the DOE’s future performance; that decision must be made
contemporaneously. See DX 104 at 50 (defendant’s June 13, 2016 response to plaintiffs’
first consolidated discovery requests).
Georgia Power incurred costs of $805,873.50 for the 2014 Westinghouse fuel
sipping campaign. See ECF No. 141-1 (“Vogtle Fuel Sipping”).
5.

Dry Storage Engineering Costs

In designing its dry storage program at Plant Vogtle, Georgia Power developed a
number of unique designs, from the preliminary to final stages, with no guidance from
the DOE. See ECF No. 164 at 108-09 (Tr. 627:17-628:25 (Cash)); ECF No. 165 at 14,
15-16 (Tr. 676:18-24, 677:16-678:13 (Cash)). Due to the complexity of the project,
Georgia Power made changes and encountered delays in the process. See ECF No. 164
at 112-13 (Tr. 631:19-632:11 (Cash)).
Mr. Jimmy Cash testified at trial as Plant Vogtle’s certified project manager for
the dry storage project. See id. at 95-96, 102 (Tr. 614:12-615:14, 621:15-18 (Cash)). Mr.
Cash testified that project changes and delays are an expected part of unique projects.
See id. at 110-11, 137-38 (Tr. 629:1-630:1, 656:24-657:25 (Cash)); ECF No. 165 at 9-10
14

(Tr. 671:25-672:6 (Cash)). According to Mr. Cash, the engineering costs associated with
changes or delays with the dry storage build out at Plant Vogtle were ordinary and
unsurprising. See id. at 19-20 (Tr. 681:18-682:11 (Cash)). He also acknowledged,
however, that the project was “time-critical,” and resulted in approximately five years of
work needing to be completed in three and a half years. Id. at 195 (Tr. 857:3-12 (Cash)).
The engineering costs associated with changes or delays amount to $1,741,478. See ECF
No. 224 at 138 (citing DDX G-10; ECF No. 174 at 101-04 (Tr. 2424:14-2427:4
(Johnson))).
F.

Plant Farley

On June 13, 1983, the government entered into a contract with Alabama Power
with regard to the disposal of fuel from Plant Farley. See ECF No. 141 at 1-2. In this
phase of litigation, Alabama Power seeks damages to cover costs it alleges were incurred,
due to the government’s partial breach of the Standard Contract from January 1, 2011,
through December 31, 2014. See ECF No. 17 at 1; ECF No. 141 at 2.
During that time, Alabama Power incurred costs related to Plant Farley’s dry cask
storage program including damages for price adjustments to is contract with Holtec as a
result of excess inventory, and additional costs related to the procurement and loading of
Holtec casks. See ECF No. 224 at 39-54. Alabama Power’s alleged damages for these
categories are as follows:
Contract Price Adjustment:
Costs Related to Procurement and Loading
Seismic Restraint Hardware:
Holtec Storage Fees:
Delay Charges:
Total:

$742,903.92
$1,007,358.28
$274,495.57
$1,964,500.00
____________
$3,989,257.77

See ECF No. 224 at 26. The court will address the pertinent facts for each category, in
turn.
1.

Contract Price Adjustment

Pursuant to Alabama Power’s contract with Holtec, it must order storage casks
well in advance of—at least two years before—the loading campaign in which they will
be used. See ECF No. 163 at 60-61, 61-62 (Tr. 274:7-275:3, 275:17-276:9 (Channell));
see also id. at 54-55 (Tr. 268:21-269:15 (Channell) (testifying that plaintiffs generally
schedule loading campaigns two years in advance)). Alabama Power intended to conduct
loading campaigns at Plant Farley in 2009, 2011, and 2012. See id. at 55 (Tr. 269:16-22
15

(Channell)). The 2009 campaign, in which Alabama Power planned to load seven casks,
was canceled due to incomplete but necessary work on the forced helium dehydration
system and the press of other work at the plant. See id. at 55-56, 62 (Tr. 269:23-270:12,
276:13-14 (Channell)).
At the time of cancellation, Alabama Power had already ordered casks for all three
loading campaigns, twelve of which had not yet been delivered. See id. at 56 (Tr.
270:13-24 (Channell)). Alabama Power loaded two casks in 2010, but due to the 2009
campaign cancellation, the plant had an excess of casks on site. See id. at 65 (Tr. 279:2024 (Channell)). Alabama Power worked with Holtec to delay the delivery schedule of the
remaining twelve casks, and as a result, incurred $742,903.92 in price increases under its
contract. See id. at 66-69 (Tr. 280:17-283:2 (Channell)); see also ECF No. 141 at 3-4;
ECF No. 141-1. The delay also had the effect of “free[ing] up capital resources that
[Alabama Power] would have had to otherwise commit unnecessarily,” ECF No. 163 at
70 (Tr. 284:21-24 (Channell)), which limited costs passed through to ratepayers at that
time, see id. at 72 (Tr. 286:1-3 (Channell)).
2.

Costs Related to Procurement and Loading

After canceling the 2009 loading campaign, Plant Farley loaded two HI-STORM
systems in 2010. See id. at 73-74 (Tr. 287:19-288:1 (Channell)). The plant then
conducted another loading campaign in 2011 in order to avoid an adverse impact on
operations due to small spent fuel pool margins. See id. at 113, 145-46 (Tr. 327:4-7,
359:10-360:11 (Channell)); see also id. at 220 (Tr. 434:4-8 (Channell)) (testifying that the
plant would not have been under the “same pressure” to load casks in 2011 had the 2009
campaign gone forward”); DX 173A at 146:24-147:1 (Mr. Channell testifying that when
the 2009 campaign was canceled, “it was already known that [Plant Farley] would lose
core offload capability” as a result). The loading campaign was scheduled to begin in
late February 2011. See ECF No. 163 at 74 (Tr. 288:6-11 (Channell)). Necessary
modifications to the forced helium dehydration system caused a two-week delay, but the
campaign ultimately began in March 2011. See ECF No. 163 at 74, 75, 76 (Tr. 288:1221, 289:10-14, 290:7-19 (Channell)).
As the loading campaign began, Alabama Power received a copy of a report issued
by the Nuclear Regulatory Commission (NRC) to the Perry Nuclear Plant in Ohio. See
JX 41 (NRC report). The NRC had determined that the configuration at Plant Perry
required lateral seismic restraints to ensure the stacked equipment did not tip. See id. at
4. Despite the fact that the Perry Plant used the same stack-up configuration during
loading as Plant Farley, Alabama Power concluded that the new requirement did not
apply to Plant Farley, and continued with the loading campaign. See ECF No. 163 at 8081, 85 (Tr. 294:25-295:2; 299:19-20 (Channell)). Shortly thereafter, the NRC notified
Alabama Power that it must stop the loading campaign or risk the issuance of a willful
violation of its regulations. See id. at 85 (Tr. 299:21-24 (Channell)).
16

Plant Farley immediately stopped the loading campaign. See id. at 87 (Tr. 301:910). As a result of this series of events, the plant incurred significant costs related to the
delay and the procurement of seismic restraints.
a.

Seismic Restraint Hardware

As a result of the conclusions reached by the NRC regarding the need for seismic
restraints, in April 2011, Alabama Power sent a letter to the NRC explaining its
disagreement with the NRC’s conclusions that a freestanding stack-up configuration was
not permitted absent prior approval pursuant to 10 C.F.R. Part 72. See PX 77. At the
same time, however, Alabama Power proceeded with designing and procuring adequate
seismic restraints to hedge against the possibility that the disagreement with the NRC
would not be resolved before loading became imperative to the operation of Plant Farley.
See ECF No. 163 at 88, 95, 97-98, 147, 150-155, 158 (Tr. 302:13-18, 309:20-22, 311:23312:9, 361:14-25, 364:6-369:1, 372:18-25 (Channell)).
In June 2011, the NRC responded to Alabama Power’s letter and provided certain
conditions under which Plant Farley would be permitted to continue loading without
seismic restraints. See JX 25 (plaintiffs’ April 8, 2011 letter addressing the NRC’s
response to Region III technical assistance request). Alabama Power concluded that such
conditions were met, and continued the loading campaign without the restraints. See
ECF No. 163 at 107, 112 (Tr. 321:5-13, 326:6-22 (Channell)). Due to the delay in
connection with resolving the NRC’s concerns, Plant Farley ultimately loaded three casks
rather than the seven or eight it had initially planned to load. See id. at 159 (Tr. 373:8-20
(Channell)). Alabama Power incurred $1,007,358.28 in design and fabrication costs
related to the seismic restraints hardware that it ultimately did not need. See ECF No.
141-1.
b.

Holtec Storage Fees

Because Plant Farley was only able to load three casks in 2011 rather than seven
or eight, a number of unused HI-STORMs remained stored on the fabrication pad at the
plant. See ECF No. 163 at 159-60 (Tr. 373:21-374:11 (Channell)). Alabama Power,
therefore, could not store the additional casks it had ordered for the previously scheduled
2012 loading campaign, and delayed the delivery until 2013 and paid Holtec to store the
casks until then. See id. at 161 (Tr. 375:5-12 (Channell)). The storage costs amounted to
$274,495.57. See ECF No. 141-1.
c.

Delay Charges

Plant Farley incurred delay charges related to the 2011 loading campaign for two
reasons. First, the loading campaign was initially scheduled to begin on February 28,
17

2011, but was delayed until March 15, 2011, as a result of necessary work to the forced
helium dehydration system. See ECF No. 163 at 74 (Tr. 288:6-289:19 (Channell)).
Alabama Power wanted to complete the work while the loading campaign began, but
Holtec objected to that plan and insisted that the work be done first. See id. at 75 (Tr.
289:10-14 (Channell)); see also id. at 209 (Tr. 423:13-21 (Channell)) (noting that while
Holtec insisted that the forced helium dehydration skid work was done prior to loading, it
was Alabama Power’s responsibility to complete the work). This delay resulted in an
upward price adjustment on Alabama Power’s contract with Holtec in an amount of
$227,370. See id. at 213 (Tr. 427:4-7 (Channell)); DX 61.
Second, after the loading campaign began, the NRC’s concerns caused further
delay. See ECF No. 163 at 87 (Tr. 301:5-10 (Channell)). Loading casks in 2011 was
“absolutely essential” ahead of planned outages in 2011 and 2012. See id. at 113 (Tr.
327:4-7 (Channell)). If Plant Farley were unable to load casks in 2011, it would have
been forced to take actions that would have extended the outages, thereby either
decreasing revenue or increasing generation costs. See id. at 155-57 (Tr. 369:24-371:19
(Channell)). Because the loading campaign was critical, Alabama Power believed that it
needed to ensure that the crew scheduled to conduct it would be available as soon as it
could proceed. See id. at 170-71 (Tr. 384:23-385:7 (Channell)). As such, Alabama
Power retained the crew on-site while it resolved the NRC’s concerns to prevent that
crew from being reassigned to another campaign and becoming unavailable when Plant
Farley was ready to proceed with loading. See id.; see also id. at 171-72 (Tr. 385:13386:4 (Channell)). Alabama Power’s concern that releasing the crew would unduly
extend the delay was not confirmed, but rather was a “general understanding” of the state
of the industry. See DX 173A at 171:24-172:7. The crew was ultimately retained but
idle for approximately three months. See ECF No. 224 at 53. Combined with the initial
delay costs, Alabama Power incurred delay-related costs of $1,964,500. See ECF No.
141-1.
G.

Fleet Issues

Plaintiffs also claim damages that are not specific to one plant, including: (1)
internal labor costs for daily vent inspections; and (2) instrument tube tie rod (ITTR)
repairs.
1.

Internal Labor Costs for Daily Vent Inspections

Plaintiffs store spent nuclear fuel in MPCs, which are in turn stored in HI-STORM
100 overpacks on independent spent fuel storage installation (ISFSI) pads. See ECF No.
224 at 171. Each overpack has four vents to allow air to circulate around the MPC and
regulate temperature. See ECF No. 163 at 266 (Tr. 480:23-25 (Martin)); id. at 18-19 (Tr.
232:16-233:8 (Channell)). The technical specifications require that plaintiffs monitor the
vents for proper cooling and airflow at least once every twenty-four hours. See id. at
18

179, 184 (Tr. 393:5-13, 398:7-15 (Channell)). Although such monitoring may be
accomplished either by visual inspection or electronic monitoring, plaintiffs conduct
visual inspections because they consider such inspections to be more reliable. See id. at
180-81 (Tr. 394:16-395:10 (Channell)).
Plant personnel perform the daily visual inspections of the overpacks as part of
outside rounds at each site. See id. at 181 (Tr. 395:8-15 (Channell)). While the outside
rounds included other tasks, the vent inspections involved a defined process, which Mr.
Cale Martin, plaintiffs’ Project Cost Analyst Lead, explained as follows:
[W]hen you do a vent inspection, it is not just the time in the ISFSI, observing
the vents to make sure they’re clear of blockage. There are special
characteristics of a nuclear power plant that make you sign into radiation
work permits. There’s more than just being inside the ISFSI, the independent
spent fuel storage installation. There’s a process of getting there, going
through the right processes, to be able to access the ISFSI, and then doing
the vent inspection and then going back through the back end of the process,
to be able to perform the vent inspection.
Id. at 269-70 (Tr. 483:25-484:10 (Martin)). Despite this defined process, however, plant
personnel who conduct the inspections do not track the time spent doing so separately
from the other tasks conducted during rounds. See id. at 183 (Tr. 397:7-14 (Channell)).
At Plant Vogtle and Plant Farley, the inspections were performed twice per day, and at
Plant Hatch, the inspections were performed once per day. See id. at 181-82, 184-85 (Tr.
395:16-396:2, 398:16-399:5 (Channell)).
Because the time is not separately tracked, plaintiffs estimated the costs associated
with the vent inspections. Mr. Channell conferred with the plant personnel who perform
the inspections and they estimated that the inspections take “roughly 45 minutes per day
to go through the process of getting the paperwork, going out the ISFSI, doing the
inspections, completing the paperwork, and moving on to the next test.” Id. at 186 (Tr.
400:9-19 (Channell)). Based on his knowledge of plant operations and geography, Mr.
Channell considered the forty-five-minute estimate to be “reasonable.” Id. at 198-99 (Tr.
412:11-413:3 (Channell)).
Mr. Martin also personally observed vent inspections at each plant and tracked the
required time. See id. at 265 (Tr. 479:14-21 (Martin)); see also PX 141 (Sept. 7, 2018
Farley Vent Inspection Observation), PX 143 (undated Hatch inspection observation), PX
144 (July 12, 2018 Vogtle Vent Inspection Walkdown), and PX 145 (HI-STORM Vent
Inspection Observations). The process observed by Mr. Martin included: (1) visiting the
Radiation Protection office to collect safety equipment and required paperwork, see ECF
No. 163 at 281, 282 (Tr. 495:2-24, 496:13-17) (Martin)); ECF No. 164 at 14-16, 27, 30
(Tr. 533:19-534:4, 534:20-535:5, 546:3-12; 549:1-4 (Martin)); (2) travelling to the ISFSI
19

at each plant, on foot at Plants Vogtle and Farley, see id. at 19, 28 (Tr. 538:5-10, 547:1113 (Martin)), and by vehicle at Plant Hatch, 8 see ECF No. 163 at 289 (Tr. 503:5-13
(Martin)); (3) visually inspecting the casks, see id. at 294 (Tr. 508:2-11) (Martin)); ECF
No. 164 at 22, 29 (Tr. 541:4-12, 548:7-11 (Martin)); (4) conducting a check for
contamination upon exiting the ISFSI pad, see PX 145 at 1-3; (5) returning to the
Radiation Protection office, id.; and (6) passing through personnel contamination
monitors in the Radiation Protection offices, see id.; ECF No. 163 at 296 (Tr. 510:5-18
(Martin)).
The plant personnel who performed inspections at Plant Hatch earned hourly rates
during the damages period at issue as follows: $33.56 in 2011; $36.37 in 2012; $37.28 in
2013; and $38.40 in 2014. See PX 138 at 4. The plant personnel who performed
inspections at Plant Vogtle earned hourly rates during the damages period at issue as
follows: $33.56 in 2011; $36.37 in 2012; $37.28 in 2013; and $38.40 in 2014. See id. at
5. And the plant personnel who performed inspections at Plant Farley earned hourly rates
during the damages period at issue as follows: $32.15 in 2011; $36.37 in 2012; $37.28 in
2013; and $38.40 in 2014. See id. at 3.
Plaintiffs estimate that they have incurred damages in an amount of $143,189.44
for vent inspections, divided between plants as follows: (1) $39,860.74 at Plant Hatch;
(2) $24,379.20 at Plant Vogtle; and (3) $78,949.50 at Plant Farley. See ECF No. 224 at
144 (citing ECF No. 170 at 65 (Tr. 1722:2-13 (Metcalfe))). Plaintiffs’ expert Mr.
Kenneth Metcalfe, testified that:
to arrive at the sum total of damages, . . .[he] took the number of hours that
Plaintiffs estimated it took to perform vent inspection activities each time
they were performed and then multiplied that number by (1) the number of
inspections per day and (2) the number of days per year to arrive at the
number of manhours per year Plaintiff[s] estimated it took to perform vent
inspection activities at each of their plants.
ECF No. 224 at 144 (citing ECF No. 170 at 93-94 (Tr. 1750:13-1751:6) (Metcalfe))).
That number was then multiplied by the applicable hourly rate for each plant in each
year. See id. (citing ECF No. 170 at 94 (Tr. 1751:7-15 (Metcalfe))).
During his inspection observations, Mr. Martin observed that vent inspections at
Plant Hatch took 1.17 hours, at Plant Vogtle took 37 minutes, and at Plant Farley took 40
minutes. See ECF No. 164 at 38-39 (Tr. 557:5-7, 558:1-3, 558:7-9 (Martin)). Based on
these estimates, Mr. Martin calculated the cost of vent inspections at the three plants for
8

The more remote ISFSI at Plant Hatch required additional security measures both before
and after inspections. See ECF No. 163 at 290, 294, 295 (Tr. 504:18-20, 508:17-25, 509:13-19
(Martin)); see also PX 145 at 1.

20

the damages period at $184,000. See id. at 40 (Tr. 559:8-17 (Martin)). According to Mr.
Channell, however, plaintiffs chose not to revise their original estimates so as to “not be
at risk of over-claiming what the time was.” ECF No. 163 at 200 (Tr. 414:23-25
(Channell)).
2.

Instrument Tube Tie Rod Repairs

In May 2001, Westinghouse informed plaintiffs that certain fuel assemblies
present at Plants Farley and Vogtle had a design defect. See ECF No. 162 at 143 (Tr.
143:6-17 (Williams)); PX 116 (Westinghouse letters to plaintiffs). Because the defect
was first identified at the North Anna Nuclear Generating Station, assemblies with this
defect are referred to as “North Anna fuel.” See ECF No. 169 at 7 (Tr. 1380:15-18
(Supko)). Westinghouse also notified plaintiffs that it had developed a Nozzleless
Handling Tool (NHT) which could be used with the North Anna fuel:
Westinghouse has designed tools to handle 14x14, 15x15 or 17x17 fuel
assemblies that do not have a top nozzle due to difficulties experienced
during fuel repair. This tool can also be used to handle assemblies where the
top nozzle is still present, yet the attachment of the top nozzle to the fuel
assembly is suspect . . . Refinements of this tool’s design for the more
frequent use anticipated with this nozzle separation issue are planned.
PX 116 at 11.
Plaintiffs inspected their North Anna fuel in 2002, 2003, and 2007. See ECF No.
162 at 148 (Tr. 148:5-6 (Williams)). They used the NHT in the 2007 inspections. See id.
at 149-50 (Tr. 149:10-150:12 (Williams)). “While using the NHT in 2007, [plaintiffs’]
personnel had to perform lengthy inspections of [part of the NHT], which had some
associated radiation dose” with it. ECF No. 224 at 153 (citing ECF No. 162 at 149 (Tr.
149:10-15 (Williams))).
In 2008, Plant Farley began repairing the ITTR on the North Anna fuel in order to
better facilitate handling assemblies with a standard fuel handling tool rather than the
NHT. See ECF No. 162 at 135, 150 (Tr. 135:9-16, 150:16-17 (Williams)). Plaintiffs
were concerned about the ability to move assemblies before and after refueling outages to
ensure that plaintiffs were meeting “certain criticality (or heat load) requirements that are
required by its NRC licenses.” ECF No. 224 at 154 (citing ECF No. 162 at 184 (Tr.
184:2-7 (Williams)), ECF No. 169 at 129 (Tr. 1502:6-21 (Supko))). Because the DOE
had failed to perform under the Standard Contract, the pools were full, and it became
very difficult to . . . manage the spent fuel pools at the plants.” Id. at 155 (citing ECF No.
162 at 150-51 (Tr. 150:24-151:3 (Williams))). This resulted in the need to move fuel
frequently, which lead Plant Farley to make permanent ITTR repairs. See id. The
permanent repairs improve the ability to handle the fuel both in the pools, when loaded
21

into dry casks, and potentially back into the pools when the DOE does perform. See id.
(citing ECF No. 162 at 158 (Tr. at 158:4-11 (Williams))). For the same reasons, Plant
Vogtle decided to make permanent ITTR repairs. See id. at 156 (citing ECF No. 162 at
159-60 (Tr. 159:17-21, 160:2-12 (Williams))).
In March 2009, Westinghouse recommended that utilities discontinue use of the
NHT in their spent fuel pools pending a technical review, see id. at 155 (citing ECF No.
162 at 165 (Tr. 165:10-15 (Williams))), and on July 2, 2009, Westinghouse issued a
technical bulletin in which it recommended that utilities stop using the NHT in operations
such as dry cask loading, see JX 21.
After the inspections, Plant Farley loaded 148 assemblies suspected of having
defects into dry storage. See ECF No. 162 at 174 (Tr. 174:5-9 (Williams)). Plant Farley
prioritized loading North Anna fuel to avoid stress corrosion cracking that could
contaminate the pool, and to avoid the need for continued inspection and moving of
potentially damaged fuel. See id. at 183 (Tr. 183:2-13 (Williams)). Plant Farley had 980
suspect assemblies, see id. at 170 (Tr. 170:23 (Williams)), and Plant Vogtle had 193, see
id. at 171 (Tr. 171:3 (Williams)). Plaintiffs argue that, in the non-breach world, they
would have prioritized loading all suspect assemblies to the government and that they had
sufficient allocations to do so prior to March 2009. See ECF No. 224 at 159-60; see also
ECF No. 162 at 187 (Tr. 187:14-24 (Williams)) (asserting that plaintiffs had the authority
to decide which fuel was loaded and when).
At Plant Farley, 299 suspect assemblies were repaired with ITTRs during the
claim period at issue, at a cost of $1,047,905.50. See id. at 174, 196 (Tr. 174:5-9,
174:21-24, 196:14-16 (Williams)); ECF No. 169 at 9 (Tr. 1382:10-13 (Supko)); ECF No.
170 at 69 (Tr. 1726:22-24 (Metcalfe)); ECF No. 141-1. At Plant Vogtle, 193 assemblies
were repaired with ITTRs during the claim period at issue, at a cost of $1,952,708. See
ECF No. 162 at 175 (Tr. 175:9-12 (Williams)); ECF No. 170 at 69 (Tr. 1726:22-24
(Metcalfe)); ECF No. 141-1. The total claim for ITTR repairs, then, is $3,000,613.50.
See ECF No. 141-1.
II.

Legal Standards

Under traditional contract law principles, which govern in spent nuclear fuel
disputes, the remedy for a breach “is damages sufficient to place the injured party in as
good a position as it would have been had the breaching party fully performed.” Indiana
Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005).
Specifically, “[d]amages for a breach of contract are recoverable where: (1) the damages
were reasonably foreseeable by the breaching party at the time of contracting; (2) the
breach is a substantial causal factor in the damages; and (3) the damages are shown with
reasonable certainty.” Id. (citing Energy Capital Corp. v. United States, 302 F.3d 1314,
1320 (Fed. Cir. 2002)). A plaintiff must demonstrate each of these requirements by a
22

preponderance of the evidence. See Entergy Nuclear Indian Point 2 v. United States, 128
Fed. Cl. 526, 534 (2016); Bice v. United States, 61 Fed. Cl. 420, 435 (2004) (“In civil
adjudication, courts generally impose a burden of persuasion of ‘preponderance of the
evidence,’ understood as simply more likely than not.”)
To establish that damages were reasonably foreseeable, “a plaintiff must show that
the type of damages are foreseeable as well as the fact of damage.” See Vermont Yankee
Nuclear Power Corp. v. Entergy Nuclear Vermont Yankee, 683 F.3d 1330, 1344 (Fed.
Cir. 2012). As the Federal Circuit has explained:
Although this does not require “actual foresight” that the breach will cause a
“specific injury or a particular amount in money[,] . . . the injury actually
suffered [still] must be one of a kind that the defendant had reason to foresee
and of an amount that is not beyond the bounds of reasonable prediction.”
Id. (citing Joseph M. Perillo, 11 Corbin on Contracts § 56.7 at 108 (rev. ed. 2005)
(emphasis added)).
Plaintiffs must then show that the government’s breach was a “substantial causal
factor” in the damages they seek to recover. Indiana Michigan, 422 F.3d at 1373.
Although the but-for test is also an acceptable causation standard, trial courts have
discretion to decide which standard should be applied in a particular case. Yankee
Atomic Elec. Co. v. United States, 536 F.3d 1268, 1272 (Fed. Cir. 2008) (citing Citizens
Fed. Bank v. United States, 474 F.3d 1314, 1318 (Fed. Cir. 2007)). In the first and
second phases of this litigation, the court opted to apply the substantial factor test and
will do so in this third phase as well. See S. Nuclear, 77 Fed. Cl. at 405; Alabama Power,
119 Fed. Cl. at 624.
As part of their causation argument, plaintiffs must present a “comparison between
the breach and non-breach worlds.” Yankee Atomic, 536 F.3d at 1273. The plaintiff
bears the burden of proving “the extent to which [their] incurred costs differ from the
costs [they] would have incurred in the non-breach world.” Energy Nw. v. United States,
641 F.3d 1300, 1306 (Fed. Cir. 2011).
And, although damages must be “shown with reasonable certainty,” they need not
be “ascertainable with absolute exactness or mathematical precision,” but “recovery for
speculative damages is precluded.” Indiana Michigan, 422 F.3d at 1373 (citations
omitted). Enough evidence to allow the court to make “a fair and reasonable
approximation” is required. Bluebonnet Sav. Bank v. United States, 266 F.3d 1348, 1355
(Fed. Cir. 2001) (citations omitted).
In addition to these basic principles, a non-breaching party is obligated to mitigate
its damages when “a reasonable person, in light of the known facts and circumstances,
23

would have taken steps to avoid damage.” Indiana Michigan, 422 F.3d at 1375. The
Circuit has explicitly stated that, in order to recover mitigation damages, the mitigating
party must “prove foreseeability, causation, and reasonableness.” Id. at 1376. But when
mitigation efforts are “reasonable, foreseeable, and caused by the Government’s partial
breach, their ultimate success and usage is irrelevant.” Yankee Atomic, 536 F.3d at
1276.
After plaintiffs make their case for mitigation damages, however, “the defendant
may eliminate or reduce the alleged damages by showing either that the ‘[p]laintffs did
not undertake reasonable mitigation efforts, or that the efforts they did undertake were
unreasonable.’” Entergy Nuclear Vermont Yankee, LLC v. United States, 95 Fed. Cl.
160, 184 (2010) (citing Carolina Power & Light Co. v. United States, 82 Fed. Cl. 23, 44
(2008), rev’d on other grounds, Vermont Yankee, 683 F.3d 1330 (Fed. Cir. 2012).
And finally, defendant may secure a reduction in the damages it owes if it
demonstrates that plaintiffs entirely avoided certain costs as a result of its breach, but not
if such costs were “merely deferred.” Carolina Power & Light Co. v. United States, 573
F.3d 1271, 1277 (Fed. Cir. 2009) (denying the government’s requested reduction because
“[p]laintiffs have not avoided the costs of loading. Rather, they have merely deferred
these costs.”).
III.

Analysis and Conclusions of Law

In this phase of the litigation, plaintiffs have alleged entitlement to damages in the
amount of $177,571,872. See ECF No. 224 at 12. Of that total, the court has previously
determined that Georgia Power Company is entitled to recover $111,959,799 on
undisputed claims related to Plants Hatch and Vogtle, and that Alabama Power Company
is entitled to recover $31,193,958 on undisputed claims related to Plant Farley, for a total
of $143,153,757. See ECF No. 92 at 9. The court will analyze plaintiffs’ remaining
claims in six broad categories: (1) damages associated with Plant Hatch; (2) damages
associated with Plant Vogtle; (3) damages associated with Plant Farley; (4) damages
related to all three plants; (5) reduction for the improper allocation of indirect costs; and
(6) defendant’s offset claim.
A.

Plant Hatch’s Holtec Mating Device Repairs

Georgia Power argues that defendant’s breach resulted in the need for a mating
device at Plant Hatch to facilitate dry storage, and as a result, it is entitled to recover for
the cost of repairing the mating device. See ECF No. 224 at 35-39. As noted above, the
“mating device is a piece of equipment that facilitates the transfer of the [MPC] from the
HI-TRAC transfer cask into the HI-STORM overpack.” Id. at 35-36 (citing ECF No. 163
at 23 (Tr. 237:6-9 (Channell))). To accomplish this, the mating device sits between the
HI-STORM overpack and the HI-TRAC transfer cask. See ECF No. 163 at 23 (Tr.
24

237:18-21 (Channell)). The device required repairs because, while conducting a practice
loading campaign at Plant Hatch, Georgia Power discovered that Holtec had
manufactured a mating device that was too narrow, and as a result, had to be ground
down to fit properly on the HI-TRAC casks. See id. at 174, 175 (Tr. 388:4-21, 389:1-22
(Channell)). The repairs to the mating device cost $52,014.44. See ECF No. 141-1.
According to defendant, the repair costs were not foreseeable, and defendant’s
partial breach of the Standard Contract did not proximately cause the need for repair. See
ECF No. 229 at 19-24. Defendant’s argument is premised on the idea that “the proximate
cause of plaintiff[’s] claimed costs was Holtec’s flawed design and manufacture of the
mating device,” rather than defendant’s breach. Id. at 20. Defendant insists that “[e]ven
if plaintiffs are correct that they never would have needed a mating device but for DOE’s
butbreach, the causal chain between the breach and plaintiff[’s] claimed costs was broken
by Holtec’s independent mistake.” Id. To find otherwise, defendant suggests, would be
to create a world in which “any post-breach costs that have any nexus to dry storage—
however attenuated—is per se recoverable.” Id. at 19.
The court disagrees with the dramatic implication of defendant’s argument—that
by awarding damages for the mating device repairs in this case the court would create a
category of damages that is per se recoverable. To the contrary, as with all categories of
damages, Georgia Power must demonstrate that the damage was reasonably foreseeable,
that defendant’s breach was a substantial causal factor, and that damages are reasonably
certain. See Indiana Michigan, 422 F.3d at 1373.
With regard to reasonable foreseeability, the Federal Circuit has noted that it is
only the “kind” of damage the defendant must be able to foresee, and that the amount is
“not beyond the bounds of reasonable prediction.” Vermont Yankee, 683 F.3d at 1344.
(citation omitted). Defendant contends that “it was not reasonably foreseeable to DOE
that in the event of a breach, a third-party would mis-manufacture its own specialty
product, necessitating the sort of remedial work at issue here.” ECF No. 229 at 20. This
court’s precedent does not support defendant’s position.
In Yankee Atomic, this court permitted nuclear utilities to recover damages for the
DOE’s breach of the Standard Contract when the utilities incurred increased construction
costs after they terminated contractors hired to build ISFSIs and completed the work
themselves. See Yankee Atomic Elec. Co. v. United States, 113 Fed. Cl. 323, 333
(2013). The court reasoned that, even though the increased construction costs were
indirectly caused by the DOE’s breach, the costs were recoverable because they were
nonetheless traceable to the breach with reasonable certainty. See id. at 334 (finding that
the damages were sufficiently traceable to the breach because plaintiffs hired the
contractors “to assist with ISFSI construction, which would have been entirely
unnecessary if the government had performed its obligations under the contract”).
25

Defendant urges the court to distinguish the holding in Yankee Atomic, arguing
that unlike in this case, Yankee Atomic involved increased construction costs that were
“commonplace” and thus reasonably foreseeable. 9 ECF No. 229 at 21. Here, defendant
claims that the “DOE could not have reasonably foreseen in 1983 . . . that a contractor
would mis-manufacture its own specialized mating device.” Id. Defendant argues that
this case is more like Duke Energy, in which the court denied plaintiff damages caused
by its own conduct. See Duke Energy Progress v. United States, 135 Fed. Cl. 279, 289
(2017).
In Duke Energy, the court denied plaintiff’s request to recover damages caused by
plaintiff’s own conduct for two reasons. First, the damage—delamination in the utility’s
containment building—was caused by plaintiff’s unforeseeable and unusual decision to
manage the work itself rather than hiring a professional engineering firm, as was industry
practice. See id. And second, plaintiff admitted that the “DOE’s performance had
nothing to do with this project or the resulting delamination.” Id. Neither of these
reasons is applicable in this case. Georgia Power did hire a professional firm to assist
with the work—Holtec—and it was that professional firm that made the error. See ECF
No. 163 at 174, 175 (Tr. 388:4-21, 389:1-22 (Channell)). Moreover, the mating device is
integrally related to the dry storage operations, and therefore, very much a part of the
effort to address defendant’s performance failure. See id. at 23 (Tr. 237:6-21)
(Channell).
The court further notes that, defendant’s narrow characterization of the type of
damage at issue is contrary to the standard that the Federal Circuit has articulated, which
requires only that the injury be “one of a kind that the defendant had reason to foresee.”
Vermont Yankee, 683 F.3d at 1344. Defendant argues that the DOE could not have
foreseen that “a contractor would mis-manufacture its own specialized mating device.”
ECF No. 229 at 21. The Federal Circuit’s instruction does not require such precision.
Dry storage is a complex undertaking, and plaintiff appropriately hired a professional
firm to manufacture equipment it needed to facilitate the work. See ECF No. 163 at 174,
175 (Tr. 388:4-21, 389:1-22 (Channell)). In the court’s view, a mistake in the course of
manufacturing necessary equipment is well within the reasonably foreseeable realm, even
if defendant could not specifically predict that “a contractor would mis-manufacture its
own specialized mating device.” ECF No. 229 at 21.
The final two requirements for recovery are likewise met. The DOE’s breach was
a substantial causal factor in the repair damages. See Indiana Michigan, 422 F.3d at
1373. Absent the DOE’s failure to perform, Georgia Power would not have undertaken
dry storage activities, and thus, would not have needed the mating device. See ECF No.

9

Notably, defendant offers no authority to assist the court in defining what is
“commonplace” in this context. See ECF No. 229 at 21.

26

163 at 23 (Tr. 237:6-21) (Channell). In addition, the parties have stipulated to the cost of
the repairs. See ECF No. 141-1. As such, the damages are reasonably certain.
For these reasons, Georgia Power is entitled to recover the costs for repairing the
mating device at Plant Hatch, in the amount of $52,014.44. See ECF No. 141-1 (“Hatch
Holtec Mating Device Repair”).
B.

Plant Vogtle’s Dry Storage Program

Georgia Power claims five categories of damages related to Plant Vogtle’s dry
storage program in this round of litigation including: (1) modifications to the fuel
handling building; (2) overhead cask handling crane; (3) sally port; (4) 2014 fuel sipping
campaign; and (5) dry storage engineering. See ECF No. 224 at 55-140. Georgia
Power’s alleged damages for these categories are as follows:
Fuel Handling Building Modifications:
Overhead Cask Handling Crane:
Sally Port:
2014 Fuel Sipping Campaign:
Dry Storage Engineering:

$6,318,677.40
$5,703,010.27
$7,242,557.29
$805,873.50
$1,741,478.00
____________
Total:

$21,811,596.46

See ECF No. 224 at 26. The court will address each category, in turn.
1.

Modifications to the Fuel Handling Building

Georgia Power made a series of modifications to the Fuel Handling Building at
Plant Vogtle during the damages period at issue in this case, including to the: (1) cask
loading pit pedestal; (2) cask loading pit seismic restraint system; (3) cask loading pit
temporary walkway; (4) cask washdown area pedestal; (5) cask washdown area seismic
restraints; (6) cask washdown area scaffolding staircase; (7) cask washdown area stepover grating; (8) cask washdown area work platform; (9) cask washdown area electrical
receptacles; (10) lift yoke stand; (11) lift yoke storage arm; (12) concrete pad outside fuel
handling building; (13) small bore piping for helium in fuel handling building; (14) cask
washdown area demineralized water system; (15) boron concentration analysis; and (16)
removable cask loading pit lights. See ECF No. 224 at 55-92.
(a)

Cask Loading Pit Pedestal

During the cask loading process, the HI-TRAC transfer casks sit on a customdesigned pedestal in the cask loading pit to ensure that the casks are at the appropriate
27

height. See ECF No. 165 at 58, 59, 60 (Tr. 720:5-24, 721:21-23, 722:1-9 (Cash)); see
also ECF No. 168 at 99 (Tr. 1284:6-15 (Supko)). The pedestal was made to specifically
match the design of the HI-TRAC casks. See id. at 100-01 (Tr. 1285:3-1286:5 (Supko)).
Defendant does not dispute that the pedestal cost Georgia Power $275,000. See ECF No.
141-1 (“Cask Loading Pit Pedestal”).
The dispute here is not whether the pedestal was necessary, or whether the cost
was appropriate; rather, defendant argues that Georgia Power has not demonstrated that
“if DOE had performed as required, the pedestal would not have been needed.” ECF No.
229 at 38 (citing Energy Nw., 641 F.3d at 1307 (“If a cost would have been incurred even
in the non-breach world, it is not recoverable.”)). The DOE has not identified the cask it
would have used in the non-breach world, but Mr. Warren Brewer, defendant’s technical
expert, testified at trial that it is “reasonable to assume that ‘something like the BR100’—one of the large rail casks being developed by DOE in the early 1990s—would
have been used for performance.” Id. at 39 (quoting ECF No. 173 at 52-53 (Tr. 2109:172110:5 (Brewer)). Mr. Brewer also testified that the government would not have used the
HI-TRAC casks used by Georgia Power. See ECF No. 173 at 195 (Tr. 2252:15-22
(Brewer)).
Defendant contends that Georgia Power should not recover for the cost of the
pedestal because the HI-TRAC casks and the BR-100 casks are similar in size, and thus a
cask that is “something like the BR-100” would require a pedestal of similar height to the
pedestal purchased by Georgia Power. See ECF No. 229 at 39; ECF No. 173 at 52-53
(Tr. 2109:17-2110:5 (Brewer)). Mr. Brewer testified at trial, however, that Georgia
Power might need to buy a different pedestal when the DOE eventually performs. See
ECF No. 173 at 59-60 (Tr. 2116:7-2117:3 (Brewer)).
As Georgia Power correctly notes, defendant’s “challenge to this pedestal is pure
speculation about the unknown dimensions of the future DOE cask and future pedestal
costs.” ECF No. 224 at 59. While it is true that Georgia Power bears the burden of
proving “the extent to which [its] incurred costs differ from the costs [it] would have
incurred in the non-breach world,” Energy Nw., 641 F.3d at 1306, its inability to make
that comparison is a direct result of the DOE’s breach and its subsequent failure to
identify the cask it would have used or intends to use in the future. See Locke v. United
States, 151 Ct. Cl. 262, 267 (1960) (“The defendant who has wrongfully broken a
contract should not be permitted to reap advantage from his own wrong by insisting on
proof which by reason of his breach is unobtainable.”).
Accordingly, Georgia Power is entitled to recover $275,000 for the cost of the
cask loading pit pedestal.

28

(b)

Cask Loading Pit Seismic Restraint System

Plant Vogtle also purchased a seismic restraint system for the cask loading pit
because the plant is in an “active seismic zone,” and it is “part of [the plant’s] process” to
evaluate all equipment for earthquake safety. ECF No. 164 at 129 (Tr. 648:13-15
(Cash)); ECF No. 165 at 69 (Tr. 731:6-16 (Cash)). Mr. Brewer agreed that the seismic
restraints were necessary. See ECF No. 173 at 60 (Tr. 2117:4-23 (Brewer)).
Like the pedestal, the seismic restraint system was custom-designed for the HITRAC casks at Plant Vogtle. See ECF No. 165 at 71-73 (Tr. 733:25-735:12 (Cash)).
Plaintiffs noted, however, that “the restraints were not because of the HI-TRAC,” and
“any cask that you’re putting on a pedestal [at Plant Vogtle] is going to require some sort
of seismic restraint.” Id. at 182 (Tr. 844:15-25 (Cash)). Defendant does not dispute that
the seismic restraints cost $1,346,127.75. See ECF No. 141-1 (“CLP HI-TRAC Seismic
Restraint System”).
As with the cask loading pit pedestal, defendant argues that it is not responsible
for the cost of the restraints because Georgia Power would have incurred the cost in the
non-breach world. See ECF No. 229 at 40-41. Put another way, defendant contends that
plaintiff has not proven causation. The court disagrees.
Mr. Brewer has testified that the government would not have used the HI-TRAC
casks used by Georgia Power. See ECF No. 173 at 195 (Tr. 2252:15-22 (Brewer)). Ms.
Eileen Supko, plaintiffs’ technical expert, testified—and defendant does not dispute—
that the seismic restraint system was custom-designed for the HI-TRAC casks. See ECF
No. 168 at 99-104 (Tr. 1284:16-1289:16 (Supko)). It follows directly, then, that plaintiff
would not have needed these restraints had the DOE performed under the contract.
Defendant’s argument that plaintiff has failed to prove causation because it would
have purchased seismic restraints of some description in the non-breach world is
unavailing. While it appears likely that seismic restraints would be required for any cask
the DOE might choose, see ECF No. 165 at 182 (Tr. 844:15-25 (Cash)), such an
assessment necessarily requires speculation because the DOE has yet to identify the cask
system it will use when it performs. Moreover, the DOE may not avoid liability for
damages by making the information about the non-breach world “unobtainable” to
plaintiffs. Locke, 151 Ct. Cl. at 267.
Accordingly, Georgia Power is entitled to recover $1,346,127.75 for the cost of
the cask loading pit seismic restraint system.

29

(c)

Cask Loading Pit Temporary Walkway

Georgia Power also seeks damages for the costs related to designing and building
a temporary walkway over the cask loading pit. See ECF No. 224 at 62. In 2009,
Georgia Power determined that the DOE would fail to collect spent nuclear fuel before
on-site storage was necessary, and began making plans for dry storage. See ECF No. 165
at 227-30 (Tr. 889-92 (Cash)). It was critical that Plant Vogtle complete preparations for
dry storage before the presence of excess spent fuel created operational complications,
including interruptions in electricity generation. See id. Due to the time-sensitive nature
of the work, Georgia Power moved on “parallel paths on some parts of the project and
contingency plans.” ECF No. 224 at 64 (citing ECF No. 168 at 105-08 (Tr. 1290-93
(Supko))).
The cask loading pit temporary walkway was one such contingency plan to guard
against the risk that “the tool used for moving spent fuel rods from the pool into the MPC
might not reach the cask if the cask pedestal being designed and built by Holtec was a
little on the short side.” Id. (citing ECF No. 165 at 83-84 (Tr. 745-46 (Cash)). The
temporary walkway “would have assured that [workers] had the reach they needed for the
tool used for loading.” Id. (citing ECF No. 165 at 84-85 (Tr. 746:13-747:5 (Cash)).
Georgia Power anticipated that designing and building the walkway would require eight
weeks. See ECF No. 165 at 84-85 (Tr. 746:13-747:5 (Cash)); see also id. at 184-85 (Tr.
846:14-847:8 (Cash)) (stating that if accurate drawings had been available, “it would
have taken less than eight weeks”). Although the walkway was ultimately not needed, id.
at 184 (Tr. 846:7-13 (Cash)), Georgia Power spent $471,515 planning for this
contingency, see ECF No. 141-1 (“FHB Temporary Cask Loading Pit Walkway”).
A non-breaching party is obligated to mitigate its damages when “a reasonable
person, in light of the known facts and circumstances, would have taken steps to avoid
damage.” Indiana Michigan, 422 F.3d at 1375. When mitigation efforts are “reasonable,
foreseeable, and caused by the Government’s partial breach, their ultimate success and
usage is irrelevant.” Yankee Atomic, 536 F.3d at 1276. See also Entergy Nuclear, 95
Fed. Cl. at 184) (“Efforts to demonstrate the plaintiffs failed to make the best choice in
mitigating damages are considered irrelevant.”).
According to defendant, plaintiffs should not recover mitigation damages for the
temporary walkway for two reasons. First, the need for a contingency plan was a
consequence of plaintiff’s unusual lack of confidence in the plant’s dimensional data.
See ECF No. 169 at 93 (Tr. 1466:13-17 (Supko)); see also ECF No. 165 at 184 (Tr.
846:14-847:8 (Cash)) (stating that if plaintiff “had the accurate drawings, it would have
taken less than eight weeks” to determine if the walkway was necessary). Defendant
contends that its breach is unrelated to the state of the plant’s dimensional drawings, and
thus did not cause the need for a contingency plan. See ECF No. 229 at 42. In addition,
defendant’s expert testified that plaintiff’s plan was unreasonable because it had other,
30

less costly, mitigation options. See id. at 43 (explaining that plaintiff could have made
additional calculations or positioned the cask in a different place).
As an initial matter, defendant’s causation argument fails to focus on the relevant
relationship. The court agrees with defendant that “the accuracy of the Vogtle plant’s
drawings—including the dimensional data—has nothing to do with DOE’s performance.”
Id. at 42. Certainly, the DOE’s breach did not cause concern regarding the data’s
accuracy. The question here, however, is whether the breach caused the need for a
contingency plan. Plaintiff implemented the contingency plan after determining that the
DOE would not perform prior to Plant Vogtle’s need for dry storage in order to avoid
operational complications. See ECF No. 165 at 227-30 (Tr. 889-92 (Cash)). Had
defendant performed, plaintiff would not have been in such a position. For this reason,
defendant’s breach is properly viewed as a substantial cause of plaintiff’s need for a
contingency plan.
Furthermore, both plaintiff’s expert and its dry storage program manager testified
that the contingency plan was reasonable under the circumstances. See ECF No. 168 at
105-08 (Tr. 1290:18-1293:11 (Supko)) (“Given the uncertainty with respect to whether or
not they would be able to utilize the long-handled spent fuel tool and the critical path
schedule that not designing and fabricating this walkway would have presented to them,
it was reasonable.”); ECF No. 165 at 84-85 (Tr. 746:13-747:17 (Cash)) (“If we had
waited until the campaign . . ., we would have lost our campaign in 2013 by the time we
could have designed and built it,” and “we would have then been looking at losing full
core offload capability the following year.”). Defendant’s expert may be correct that
plaintiff had additional, and perhaps even superior, mitigation options. See ECF No. 229
at 42. In the court’s view, however, plaintiff has shown by a preponderance of the
evidence that the option it chose was a reasonable one under the circumstances critical to
the plant’s continued operation. See Entergy Nuclear, 95 Fed. Cl. at 184 (“Efforts to
demonstrate the plaintiffs failed to make the best choice in mitigating damages are
considered irrelevant.”).
Accordingly, Georgia Power is entitled to recover $471,515 for the cask loading
pit temporary walkway.
(d)

Cask Washdown Area Pedestal

After loading spent fuel assemblies into a HI-TRAC cask in the cask loading pit,
the HI-TRAC is moved to the cask washdown area where the MPC is closed. See ECF
No. 168 at 70-71 (Tr. 1255:4-1256:3 (Supko)). While the HI-TRAC is in the cask
washdown area, the cask sits on a second, unique pedestal. See ECF No. 165 at 94-95
(Tr. 756:5-757:2 (Cash)). Like the pedestal in the cask loading pit, the pedestal in the
washdown area is custom-designed to fit the precise contours of the HI-TRAC and to
“prevent any horizontal movement of the HI-TRAC during an earthquake.” Id. at 95-96
31

(Tr. 757:19-758:2 (Cash)). The pedestal also serves to ensure that the MPC is at an
accessible height for closing operations. See ECF No. 168 at 111-12 (Tr. 1296:191297:21 (Supko)). The cask washdown area pedestal cost $180,000. See ECF No. 1411 (“Cask Washdown Area Pedestal”).
As with the cask loading pit pedestal, defendant’s argument here relates to
causation. It contends that plaintiff has “not demonstrated that [it] would not have
installed a pedestal in the cask washdown area in the non-breach world where fuel was
loaded into a DOE-supplied transport cask rather than Holtec storage casks,” therefore,
“[t]his cost is not recoverable.” ECF No. 229 at 45. Defendant criticizes plaintiff for not
analyzing “whether the pedestal in the cask washdown area would have been needed to
load a DOE-suppl[ied] cask in the non-breach world,” but fails to indicate how such an
assessment could be meaningfully conducted given that the DOE has not identified the
cask it would use in the non-breach world. See id. at 43.
Defendant notes that Mr. Cash “confirmed [that] a cask’s height determines the
need to use the pedestal in the washdown area.” Id. (citing ECF No. 165 at 181 (Tr.
843:16-21 (Cash)). It also states that Ms. Supko “admitted that, depending on the height
of a DOE-supplied cask, it may or may not require a pedestal.” Id. (citing ECF No. 169
at 87 (Tr. 1460:17-21 (Supko)). Ms. Supko and Mr. Brewer differed with regard to
whether and how the required cask height would be affected by the closing mechanism—
welding or bolts—on a particular cask. See ECF No. 229 at 44 (citing various passages
of differing expert testimony). And Mr. Brewer testified that he “had ‘no reason to
believe that the cost’ to install a pedestal specifically for a DOE-supplied cask ‘would be
in any way substantively different’ than the actual world.” Id. at 45 (citing ECF No. 173
at 66, 71-73 (Tr. 2123:17-22, 2128:20-2130:6 (Brewer)).
Defendant’s discussion is, however, untethered from any real information about
the cask it would have provided. See id. at 43-45. Because defendant has not provided
that information, it has deprived plaintiff of the ability to make the direct comparison
defendant insists it should make. Defendant cannot benefit from its own failure in this
regard. See Locke, 151 Ct. Cl. at 267 (“The defendant who has wrongfully broken a
contract should not be permitted to reap advantage from his own wrong by insisting on
proof which by reason of his breach is unobtainable.”).
The court finds that Georgia Power installed the cask washdown area pedestal,
which is custom-designed to fit with the HI-TRAC casks, because of defendant’s breach,
and is therefore entitled to recover $180,000. See ECF No. 141-1 (“Cask Washdown
Area Pedestal”).

32

(e)

Cask Washdown Area Seismic Restraints

In addition to the pedestal, Georgia Power installed seismic restraints in the cask
washdown area to prevent the HI-TRAC cask from tipping as a result of seismic activity.
See ECF No. 165 at 76-77 (Tr. 738:16-18, 738:25-739:6 (Cash)). As with the restraints
in the cask loading pit, these restraints were custom designed for Plant Vogtle to use with
the HI-TRAC casks. See id. at 78-79 (Tr. 740:18-741:10 (Cash)); see also id. at 241 (Tr.
903:11-23 (Cash)) (testifying that it would be “highly unlikely” that a cask other than the
HI-TRAC casks used at Plant Vogtle could use the same seismic restraints). Georgia
Power spent $1,247,077 to procure the cask washdown area seismic restraints. See ECF
No. 141-1 (“CWA HI-TRAC Seismic Restraint System”).
Defendant makes essentially the same argument with regard to the restraints in the
cask washdown area as it did with regard to the restraints in the cask loading pit. The
court, likewise, reaches the same conclusion. Defendant argues that it is not responsible
for the cost of the restraints because Georgia Power would have incurred the cost in the
non-breach world. See ECF No. 229 at 40-41. Absent more specific information about
the cask the DOE would have chosen in the non-breach world, however, the court cannot
make that determination. The evidence tends to prove that the custom-designed restraints
are unlikely to be compatible with any other cask, and as such, if the DOE does in fact
perform and if the casks it chooses require restraints, the cost will be incurred again.
Accordingly, the cost of the cask washdown area seismic restraints is properly
considered part of the breach damages in this case, and Georgia Power is entitled to
recover $1,247,077. See ECF No. 141-1 (“CWA HI-TRAC Seismic Restraint System”).
(f)

Cask Washdown Area Scaffolding Staircase

Georgia Power also constructed a scaffolding staircase in the cask washdown area
to accommodate the dry storage process. See ECF No. 165 at 89 (Tr. 751:2-13 (Cash)).
The staircase provided more safety and stability than the existing ladder for the increased
number of workers in the area during closure activities. See id. Georgia Power spent
$242,388 to replace the ladder with the scaffolding staircase. See ECF No. 141-1
(“Ladder Access to the FHB CWA Modification”). It also incurred costs of $22,386.03
to construct temporary scaffolding for use before the stairs were complete. See ECF No.
141-1 (“Scaffold in FHB Unit 2 Spent Fuel Pool Area”); ECF No. 224 at 72 n.45.
Ms. Supko testified that plaintiff would not have installed the staircase in the nonbreach world because it was constructed specifically to accommodate the HI-TRAC
casks. See ECF No. 168 at 126 (Tr. 1311:6-9 (Supko)). The design of the cask makes it
necessary for workers to frequently move between two elevations during closure
activities, and specifically to operate the forced helium dehydration system permanently
installed on the top level and to weld the cask. See id. at 126, 127-28 (Tr. 1311:1-25,
33

1312:15-1313:12 (Supko)). Ms. Supko further opined that any DOE-provided cask
would use vacuum dehydration and therefore would not such require ready access to
multiple elevations. See id. at 128 (Tr. 1313:13-19 (Supko)).
Defendant agrees that the existing ladder was a safety hazard, but argues that the
new staircase would have equally benefitted workers during closure activities on a DOEprovided cask, even if forced helium dehydration and welding were not required. See
ECF No. 229 at 46. Mr. Brewer testified that closing a DOE-provided cask would
involve bolting approximately forty-eight bolts in a deliberate and repeated pattern that
would “require [workers] to be up on top of the cask for not insignificant amounts of
time.” ECF No. 173 at 81-82 (Tr. 2138:14-2139:1 (Brewer)).
In its reply, plaintiff asserts—without citation to the record—that “Mr. Brewer’s
observation that workers for a DOE cask would have to deal with 48 bolts is irrelevant.
Those bolts would not involve workers at the higher elevations in the [cask washdown
area].” ECF No. 232 at 33.
The court finds that Georgia Power has failed to carry its burden to show that it is
more likely than not that the staircase would not have been as useful in the non-breach
world as it was in the actual world. Defendant’s expert testified that both procedures for
closing casks would require workers to spend a material amount of time on top of the
casks. See ECF No. 173 at 81-82 (Tr. 2138:14-2139:1 (Brewer)). Georgia Power’s
assertion to the contrary lacked any evidentiary support, and thus the court does not find
it persuasive.
Accordingly, Georgia Power is not entitled to recover $22,386.03 for the cost of
installing the scaffolding staircase or the associated temporary scaffolding. See ECF No.
141-1 (“Scaffold in FHB Unit 2 Spent Fuel Pool Area”).
(g)

Cask Washdown Area Step-Over Grating

In order to allow workers safe access to the forced helium dehydration system
used in closing HI-TRAC casks from the top of the cask washdown area, Georgia Power
installed two platforms made of step-over grating for safety reasons. See ECF No. 165 at
92-93 (Tr. 754:12-755:23 (Cash)). The platforms cost $427,279. See ECF No. 141-1
(“AB Elevator/Stairwell Platform/FHD Skids”).
Defendant agrees that the platforms “were constructed for worker safety,” but
contends that “the [drying] system brought by DOE would have just as likely been stored
where the [forced helium dehydration system] currently is located.” ECF No. 229 at 47
(citing ECF No. 173 at 78-79 (Tr. 2135:21-2136:3 (Brewer))).

34

Ms. Supko opined that the platform would not have been installed in the nonbreach world because the vacuum-drying system would not have been permanently
installed in the non-breach world, and thus would have been staged at a lower level on
existing platforms. See ECF No. 168 at 128-29 (Tr. 1313:13-1314:11 (Supko)).
Pursuant to the Standard Contract, the DOE would have provided the vacuum-drying
system along with the casks, and after the casks were closed, the DOE would have
removed the system from the plant. See id.
Even accepting that the DOE equipment could have been stored on the top level of
the cask washdown area making construction of the platforms a reasonable safety
precaution in the non-breach world, the court credits Ms. Supko’s opinion that the
temporary nature of the vacuum-drying equipment makes that course less likely.
Accordingly, the court finds that Georgia Power has shown, by a preponderance of
the evidence, that it would not have incurred the costs of the step-over grating platforms
in the non-breach world, it is entitled to recover $427,279. See ECF No. 141-1 (“AB
Elevator/Stairwell Platform/FHD Skids”).
(h)

Cask Washdown Area Work Platform

Georgia Power also constructed a cask washdown area work platform, which cost
$515,751. See ECF No. 141-1 (“AB Elevator/Stairwell Platform Modification”). Ms.
Supko explained at trial that the work platform was necessary at the top level of the cask
washdown area to allow the “hands-on access” required to set and check the automatic
welds on the HI-TRAC casks. See ECF No. 224 at 76 (citing ECF No. 168 at 134-35 (Tr.
1319:19-1320:16 (Supko))). According to Ms. Supko, the same level of access would not
be required for vacuum-drying and bolting closed DOE-provided casks. See ECF No.
168 at 135 (Tr. 1320:1-16 (Supko)); see also ECF No. 232 at 37.
As with the step-over grating platforms, defendant argues that the work platform
would be “equally valuable” in the actual and non-breach worlds. ECF No. 229 at 48.
Mr. Brewer insisted, again, that the same safety concerns would exist with DOE-provided
equipment as with the HI-TRAC casks. See id. (citing ECF No. 173 at 80 (Tr. 2137:6-16
(Brewer))).
Again, even accepting Mr. Brewer’s assessment, the court finds that Georgia
Power would have been less likely to fabricate and install new platforms to accommodate
temporary equipment when the existing platforms were workable.
Accordingly, Georgia Power is entitled to $515,751 for the cask washdown area
work platform. See ECF No. 141-1 (“AB Elevator/Stairwell Platform Modification”).

35

(i)

Cask Washdown Area Electrical Receptacles

Georgia Power installed 120-volt AC power receptacles at the top of the cask
washdown area to allow Holtec technicians to perform welding, forced helium
dehydration, and other MPC closure activities. See ECF No. 165 at 104-05 (Tr. 766:16767:12 (Cash)). The location of the new receptacles reduced radiation exposure by
minimizing the time workers were required to spend near the top of the MPC, where
radiation levels are highest. See id. at 105-06 (Tr. 767:10-768:7 (Cash)). The receptacles
were also, however, installed for “convenience” and were not dedicated power sources.
Id. at 186-87 (Tr. 848:12-849:8 (Cash)). Installation of the receptacles cost $185,866.
See ECF No. 141-1 (“120VAC Power Distribution System”).
Defendant argues, as with the cask washdown area platforms, that the receptacles
would have been equally useful in the non-breach world to support the closure activities
associated with DOE-provided casks. See ECF No. 229 at 50. Georgia Power insists,
however, that because the closure activities would occur on the lower platforms where
receptacles were already installed in the non-breach world, there would be no reason to
install receptacles on the top level. See ECF No. 224 at 77 (citing ECF No. 168 at 13537 (Tr. 1320:22-1322:12 (Supko))); ECF No. 165 at 105 (Tr. 767:13-21 (Cash)). Having
previously found that it is more likely that the DOE-provided equipment would be staged
on the lower platforms, the court agrees with plaintiff.
Accordingly, Georgia Power is entitled to recover $185,866 for the installation of
120-volt electrical receptacles. See ECF No. 141-1 (“120VAC Power Distribution
System”).
(j)

Lift Yoke Stand

To move the transfer casks, Georgia Power purchased a lift yoke that was
specifically designed for use with the HI-TRAC casks. See ECF No. 165 at 135 (Tr.
797:1-21 (Cash)); see also ECF No. 173 at 96 (Tr. 2153:10-25 (Brewer)) (explaining that
a lift yoke is a device that attaches the crane hook to the cask). The lift yoke, when not in
use, is stored on a stand. See ECF No. 165 at 133-34 (Tr. 795:2-18, 796:1-10 (Cash)). In
response to interrogatories, the DOE stated that in the non-breach world it would “not
have provided a lift yoke stand because the need for a lift yoke stand would have been
determined by the unique needs of the specific plant.” DX 104 at 15. The lift yoke stand
cost $19,025.62. See ECF No. 141-1 (“HI-TRAC Lift Yoke Stand”).
Georgia Power argues that the DOE would have provided a stand, or its functional
equivalent, in the non-breach world because it would be necessary both for transporting
the lift yoke securely and for positioning it to engage with the crane at the plant. See
ECF No. 224 at 79-80; ECF No. 232 at 38-40. Ms. Supko testified to this, stating that “a
lift yoke stand would have been necessary in order to safely transport the lift yoke in an
36

upright position.” ECF No. 169 at 79 (Tr. 1452:5-7 (Supko)). See also ECF No. 168 at
140-41 (Tr. 1325:18-1326:11 (Supko) (stating that the “obvious way to do that is for it to
be transported with its lift yoke stand”). She also testified that “when the lift yoke is not
in use, it’s necessary to safely store it, and it’s necessary to store it in an upright position,
so that the cask crane can interface with the top of the lift yoke,” id. at 139 (Tr. 1324:1417 (Supko)), and “the lift yoke stand accomplishes that,” id. (Tr. 1324:22-23 (Supko)).
Georgia Power further contends that the language of the Standard Contract
supports this position. Pursuant to the Standard Contract, the DOE is obligated to
“arrange for, and provide, a cask(s) and all necessary transportation of the SNF and/or
HLW from the Purchaser’s site to the DOE facility . . . . Such cask(s) shall . . . be
accompanied by pertinent information including, but not limited to, the following: . . .
equipment, . . . and consumables needed to use . . . the cask(s) . . . .” JX 1 at IV.B.2.
Defendant asserts that the stand is plant-specific equipment, and that in the nonbreach world, the DOE would have sent drawings of the lift yoke to the plant so that
plaintiff could procure a compatible stand. See ECF No. 229 at 51 (citing DX 104 at 15).
Mr. Brewer also concedes that the lift yoke stand at issue here was “specifically designed
for the lift yoke used with the Holtec HI-TRAC.” ECF No. 224 at 78 (citing ECF No.
173 at 243 (Tr. 2300:7-11 (Brewer)).
In the court’s view, Georgia Power has not carried its burden to show that the
DOE would have provided a lift yoke stand in the non-breach world. Ms. Supko credibly
asserts that a stand would be a sensible way to both transport and store the lift yoke, but it
is not clear to the court that it is the only way to do so. The contract language quoted by
Georgia Power obligates the DOE to provide equipment necessary to “use . . . the
cask(s)” it provides. JX 1 at IV.B.2. While the lift yoke itself is clearly required to use
the casks, Georgia Power has not demonstrated that it is more likely than not that the
storage mechanism for the lift yoke should be categorized the same way.
Accordingly, Georgia Power is not entitled to recover $19,025.62 for the cost of
the lift yoke stand. See ECF No. 141-1 (“HI-TRAC Lift Yoke Stand”).
(k)

Lift Yoke Storage Arm

The lift yoke stand was not the initial storage solution for the lift yoke. Georgia
Power first planned to use a storage arm mounted on the wall at Plant Vogtle, as it had
done successfully at Plant Farley. See ECF No. 165 at 136 (Tr. 798:1-25 (Cash)).
Ultimately, though, a structural analysis concluded that the wall might fail in a seismic
event, and the arm could not be used. See id.; see also id. at 179 (Tr. 841:13-15 (Cash))
(characterizing the failed effort as an “oops” moment). The parties have stipulated that
the storage arm cost $148,500. See ECF No. 141-1 (“Lift Yoke Wall Storage Arm”).
37

For the same reason that the court finds plaintiff cannot recover in this case for the
cost of the lift yoke stand, the court finds that plaintiff has not carried its burden with
regard to the lift yoke storage arm. It is simply not clear to the court, based on the
evidence before it, that the DOE was obligated to provide a storage mechanism for the lift
yoke. Absent that obligation, defendant is not responsible for the cost.
Accordingly, Georgia Power is not entitled to recover $148,500 for the cost of the
lift yoke storage arm. See ECF No. 141-1 (“Lift Yoke Wall Storage Arm”).
(l)

Concrete Pad Outside Fuel Handling Building

Outside the fuel handing building at Plant Vogtle, Georgia Power built a concrete
pad to stage helium for the forced helium dehydration system used in removing moisture
before closing canisters for dry storage. See ECF No. 165 at 102, 103-04 (Tr. 764:5-13,
765:20-766:6 (Cash)). By locating the pad outside the bay doors of the building, Georgia
Power gained efficiencies related to the number of personnel and steps needed to meet
decontamination requirements that would otherwise be implicated by bringing the helium
inside. See id. at 102-03 (Tr. 764:14-765:13 (Cash)). The concrete pad cost $307,109 to
construct. See ECF No. 141-1 (“AB Exterior Concrete Pad”).
Defendant recognizes the benefits of staging the helium outside the fuel handling
building and concedes that it was a reasonable decision on Georgia Power’s part. See
ECF No. 229 at 54. Mr. Brewer testified that “[s]taging the helium outside of the
building, as plaintiffs did, [was] not ‘absolutely necessary’ but ‘a matter of convenience’
that was entirely reasonable—‘to not have to drag helium bottles into the plant up to the
areas where I need it and just be dealing with that harassment.’” Id. (quoting ECF No.
173 at 109 (Tr. 2166:19-25 (Brewer)). Nevertheless, defendant argues that plaintiff
should not recover the costs because for the “same reasons, plaintiffs would have staged
helium outside the building for DOE pick-up in the non-breach world.” Id. (citing ECF
No. 173 at 109 (Tr. 2166:19-2167:6 (Brewer)).
Plaintiff argues that it is “illogical and incorrect to suggest that [plaintiff] would
have made any efforts or expenditures to make permanent modifications in the Plant
Vogtle’s Auxiliary Building for the [g]overnment-owned equipment used in the vacuum
drying process for a DOE cask.” ECF No. 232 at 43.
The parties agree that the DOE would use helium in loading DOE-provided casks.
See ECF No. 229 at 54. They further agree that the DOE would provide its own vacuumdrying equipment and helium supply pursuant to the Standard Contract. See id. at 54-55;
ECF No. 232 at 43. Thus, because the equipment and helium would be DOE-provided, it
“would leave the site along with the loaded DOE cask.” Id. (citing ECF No. 168 at 12829 (Tr. 1313:20-1314:11 (Supko))).
38

While the court understands the benefit of staging helium outside the fueling
handling building, it is not clear why Georgia Power would go through the trouble and
expense of doing so in the non-breach world. As with the cask washdown pit platforms,
the temporary nature of the equipment at issue makes it less likely that Georgia Power
would have made permanent modifications to the plant to accommodate it.
Accordingly, the court finds that Georgia Power has shown, by a preponderance of
the evidence, that it would not have incurred this expense in the non-breach world, and is
entitled to recover $307,109 for construction of the concrete pad outside the fuel handling
building. See ECF No. 141-1 (“AB Exterior Concrete Pad”).
(m)

Small Bore Piping for Helium in Fuel Handling
Building

The helium stored on the concrete pad was connected to the forced helium
dehydration system used in the cask washdown area through small bore piping. See ECF
No. 165 at 104 (Tr. 766:7-10 (Cash)). The small bore piping cost $469,736.50 to install.
See ECF No. 141-1 (“New Non-Safety Related Small Bore Piping for Helium”).
For the same reason that the court finds Georgia Power is entitled to recover for
the cost of the concrete pad outside the fuel handling building, it finds that plaintiff can
recover for the small bore piping to bring that helium into the building for use in the
forced helium dehydration system. Georgia Power has demonstrated, by a preponderance
of the evidence, that it is unlikely to have made permanent building modifications to
accommodate the DOE’s equipment while it would have been temporarily on-site.
Accordingly, Georgia Power is entitled to recover $469,736.50 for the installation
of small bore piping. See ECF No. 141-1 (“New Non-Safety Related Small Bore Piping
for Helium”).
(n)

Cask Washdown Area Demineralized Water System

When a cask is removed from the cask loading pit, it is decontaminated with
demineralized, “very pure water.” ECF No. 165 at 82, 83 (Tr. 744:13-15, 745:3 (Cash)).
Loaded HI-TRAC canisters are now decontaminated over the spent fuel pool, but prior to
the post-breach dry storage operations, there was piping that allowed for decontamination
in the cask washdown area. See id. at 86, 87 (Tr. 748:5-7, 749:5-13 (Cash)). The pipes
in the cask washdown area “stuck out so far that [Georgia Power] would not be able to
move a HI-TRAC into that area.” Id. at 86 (Tr. 748:14-15 (Cash)). As such, the pipes
could no longer be used and were modified to accommodate the HI-TRAC transfer cask
in the cask washdown area. See id. at 86, 87 (Tr. 748:16-17, 749:14-750:1 (Cash)).
Georgia Power also acknowledged that the casks are decontaminated over the pool in
order to minimize radiation exposure and contamination, and that they generally do not
39

use the cask washdown area. See ECF No. 170 at 155-56 (Tr. 1812:22-1813:2 (Loftin));
ECF No. 165 at 191 (Tr. 853:9-13 (Cash)). The alterations to the demineralized water
system in the cask washdown area cost $413,156.50. See ECF No. 141-1
(“Demineralized Water System in Cask Washdown Area”).
Defendant argues that Georgia Power should not recover the cost of altering the
demineralized water system for two reasons. First, defendant suggests that because
plaintiff now decontaminates casks over the spent fuel pool, it should not recover the
costs of the system it does not use. See ECF No. 229 at 56-57. Defendant acknowledges,
however, that Georgia Power “cut and capped the pipes to fit the Holtec HI-TRAC cask.”
Id. at 56. When mitigation efforts are “reasonable, foreseeable, and caused by the
Government’s partial breach, their ultimate success and usage is irrelevant.” Yankee
Atomic, 536 F.3d at 1276. As such, the court will not fault Georgia Power for evolving
its decontamination process as better and safer methods are developed.
Defendant next asserts that Georgia Power would have had to modify the pipes in
the non-breach world to accommodate a DOE-provided cask. See ECF No. 229 at 57.
Mr. Brewer testified to estimates for both the size of the cask the DOE would provide and
the size of the available opening to the cask washdown area. He assumed that a large rail
cask would be between eighty-four and ninety-six inches in diameter. See ECF No. 173
at 90 (Tr. 2147:7-12 (Brewer)). He then deduced from looking at a picture of the cask
washdown area that the narrowest opening was “somewhere between 32 and 41 inches.”
Id. at 89-90 (Tr. 2146:23-2147:1 (Brewer)). He further estimated that the opening in the
middle of the piping was approximately seventy-two inches. See id. at 90 (Tr. 2147:1924 (Brewer)). Mr. Brewer arrived at his estimates by comparing the desired
measurements with “things I know the size of in the picture.” Id. He testified that, based
on this visual assessment, “the pipes have to go no matter whether it’s a DOE cask or a
dry storage cask.” Id. at 90-91 (Tr. 2147:25-2148:2 (Brewer)).
Georgia Power raises three challenges to Mr. Brewer’s conclusion. First, plaintiff
notes that in 1990 the DOE conducted a Facility Interface Capability Assessment (FICA)
at Plant Vogtle. See JX 22 (June 1990 Cask-Handling Assessment). The FICA was
designed to “assess the features of a nuclear plant to help determine what kind of casks
might be suitable for use at the plant site.” ECF No. 173 at 230. The report stated that, at
Plant Vogtle, “access to the decontamination area is by a side opening 8 feet, 6 inches
wide,” which it identified as the “most restrictive width dimension for cask handling at
Vogtle.” JX 22. This would mean that a DOE-provided cask of the size estimated by
Mr. Brewer would fit in the cask washdown area without modification. See ECF No. 224
at 87-88. When asked about this statement, Mr. Brewer suggested that the report lacks
clarity as to what it was measuring. See ECF No. 173 at 232 (Tr. 2289:4-12 (Brewer)).
Second, Georgia Power argues that the DOE was obligated under the Standard
Contract to “bring equipment suitable for use [at] the site.” ECF No. 232 at 44. The
40

Standard Contract states that: “DOE shall arrange for, and provide, a cask(s) and all
necessary transportation of the SNF and/or HLW from the Purchaser’s site to the DOE
facility. . . . Such cask(s) shall be suitable for use at the Purchaser’s site . . .” JX 1 at
IV.B.2. It appears to the court that a decision by the DOE to use casks that did not fit in
the cask washdown area would conflict with this obligation. Defendant did not propose a
solution to this problem.
And finally, Georgia Power notes that the testimony related to the size of the
DOE-provided cask is speculative because the DOE has never provided the specific
dimensions of the cask it would have used in the non-breach world. See ECF No. 224 at
87, 88; ECF No. 232 at 44-45. “Information about the exact specifications of a DOE
cask would be critical to [p]laintiffs in identifying what actions may have been taken with
DOE performance.” ECF No. 232 at 45. To the extent that plaintiff cannot affirmatively
establish whether the DOE cask would fit in the cask washdown pit, its inability to do so
is a result of defendant’s breach and its subsequent failure to identify the cask it would
have used. The court will not penalize Georgia Power for defendant’s failure in this
regard. See Locke, 151 Ct. Cl. at 267 (“The defendant who has wrongfully broken a
contract should not be permitted to reap advantage from his own wrong by insisting on
proof which by reason of his breach is unobtainable.”) (citation omitted).
Accordingly, because Georgia Power modified the piping to accommodate the HITRAC casks, which it was using as a result of defendant’s breach, and because
defendant’s failure to identify a cask has prevented Georgia Power from making a direct
comparison between the actual and non-breach worlds, Georgia Power is entitled to
recover $413,156.50 for the cost of the alterations to the demineralized water system in
the cask washdown area. See ECF No. 141-1 (“Demineralized Water System in Cask
Washdown Area”).
(o)

Boron Concentration Analysis

Georgia Power decontaminates the HI-TRAC casks over the spent fuel pool,
which dilutes the water in the cask loading pit, and as a result, it is required to test for
adequate boron levels in the pool every twenty-four hours during loading. See ECF No.
165 at 83 (Tr. 745:1-9 (Cash)). The cost for boron testing during this claims period was
$25,000. See ECF No. 141-1 (“Boron Concentration Calculation”).
Despite the modifications to the cask washdown area, Georgia Power has chosen
to decontaminate casks over the spent fuel pool for efficiency and to minimize radiation
exposure. See, e.g., ECF No. 165 at 87, 191 (Tr. 749:5-8, 853:2-6 (Cash)); ECF No. 170
at 144, 155-56 (Tr. 1801:22-25, 1812:22-1813:2 (Loftin)); ECF No. 169 at 84 (Tr.
1457:14-21 (Supko)).

41

Defendant contends that Georgia Power should not recover the cost of boron
concentration analysis because it would have decontaminated the casks over the spent
fuel pool in the non-breach world, and thus would have incurred the cost even absent the
DOE’s breach. See ECF No. 229 at 60.
Georgia Power claims that “[i]f the DOE cask could have been decontaminated in
the [cask washdown area], then there would have been no need [to] decontaminate a
DOE cask over the spent fuel pool.” ECF No. 224 at 89 (citing Tr. 1336:10-15 (Supko)).
The court, however, does not find this position persuasive. Georgia Power modified the
demineralized water system in the cask washdown area to accommodate HI-TRAC casks,
but ultimately decided to decontaminate the casks over the cask loading pit to reduce the
risks associated with radiation exposure and contamination. See ECF No. 224 at 86, 87
(Tr. 748:16-17, 749:14-750:1 (Cash)); ECF No. 170 at 155-56 (Tr. 1812:22-1813:2
(Loftin)); ECF No. 165 at 191 (Tr. 853:9-13 (Cash)). Put another way, plaintiff chose to
decontaminate casks over the spent fuel pool rather than in the cask washdown area when
both were available for reasons unrelated to defendant’s breach. Based on the evidence
before the court, it is more likely than not that Georgia Power would have made the same
decision in the non-breach world.
Accordingly, Georgia Power is not entitled to recover $25,000 for the cost of the
boron concentration analysis. See ECF No. 141-1 (“Boron Concentration Calculation”).
(p)

Removable Cask Loading Pit Lights

Finally, Georgia Power procured removable lights for the cask loading pit. The
underwater lights allow personnel “to see with more clarity what’s going on when [they
are] moving fuel into . . . the MPC in the HI-TRAC.” ECF No. 165 at 246 (Tr. 908:9-13
(Cash)). There is, however, “nothing specific about the Holtec cask system that requires
lighting in [the] loading pit.” Id. at 247 (Tr. 909:21-24 (Cash)). Rather, the lights
support “worker performance and nuclear safety in that they make sure that we can see
better what we’re doing and we don’t inadvertently take a fuel assembly to someplace
where it doesn’t need to go or it can’t go.” Id. at 246 (Tr. 908:17-22 (Cash)). Mr.
Brewer testified that “you need lights to be able to see what you are doing to make sure
that when you go to insert an assembly into the cask, that you have it centered on the
space in the cask you are going to put it into and that you don’t damage the assembly
going in.” ECF No. 173 at 106 (Tr. 2163:18-23 (Brewer)). Mr. Brewer also
characterized the lights as “equipment,” id. at 244 (Tr. 2301:17-19 (Brewer)), that is
“needed to load a cask,” id. (Tr. 2301:20-25) (Brewer)). The removable lights cost
$22,760. See ECF No. 141-1 (“Cask Loading Pit Lights”).
Georgia Power argues that it should recover the cost of the lights because in the
non-breach world, defendant would have been responsible for providing the lights,
42

pursuant to the Standard Contract. See ECF No. 224 at 91. The provision under which
plaintiff claims defendant is obligated in this regard reads as follows:
DOE shall arrange for, and provide, a cask(s) and all necessary
transportation of the SNF and/or HLW from the Purchaser’s site to
the DOE facility. . . . Such cask(s) shall be . . . accompanied by
pertinent information including, but not limited to, the following:
...
(c)

technical information, special tools, equipment, lifting
trunnions,
spare parts and consumables needed to use and
perform incidental maintenance on the cask(s)[.]

JX 1 at IV.B.2.
Defendant does not fundamentally disagree about the purpose the lights serve, but
rather, claims that the Standard Contract requires Georgia Power to supply them. See
ECF No. 229 at 62. The provision of the contract under which defendant argues plaintiff
is obligated to provide the lights requires plaintiff to “arrange for, and provide, all . . .
loading activities necessary for the transportation of SNF and/or HLW to the DOE
facility.” JX 1 at IV.A.2.
In the court’s view, lights are more appropriately considered “equipment . . .
needed to use . . . the cask(s)” than a “loading activit[y].” Id. at IV.B.2. As such, a plain
reading of the contract language obligates the defendant to supply the lights. See id.
Accordingly, Georgia Power is entitled to recover $22,760 for the cask loading pit
lights. See ECF No. 141-1 (“Cask Loading Pit Lights”).
2.

Cost Difference Between Repairing and Replacing Overhead Cask
Handling Crane

In Plant Vogtle’s fuel handling building, Georgia Power has a 125-ton overhead
cask handling crane. See ECF No. 164 at 130 (Tr. 649:6-10 (Cash)). The crane is used
to move spent fuel casks from the cask loading pit to the cask washdown area, and then
from the cask washdown area to the railroad bay for transport. See id. (Tr. 649:20-25
(Cash)). The crane also has two hoists—an auxiliary hook and a monorail hoist—that are
used for other tasks such as moving new fuel and ancillary equipment. See id. at 130-31
(Tr. 649:25-650:6 (Cash)).
The crane presently used at Plant Vogtle is not the original crane. The original
crane was installed in or around 1985. See ECF No. 170 at 149 (Tr. 1806:3-5 (Loftin)).
43

The main hook of the original crane was designed to be used “if and when [Plant Vogtle
was] able to send casks of fuel offsite,” pursuant to the Standard Contract. Id. (Tr.
1806:14-17 (Loftin)).
While using the 125-ton crane hook, plant personnel noticed that some of the bolts
on the pillow block—a component of the crane that anchored the main hoist drum to the
trolley structure—were elongating and breaking. See ECF No. 165 at 109 (Tr. 771:12-18
(Cash)); JX 34 at 5 (April 1986 report noting problems with crane); JX 35 at 3-7
(identifying a flawed design as the likely cause of the problems). Following an
evaluation of the crane, it was de-rated from a 125-ton to 55-ton capacity “[s]ometime in
the mid ‘90s.” See ECF No. 170 at 149-50 (Tr. 1806:22-1807:9, 14 (Loftin)). In
addition to problems with the bolts, the crane bridge appeared to be under strain. See
ECF No. 165 at 156 (Tr. 818:5-10 (Cash)) (noting “loud and uncomfortable-sounding
noises” from the crane bridge when the crane moved). At the time these issues were
discovered, however, Plant Vogtle was not yet lifting spent fuel casks, so there was
minimal impact on plant operations. See ECF No. 170 at 150 (Tr. 1807:16-20 (Loftin)).
A number of repairs were undertaken over the years, but ultimately none solved the
problems. See DX 173A at 80:9-22 (Channell deposition); ECF No. 165 at 147, 167-68
(Tr. 809:10-24, 829:24-830:4 (Cash)); ECF No. 170 at 151 (Tr. 1808:7-17 (Loftin)); DX
42 at 2 (“Repair and rehabilitation were performed but the problem would recur.”).
Before dry storage operations could begin, Georgia Power needed to either repair
or replace the cask handling crane. Repairing the crane was the preferred course, and
was a possibility according to several vendors, but the process of repairing the crane
would involve a lengthy evaluation process that risked the plant’s ability to meet the strict
timeline for removing spent fuel from the pool. See ECF No. 165 at 109-10, 112 (Tr.
771:19-772:17, 774:21-25 (Cash)). The crane would need to lift dry storage casks by the
second quarter of 2013, and any delays “could be disastrous for dry storage.” Id. at 11011 (Tr. 772:14-773:7 (Cash)).
Georgia Power ultimately determined that replacing the crane was “the most
reliable method to have the crane available for dry storage in 2013.” Id. at 109 (Tr.
771:19-25 (Cash)); see also id. at 110-11 (Tr. 772:25-773:7 (Cash)) (noting that the plant
“had to have a fix that was guaranteed to work [the] first time”); id. at 117 (Tr. 779:1-9
(Cash)) (explaining “the risk that the schedule for repair would exceed our allowable
time”); ECF No. 170 at 152-53 (Tr. 1809:23-1810:2 (Loftin)) (testifying that “there was
no guarantee that any attempted repairs would be successful”). Georgia Power also hired
consultants from American Crane & Equipment Corporation, which issued a report
evaluating the crane, and ultimately recommended that it be replaced rather than repaired.
See JX 30 at 9.
Georgia Power argues that in the non-breach world it would have repaired the
crane rather than replacing it, and thus seeks damages in an amount of the difference
44

between the repair and replacement costs. See ECF No. 224 at 95. Georgia Power spent
$9,197,893 to replace the crane, see ECF No. 141 at 3, and estimates the cost to repair the
crane in the non-breach at $3,494,883, see PDX Y at 74-76 (plaintiffs’ demonstrative
exhibit reproducing information from PX 139, which was excluded from evidence in this
court’s November 4, 2020 evidentiary rulings order, see ECF No. 202 at 17). Thus, the
difference, according to Georgia Power’s expert, is $5,703,010. See ECF No. 170 at 5460 (Tr. 1711:18-1717:14 (Metcalfe)).
At trial, the parties each presented expert testimony in an effort to prove whether
Georgia Power would have repaired or replaced the crane in the non-breach world.
Plaintiff’s argument is as follows:
Plant Vogtle was expected to lose full core reserve by 2013. However, had
the [g]overnment performed under the Standard Contract, it would have
begun accepting spent fuel from Plant Vogtle in 2007, when the spent fuel
pool would have contained less SNF. With less SNF in the spent fuel pool,
Plant Vogtle would have had the operational flexibility to attempt a repair of
the cask handling crane prior to a scheduled 2007 loading for DOE SNF
acceptance, which it would have attempted because that was the lower cost
option. If the repair had been unsuccessful, Plant Vogtle could have delayed
the DOE loading campaign, replaced the crane, and rescheduled the loading
without threatening Plant Vogtle’s full core reserve.
ECF No. 224 at 95 (internal citations omitted).
The parties make extended arguments about the feasibility of repairing the crane
rather than replacing it, both from technical and financial perspectives. See id. at 96120; ECF No. 229 at 69-76, 78-80; ECF No. 232 at 49-53, 56-58. The threshold issue,
however, is whether defendant’s breach forced the decision to replace rather than repair
the crane at the time that decision was made. In other words, the court must first address
the issue of causation before reaching the distinct issue of the feasibility of repairs.
As Georgia Power acknowledged, the crane at Plant Vogtle had a long history of
problems. See ECF No. 165 at 109 (Tr. 771:12-18 (Cash)); JX 34 at 5 (April 1986 report
noting problems with crane); JX 35 at 3-7 (identifying a flawed design as the likely cause
of the problems). Following an evaluation of the crane, it was de-rated from a 125-ton to
55-ton capacity “[s]ometime in the mid ‘90s.” ECF No. 170 at 149-50 (Tr. 1806:221807:9, 14 (Loftin)). The decision to replace the crane was made approximately twentyfive years later, in 2010 or 2011. Id. at 151 (Tr. 1808:4-6) (Loftin)). In the interim, a
number of repairs were undertaken, but ultimately none solved the problems. See DX
173A at 80:9-22 (Channell deposition); ECF No. 165 at 147, 167-68 (Tr. 809:10-24,
829:24-830:4 (Cash)); ECF No. 170 at 151 (Tr. 1808:7-17 (Loftin)); DX 42 at 2 (“Repair
and rehabilitation were performed but the problem would recur.”).
45

Georgia Power likewise acknowledged that the crane would have needed to be in
working order in the non-breach world. As noted above, plaintiff argues that had
defendant accepted spent fuel under the Standard Contract beginning in 2007, Georgia
Power would have had time to attempt to repair the crane. See ECF No. 224 at 95 (citing
ECF No. 165 at 118 (Tr. 780:10-13 (Cash)); ECF No. 170 at 152 (Tr. 1809:15-20
(Loftin))). “If the repair had been unsuccessful, Plant Vogtle could have delayed the
DOE loading campaign, replaced the crane, and rescheduled the loading without
threatening Plant Vogtle’s full core reserve.” Id.
The record before the court demonstrates that plaintiff was on notice decades
before it replaced the crane that it would need to be repaired or replaced prior to any
loading campaign, whether in the actual or non-breach world. And as Mr. Loftin testified
at trial, fueling outages are scheduled “10, 15, [or] 20 years in advance.” ECF No. 170 at
148 (Tr. 1805:4-14 (Loftin)). As defendant notes, “[t]his means that plaintiffs knew
about the 2014 refueling outage—and the corresponding desire to have ‘full core reserve’
in the pool so that new assemblies could be “staged”—since at least 2004,” nine years
before the 2013 loading campaign. ECF No. 229 at 77 (citing ECF No. 170 at 148 (Tr.
1805:15-21 (Loftin))). Thus, regardless of the feasibility of the proposed repairs, the
timing concern that ultimately drove the decision to elect the more expensive route of
replacing the crane was caused by plaintiff’s delay in evaluating its options rather than
defendant’s breach.
Georgia Power explains its decision not to attempt crane repairs earlier as a
financially reasonable one. It insists that, in light of the need to implement dry storage by
2013, “Georgia Power prudently did not devote capital dollars to the cask handling crane
until 2011 because it prioritized other, more pressing, capital projects.” ECF No. 232 at
55. In making this argument, plaintiff conflates the effort to evaluate its options with the
cost of executing repair or replacement plans. See id. at 55-56. Plaintiff claims that it
could not have known that evaluations related to repairs would take “six to nine months
to complete,” before it began the process, and that defendant’s position is unreasonable
because it “would have meant tying up millions of dollars in capital to go towards . . .
fixing a crane that was not needed to lift 125-tons for dry cask storage until 9 years later.”
Id. at 55. Plaintiff does not argue, though, that simply evaluating the problem so that
plaintiff was prepared to act at the appropriate time would have caused an unmanageable
outlay of capital.
In the court’s view, defendant’s breach did not cause the time constraints that
plaintiff claims created the need to replace the crane without attempting the repairs that
its experts argue would have been both successful and less expensive. Rather, plaintiff’s
decision to delay the evaluation of its options for more than twenty years after the crane
was de-rated, and with knowledge of the need to conduct a loading campaign in 2013 by
at least 2004, is the reason plaintiff was unable to attempt to repair the crane before
replacing it.
46

Accordingly, Georgia Power is not entitled to recover the difference between the
repair and replacement costs for the cask handling crane.
3.

Sally Port

In the last round of litigation in these cases, the court found that Georgia Power
built the new sally port to accommodate dry storage activities, and that it would not have
done so in the non-breach world. See Alabama Power, 119 Fed. Cl. at 632-34.
Specifically, in its 2014 opinion, the court noted that, for reasons related to both safety
and efficiency, defendant’s arguments that Georgia Power would not have built a new
sally port in the non-breach world had some logical appeal. See id. at 633. Despite this
appeal, however, the court concluded that the Standard Contract did not require Georgia
Power to pursue such a course. See id. The court explained its conclusion as follows:
[I]nsofar as the non-breach world is one in which the parties abide by their
contractual obligations, the court finds that Georgia Power would not have
been required to install a new sally port. The government is, in fact, required
under the contract to deliver casks that are “suitable for use at the Purchaser’s
site.” Plaintiffs’ Ex. 4 at IV.B.2. And casks requiring expensive building
modifications are, by definition, not “suitable for use at the Purchaser’s site.”
Id.
Since the time that Georgia Power incurred the damages awarded by the court in
2014, it has finished installing the new sally port, which is used exclusively for dry
storage activities. See ECF No. 165 at 237-38 (Tr. 899:22-900:1 (Cash)). Georgia Power
paid $7,242,557.29 to complete the sally port construction. See ECF No. 141-1 (“Vogtle
Sally Port”).
Defendant argues that plaintiff should not recover the costs associated with
completing the sally port despite the court’s 2014 ruling because plaintiff has changed its
position regarding the type of transportation casks the DOE would have used in the nonbreach world. See ECF No. 229 at 83. In 2014, plaintiff argued that the DOE would
have used truck casks that the old sally port and accompanying road could have
supported. See Alabama Power, 119 Fed. Cl. at 621, 633. In the present round of
litigation, Ms. Supko testified that plaintiff could have used rail casks. See ECF No. 169
at 57-58, 108 (Tr. 1430:25-1431:6, 1481:13-18 (Supko)).
This difference, in defendant’s view, is so central to this case that it justifies
departing from the court’s 2014 decision and essentially reversing the sally port ruling.
Defendant characterizes the court’s previous holding as “rest[ing] on the assumption that
plaintiffs would have used smaller truck casks in the non-breach world,” and contends
that, since plaintiff has now suggested that a rail casks would be used, the 2014 “decision
47

has no bearing on the court’s decision here.” See ECF No. 229 at 83 n.22. Georgia
Power contends that the specifics of the cask that would have been used by the DOE—
which is ultimately unknowable—is not the salient fact here, but rather that any DOE
cask would have arrived at the plant through the existing security gate. See ECF No. 232
at 58-63. To demonstrate the feasibility of using the existing sally port even if the DOE
used a rail cask in the non-breach world, plaintiffs cite to the trial testimony of Ms.
Supko, Mr. Cash, and Mr. Loftin. See id. at 59-62 (citing various, lengthy passages in
which the witnesses testify that heavy haul vehicles, such as the vehicle required to move
a rail casks, could and have used the existing sally port).
In the court’s view, the type of cask used by the DOE is not determinative here.
That plaintiff’s focus changed from truck casks to rail casks is not inconsistent with
the fundamental ruling that the court reached in its 2014 opinion. The court’s previous
decision rested firmly on the contract language that required defendant “to deliver casks
that are ‘suitable for use at the Purchaser’s site.’ And casks requiring expensive building
modifications are, by definition, not ‘suitable for use at the Purchaser’s site.’” Alabama
Power, 119 Fed. Cl. at 633. That holding is as applicable today as it was in 2014.
As this court held in 2014, the new sally port and heavy haul road were
constructed to support the Holtec casks because the existing sally port was insufficient.
Id. at 632-33 (“Georgia Power built the new sally port because the existing port led to a
road that could not bear the combined weight of the loaded Holtec casks and the
transportation vehicles, some 600,000 pounds. The opening of the sally port was also too
narrow for the large transportation vehicles required to move the loaded casks to the
ISFSI.”) (internal citation omitted). This court has also determined that constructing a
new sally port constitutes an “expensive building modification,” which plaintiff is not
obligated to undertake pursuant to the Standard Contract. See id. at 633.
Accordingly, Georgia Power is entitled to recover $7,242,557.29 for the costs
incurred to complete the sally port construction. See ECF No. 141-1 (“Vogtle Sally
Port”).
4.

2014 Fuel Sipping Campaign

Pursuant to the HI-STORM Certificate of Compliance, Georgia Power must
determine which spent fuel assemblies meet the criteria for dry storage through a process
called fuel characterization prior to loading assemblies into the HI-STORM dry storage
casks. See ECF No. 162 at 107-08 (Tr. 107:19-108:19 (Williams)). The pertinent fuel
characteristics are defined by the HI-STORM Certificate of Compliance and include, for
example, the physical characteristics of the fuel, the number of fuel rods, the weight of
the assemblies, the fuel condition, and the time that spent fuel is cooled in the pool. See
id. at 107-09 (Tr. 107:19-108:19, 108:24-109:5 (Williams)).
48

When evidence of possible damage is found, plant personnel must conduct
additional evaluation. One method of evaluation is called fuel sipping. See ECF No. 224
at 128. Through fuel sipping, the plant can determine whether a fuel assembly is
damaged, and therefore requires special handling before storage. See ECF No. 162 at
114-16 (Tr. 114:20-116:18 (Williams)). The HI-STORM Certificate of Compliance does
not require Georgia Power to use fuel sipping, but does require Georgia Power to certify
that the fuel is intact. See id. at 117 (Tr. 117:1-10 (Williams)). Georgia Power uses the
fuel sipping method when necessary because it believes fuel sipping is the “most efficient
and effective way to determine if there is a cladding defect within a fuel assembly.” Id.
(Tr. 117:13 (Williams)).
The Standard Contract also requires that utilities characterize fuel as either intact
or failed before loading the fuel into the DOE-provided transportation casks. See JX 4 at
VI.A.1(b); see also ECF No. 162 at 132-33 (Tr. 132:19-133:23 (Williams)) (agreeing that
the Standard Contract requires utilities to characterize fuel prior to pick-up). Specifically,
the contract requires plaintiff to “accurately classify SNF . . . prior to delivery in
accordance with paragraphs B and D of Appendix E.” JX 1 at VI.A.1(b). Paragraphs B
and D of Appendix E, in turn, provide guidance for characterizing fuel as “standard,”
“nonstandard,” or “failed.” JX 1 at Appendix E.A.1. As relevant here, Appendix E
specifies that fuel must be “visually inspected for evidence of structural deformity or
damage,” and that if damage is discovered through this process, the fuel “shall be
classified as Failed Fuel.” Id. at Appendix E.A.1.B.6.a. Appendix E also requires that
failed fuel be “packaged and placed in casks so that all applicable regulatory
requirements are met.” Id. at Appendix E.B.6.c.
In 2014, plant personnel and Westinghouse Electric Company personnel reviewed
chemistry data from past reactor cycles in advance of a dry cask loading campaign and
found that it was unclear whether the pool contained damaged fuel assemblies. See ECF
162 at 110 (Tr. 110:1-18 (Williams)). To ensure that the fuel assemblies in the pool were
intact, as required by the HI-STORM Certificate of Compliance, Georgia Power
characterized the fuel by performing a fuel sipping campaign. See id. at 114 (Tr. 114:2224 (Williams)); ECF No. 170 at 202 (Tr. 1859:17-25 (Loftin)).
During the fuel sipping method used in this case, “[a] fuel sipping can is placed
into the spent fuel pool and a fuel assembly is loaded into the can. Then a vacuum is
drawn on the can, which pulls the fission products out of any damaged fuel rods,
indicating that a defect[ ] exists.” ECF No. 224 at 129-30 (citing ECF No. 162 at 114
(Tr. 114:4-9 (Williams))).
At the time of the fuel sipping campaign, the DOE had not provided Georgia
Power with the loading or fuel characterization procedures that the DOE would require
when it performs under the Standard Contract. See ECF No. 162 at 130 (Tr. 130:2-12
(Williams)). In addition, the DOE admits that the spent fuel may not be transportable in
49

the canisters at the time of the DOE’s future performance; that decision must be made
contemporaneously. See DX 104 at 50.
Georgia Power incurred costs of $805,873.50 for the 2014 Westinghouse fuel
sipping campaign. See ECF No. 141-1 (“Vogtle Fuel Sipping”).
Defendant argues that plaintiff should not recover the costs for the 2014 fuel
sipping campaign because it would have needed to characterize fuel in the non-breach
world pursuant to the Standard Contract. See ECF No. 229 at 90-91. Plaintiff does not
contest that the Standard Contract requires fuel characterization, but explains its theory of
recovery as follows:
Plant Vogtle performed the fuel sipping in 2014 solely because of its
requirement to ensure it was loading fuel that complied with its Holtec HISTORM 100 dry storage system—a system that would never have been
implemented if the [g]overnment had performed and picked up fuel from
[p]laintiffs’ plants.
The [g]overnment claims that the same fuel sipping campaign would have
been performed in the non-breach world. However, rather than evaluating
fuel for loading into the Holtec HI-STORM 100 system for storage of the
spent fuel like [plaintiff] did in the actual world, in the non-breach world, the
DOE would have delivered a transport cask that was suitable for use for
transport of spent fuel from the Vogtle site.
In that case, Plant Vogtle would have qualified spent fuel for transport
against the fuel characteristics required for that specific DOE transport cask.
The date of the [g]overnment’s performance is unknown. And, the
[g]overnment has not identified what type of cask the DOE would have
provided in the non-breach world or that it will provide in the future.
Similarly, the DOE has never provided any loading procedures or any fuel
verification procedures that utilities will have to follow. Thus, it is complete
speculation to say that fuel sipping would be performed for a DOE-provided
transport cask.
ECF No. 224 at 130 (internal citations omitted).
The Federal Circuit’s opinion in System Fuels, Inc. v. United States, 818 F.3d
1302 (Fed. Cir. 2016), is instructive with regard to the distinction between loading fuel
for storage or loading fuel for transport. In System Fuels, the Federal Circuit reviewed
two SNF decisions from this court, specifically addressing the issue of damages for fuel
loading costs. The Circuit held, as follows:
50

We agree with System Fuels that the Court of Federal Claims clearly erred
in both decisions when it denied damages for costs incurred to load the
storage casks and/or canisters, regardless of the type of fuel loaded. The
record in both cases indicates that under the existing Standard Contracts, the
DOE cannot accept for transport any of the canistered fuel as is, such that
System Fuels will incur costs to unload this fuel from the storage casks and
canisters and to reload it into transportation casks if and when the DOE
performs.
Id. at 1306. In reaching this decision, the Circuit focused on fact that the DOE will not
accept fuel in storage casks, but will require utilities to re-package fuel into transportation
casks. See id. The Circuit specifically held that the trial court erred when it compared
the cost of loading storage casks to the cost of loading transportation casks. See id.
According to the Circuit, “the costs of loading future transportation casks, or the
difference between the costs of loading these storage casks and loading transportation
casks, are irrelevant to System Fuels’ entitlement to the expenses it incurred for loading
these storage casks. These are expenses incurred entirely for storage due to the
government’s breach.” Id. at 1307.
In the court’s view, System Fuels governs here and requires this court to award
plaintiff damages for the 2014 fuel sipping campaign. Accordingly, Georgia Power is
entitled to recover $805,873.50 for the 2014 Westinghouse fuel sipping campaign. See
ECF No. 141-1 (“Vogtle Fuel Sipping”).
5.

Dry Storage Engineering Costs

In designing its dry storage program at Plant Vogtle, Georgia Power developed a
number of unique designs, from the preliminary to final stages, with no guidance from
the DOE. See ECF No. 164 at 108-09 (Tr. 627:17-628:25 (Cash)); ECF No. 165 at 14,
15-16 (Tr. 676:18-24, 677:16-678:13 (Cash)). Due to the complexity of the project,
Georgia Power made changes and encountered delays in the process. See ECF No. 164
at 112-13 (Tr. 631:19-632:11 (Cash)).
Mr. Jimmy Cash testified at trial as Plant Vogtle’s certified project manager for
the dry storage project. See id. at 95-96, 102 (Tr. 614:12-615:14, 621:15-18 (Cash)). Mr.
Cash testified that project changes and delays are an expected part of unique projects.
See id. at 110-11, 137-38 (Tr. 629:1-630:1, 656:24-657:25 (Cash)); ECF No. 165 at 9-10
(Tr. 671:25-672:6 (Cash)). The delays and changes plaintiff experienced on this project
related, in large part, to the longer than expected time for Holtec to provide documents
that Bechtel needed to complete its design work. See ECF No. 165 at 195, 229, 217-18,
220 (Tr. 857:7-12, 891:3-9, 879:25-880:6, 862:16-23 (Cash)). These delays resulted in
the need to pursue parts of the project on parallel tracks and to re-work some designs.
51

See id. at 229 (Tr. 891:6-10) (Cash)); see also ECF No. 173 at 159-60 (Tr. 2216:172217:12 (Brewer)).
According to Mr. Cash, however, the engineering costs associated with changes or
delays with the dry storage build out at Plant Vogtle were ordinary and unsurprising. See
ECF No. 165 at 19-20 (Tr. 681:18-682:11 (Cash)). He also acknowledged that the
project was “time-critical,” and resulted in approximately five years of work needing to
be completed in three and a half years. Id. at 195 (Tr. 857:3-12 (Cash)). The engineering
costs associated with changes or delays amount to $1,741,478. See ECF No. 224 at 136
(citing DDX G-10; ECF No. 174 at 101-04 (Tr. 2424:14-2427:4 (Johnson))).
Defendant challenges these engineering costs as unreasonable, arguing that “[h]ad
plaintiffs allotted sufficient time to complete the dry storage project, it would have been
unnecessary to pursue tasks on parallel tracks, and costs associated with re-working
designs would have been avoided.” ECF No. 229 at 96 (citing ECF No. 173 at 164-65
(Tr. 2221:19-2222:8 (Brewer))). This argument is both speculative and an impermissible
attack on plaintiff’s mitigation efforts.
Dry storage was necessary and implemented at Plant Vogtle solely because of
defendant’s breach. As such, the dry storage project was an effort to mitigate damage
caused by defendant. To recover mitigation damages, the mitigating party must “prove
foreseeability, causation, and reasonableness.” Indiana Michigan, 422 F.3d at 1376. But
when mitigation efforts are “reasonable, foreseeable, and caused by the Government’s
partial breach, their ultimate success and usage is irrelevant.” Yankee Atomic, 536 F.3d
at 1276.
Prior to its decision in 2009 to begin building out dry storage, plaintiff intended to
install additional racks in the spent fuel pool. At trial, Mr. Cash explained these plans as
follows:
[Randy Bunt, Mr. Cash’s predecessor,] had been working to monitor and
have [a] contingency plan . . . to ensure that we did not fill up the spent fuel
pools and would end up not being able to refuel.
...
The primary contingency plan was to put in additional racks in the spent fuel
pool. This was based on the assumption that the DOE would pick up in a
reasonable amount of time and all we needed was a bridge to . . . give us a
few more years. As late as 2008, it looked like that was going to happen. In
2008, the DOE submitted a license—a request to the NRC for Yucca
Mountain.
52

...
My understanding is in 2009 that the Department of Energy started shutting
down the Yucca Mountain project.
ECF No. 164 at 116-17 (Tr. 635:5-636:14 (Cash)). This testimony makes clear that the
timing of plaintiff’s dry storage plans was influenced by plaintiff’s expectation that the
DOE would perform its obligations under the contract soon after 2008. Moreover, when
Mr. Cash began working on the dry storage project in 2009, a budget had been
established and plans were underway for dry storage. See id. at 118 (Tr. 637:4-15
(Cash)).
In light of the circumstances, the court finds that Georgia Power reasonably and
foreseeably incurred the additional engineering costs as a result of defendant’s breach. In
theory, plaintiff could have started the project earlier, which might have resulted in fewer
costs related to delays or changes. Given the unique nature of the project, however, it is
far from certain that additional time would have materially changed the costs associated
with delays and changes on the project. 10 And in addition to being speculative, this
version of the world also ignores the reality that plaintiff was dealing with a moving
target. It was responding to the DOE’s apparent plans to perform under the contract, and
the court will not fault plaintiff for doing so imperfectly. See Entergy Nuclear, 95 Fed.
Cl. at 184 (“Efforts to demonstrate the plaintiffs failed to make the best choice in
mitigating damages are considered irrelevant.”).
Accordingly, Georgia Power is entitled to the engineering costs associated with
changes or delays in an amount of $1,741,478. See ECF No. 224 at 136 (citing DDX G10; ECF No. 174 at 101-04 (Tr. 2424:14-2427:4 (Johnson))).
C.

Plant Farley

On June 13, 1983, the government entered into a contract with Alabama Power
with regard to the disposal of fuel from Plant Farley. See ECF No. 141 at 1-2. In this
phase of litigation, Alabama Power seeks damages to cover costs it alleges were incurred,
due to the government’s partial breach of the Standard Contract from January 1, 2011,
through December 31, 2014. See ECF No. 17 at 1; ECF No. 141 at 2.

10

The court notes that these additional engineering costs differ materially from plaintiff’s
delay in making repairs to the crane. In either the actual or non-breach worlds, plaintiff needed a
functional crane and had sufficient notice of when Plant Vogtle would need to use it. To the
contrary, plaintiff would not have needed a dry storage program had defendant performed under
the contract.

53

During that time, Alabama Power incurred costs related to Plant Farley’s dry cask
storage program including damages for price adjustments to its contract with Holtec as a
result of excess inventory, and additional costs related to the procurement and loading of
Holtec casks. See ECF No. 224 at 39-54. Alabama Power’s alleged damages for these
categories are as follows:
Contract Price Adjustment:
Costs Related to Procurement and Loading
Seismic Restraint Hardware:
Holtec Storage Fees:
Loading Campaign Delay Charges:
Total:

$742,903.92
$1,007,358.28
$274,495.57
$1,964,500.00
____________
$3,989,257.77

See ECF No. 224 at 26. The court will address each category, in turn.
1.

Holtec Contract Price Adjustment

Pursuant to Alabama Power’s contract with Holtec, it must order storage casks
well in advance of—at least two years before—the loading campaign in which they will
be used. See ECF No. 163 at 60-62 (Tr. 274:7-275:3, 275:17-276:9 (Channell)); see also
id. at 54-55 (Tr. 268:21-269:15 (Channell) (testifying that plaintiffs generally schedule
loading campaigns two years in advance)). Plaintiff intended to conduct loading
campaigns at Plant Farley in 2009, 2011, and 2012. See id. at 55 (Tr. 269:16-22
(Channell)). The 2009 campaign, in which plaintiff planned to load seven casks, was
canceled due to incomplete but necessary work on the forced helium dehydration system
and the press of other work at the plant. See id. at 55-56, 62 (Tr. 269:23-270:12, 276:1314 (Channell)).
At the time of cancellation, Alabama Power had already ordered casks for all three
loading campaigns, twelve of which had not yet been delivered. See id. at 56 (Tr.
270:13-24 (Channell)). Plaintiff loaded two casks in 2010, but due to the 2009 campaign
cancellation, the plant had an excess of casks on site. See id. at 65 (Tr. 279:20-24
(Channell)). Plaintiff worked with Holtec to delay the delivery schedule of the remaining
twelve casks, and as a result, incurred $742,903.92 in price increases under its contract.
See id. at 66-69 (Tr. 280:17-283:2 (Channell)); see also ECF No. 141 at 3-4; ECF No.
141-1 (“Farley Holtec Contract Price Increases”). The delay also had the effect of
“free[ing] up capital resources that [plaintiff] would have had to otherwise commit
unnecessarily,” ECF No. 163 at 70 (Tr. 284:21-24 (Channell)), which limited costs
passed through to ratepayers at that time, see id. at 72 (Tr. 286:1-3 (Channell)).
Alabama Power first argues that defendant’s breach caused the damages at issue
because plaintiff “would never have needed to deal with an excess inventory of HI54

STORM cask systems had the [g]overnment simply performed under the Standard
Contract.” ECF No. 224 at 41. Next, plaintiff contends that by challenging the damages,
defendant “ignores the positive impact [of] delaying delivery of those HI-STORM cask
systems had on the capital budget for Plant Farley.” Id. Plaintiff further explains that
had it opted to store the extra casks on site, its acceptance of the casks would have
triggered the accrual of costs and finance charges that would be passed on to ratepayers.
See id. at 41-42 (citing ECF No. 163 at 72 (Tr. 286:1-3 (Channell))). Plaintiff sought to
avoid triggering those costs because they “are not recoverable in these SNF cases because
they are considered to be interest charges.” Id. at 42 (citing S. Cal. Edison Co. v. United
States, 93 Fed. Cl. 337, 363 (2010) (holding that claims for this type of finance charge are
barred by the “no interest rule” under 28 U.S.C. § 2516)).
Defendant argues that Alabama Power cannot recover the cost of adjusting its
contract with Holtec because it, in effect, “misplaced” its duty to mitigate damages,
which runs to defendant, not to its ratepayers. ECF No. 229 at 25. In addition, defendant
contends that plaintiff unreasonably chose to adjust its contract with Holtec to delay cask
delivery without conducting an analysis of the costs to do so relative to the alternative of
storing the extra casks on the ISFSI pad or canceling the contract. See id. At trial, Mr.
Brewer testified that plaintiff had “ample” space on the Plant Farley ISFSI pads, and in
fact had stored empty equipment there in the past. See ECF No. 229 at 23 (citing ECF
No. 173 at 140-43 (Tr. 2197:2-2199:6, 2199:12-2200:18 (Brewer))). The court agrees
that more information was required to inform the reasonable course in this case.
Alabama Power is not required under the law to make the best choice in mitigating
damages, but it is required to make a reasonable choice. See Indiana Michigan, 422 F.3d
at 1375 (holding that a non-breaching party is obligated to mitigate its damages when “a
reasonable person, in light of the known facts and circumstances, would have taken steps
to avoid damage”). In the court’s view, plaintiff did not demonstrate at trial that it had
evaluated, in sufficiently specific terms, the financial impact of storing the extra casks on
the ISFSI at Plant Farley as opposed to delaying delivery. The court understands and
appreciates plaintiff’s desire to protect its rate payers from taking on additional costs in
the form of unrecoverable finance charges. For the court to deem reasonable the election
to delay cask delivery, however, a more detailed understanding of the obvious and
available alternatives is required.
Accordingly, because plaintiff has not presented sufficient facts to support a
finding that its mitigation decision was reasonable, Alabama Power is not entitled to
recover the cost of the contract increases of $742,903.92. See ECF No. 141-1 (“Farley
Holtec Contract Price Increases”).

55

2.

Costs Related to Procurement and Loading

After canceling the 2009 loading campaign, Plant Farley loaded two HI-STORM
systems in 2010. See id. at 73-74 (Tr. 287:19-288:1 (Channell)). The plant then
conducted another loading campaign in 2011 in order to avoid an adverse impact on
operations due to small spent fuel pool margins. See id. at 113, 145-46 (Tr. 327:4-7,
359:10-360:11 (Channell)); see also id. at 220 (Tr. 434:4-8 (Channell) (testifying that the
plant would not have been under the “same pressure” to load casks in 2011 had the 2009
campaign gone forward”)); DX 173A at 146:24-147:1 (Mr. Channell testifying that when
the 2009 campaign was canceled, “it was already known that [Plant Farley] would lose
core offload capability” as a result). The loading campaign was scheduled to begin in
late February 2011. See ECF No. 163 at 74 (Tr. 288:6-11 (Channell)). Necessary
modifications to the forced helium dehydration system caused a two-week delay, but the
campaign ultimately began in March 2011. See ECF No. 163 at 74-76 (Tr. 288:12-21,
289:10-14, 290:7-19 (Channell)).
As the loading campaign began, Alabama Power received a copy of a report issued
by the NRC to the Perry Nuclear Plant in Ohio. See JX 41. The NRC had determined
that the configuration at Plant Perry required lateral seismic restraints to ensure the
stacked equipment did not tip. See id. at 4. Despite the fact that Plant Perry used the
same stack-up configuration during loading as Plant Farley, Alabama Power concluded
that the new requirement did not apply to Plant Farley and continued with the loading
campaign. See ECF No. 163 at 80-81, 85 (Tr. 294:25-295:2; 299:19-20 (Channell)).
Shortly thereafter, the NRC notified Alabama Power that it must stop the loading
campaign or risk the issuance of a willful violation of its regulations. See id. at 85 (Tr.
299:21-24 (Channell)).
Plant Farley immediately stopped the loading campaign. See id. at 87 (Tr. 301:910). The plant incurred significant costs related to the delay and the procurement of
seismic restraints because of this series of events.
a.

Seismic Restraint Hardware

As a result of the conclusions reached by the NRC regarding the need for seismic
restraints, Alabama Power sent a letter in April 2011 to the NRC explaining its
disagreement with its conclusions that a freestanding stack-up configuration was not
permitted absent prior approval pursuant to 10 C.F.R. Part 72. See PX 77. At the same
time, however, plaintiff proceeded with designing and procuring adequate seismic
restraints to hedge against the possibility that the disagreement with the NRC would not
be resolved before loading became imperative to the operation of Plant Farley. See ECF
No. 163 at 88, 95, 97-98, 147, 150-55, 158 (Tr. 302:13-18, 309:20-22, 311:23-312:9,
361:14-25, 364:6-369:1, 372:18-25 (Channell)).
56

In June 2011, the NRC responded to Alabama Power’s letter and provided certain
conditions under which Plant Farley would be permitted to continue loading without
seismic restraints. See JX 25. Alabama Power concluded that such conditions were met,
and continued the loading campaign without the restraints. See ECF No. 163 at 107, 112,
(Tr. 321:5-13, 326:6-22 (Channell)). Alabama Power incurred $1,007,358.28 in design
and fabrication costs related to the seismic restraints hardware that it ultimately did not
need. See ECF No. 141-1 (“Farley Seismic Restraint Hardware”).
As an initial matter, plaintiff argues defendant’s breach caused it to incur the
damages for seismic restraints related to the stack-up operation because, as Mr. Brewer
testified, “[i]n the but-for world, there would be no stack-up.” ECF No. 224 at 48; ECF
No. 174 at 55 (Tr. 2378:21-22 (Brewer)). Plaintiff further contends that:
[b]ecause there was no guarantee that the NRC would agree with [plaintiff’s]
position that there were no regulatory issues with the freestanding stack-up
configuration at Plant Farley, it was not only reasonable, but also absolutely
necessary for [plaintiff] to also pursue seismic restraints in order to ensure
that it could complete its dry cask loading campaign ahead of the 2011 and
2012 refueling outages.
ECF No. 224 at 48. If plaintiff had been unable to load fuel prior to the planned outages,
it would not have had space in the spent fuel pool to prepare the new fuel. In that case, it
would have had to “load new fuel directly from the new fuel vault into the reactor core.”
Id. (citing ECF No. 163 at 147-48, 150-55 (Tr. 361:23-362:25, 364:6-369:1 (Channell))).
Doing so would be time-consuming and expensive, and thus was unreasonable and not
plaintiff’s practice. See id. (citing ECF No. 163 at 158 (Tr. 372:18-25 (Channell))).
Defendant insists that plaintiff should not recover the costs of the seismic
restraints because plaintiff’s “urgent need to load casks in 2011 was the result of [the]
business decision” to cancel the 2009 loading campaign. 11 ECF No. 229 at 26; see also
ECF No. 163 at 55-56, 62 (Tr. 269:23-270:12, 276:13-14 (Channell)). A 2009 loading
campaign would have alleviated some of the pressure of the 2011 loading campaign. See
ECF No. 229 at 27 (citing ECF No. 163 at 220 (Tr. 434:4-8 (Channell))). Defendant
argues that because plaintiff did not justify at trial the reasonableness of the decision to

11

Defendant also argues that the need to conduct the 2011 loading campaign was not as
critical as plaintiff suggests. See ECF No. 229 at 29. Mr. Brewer testified that plaintiff would
have had the space to “pre-wet” eight of the sixty-eight assemblies even without the 2011
campaign. ECF No. 173 at 153 (Tr. 2210:4-10 (Brewer)). Because such an approach would
result in plaintiff loading a considerable majority of the new fuel directly into the reactor core, it
does not adequately address plaintiff’s concerns. See ECF No. 232 at 23 (explaining why
loading fuel directly into the reactor core is an unreasonable option).

57

cancel the 2009 campaign, defendant should not be liable for the need to procure seismic
restraints in 2011. See ECF No. 229 at 29-30.
In the court’s view, defendant’s focus is misplaced. The issue before the court is
whether plaintiff’s approach to resolving the NRC’s concerns—which arose
unexpectedly on the eve of an important loading campaign—was reasonable, not whether
plaintiff’s decision to cancel the 2009 loading campaign was reasonable.
The evidence demonstrates, by a preponderance of the evidence, that: (1)
plaintiff’s dry storage program was necessitated by defendant’s breach, (2) the 2011
loading campaign was critical to Plant Farley’s continued operation, (3) the NRC’s
concerns about the stack-up operation were unforeseeable prior to the beginning of the
loading campaign, and (4) plaintiff responded reasonably in pursuing multiple paths to
resolving the NRC’s concern while ensuring the critical loading campaign would be
successful.
Accordingly, Alabama Power is entitled to recover $1,007,358.28 in design and
fabrication costs related to the seismic restraints at Plant Farley. See ECF No. 141-1
(“Farley Seismic Restraint Hardware”).
b.

Holtec Storage Fees

Due to the delay in resolving the NRC’s concerns, Plant Farley ultimately loaded
three casks rather than the seven or eight it had initially planned to load in 2011, and a
number of unused HI-STORMs remained stored on the fabrication pad at the plant. See
ECF No. 163 at 159-60 (Tr. 373:8-374:11 (Channell)). Alabama Power, therefore, could
not store the additional casks it had ordered for the previously scheduled 2012 loading
campaign, delayed the delivery until 2013, and paid Holtec to store the casks until then.
See id. at 161 (Tr. 375:5-12 (Channell)). The storage costs amounted to $274,495.57.
See ECF No. 141-1 (“Farley Holtec Storage Fees”).
In discussing this issue, the parties largely refer back to the arguments they
asserted with regard to the 2010 Holtec contract price adjustment for delayed cask
delivery. Plaintiff argues that the financial benefit to ratepayers justified the decision to
pay Holtec to store the casks rather than accept delivery, see ECF No. 224 at 49-50, ECF
No. 232 at 24-25; and defendant argues that plaintiff’s decision was unreasonable
because it failed to fully consider the options, see ECF No. 229 at 30-32.
However, one notable difference is here, Alabama Power quantified the cost of
storing the casks on the ISFSI pad, stating that it “viewed incurring those costs as more
reasonable than paying the roughly $2 million to $4 million in final milestone payments
and then beginning to incur [Allowance for Funds Used During Construction (AFUDC)]
and other carrying costs on those capital assets.” ECF No. 224 at 50. This is precisely
58

the sort of information the court finds useful in evaluating the reasonableness of
plaintiff’s decision. In this instance, however, the court cannot credit the comparison
because neither the estimated milestone payments nor the other finance charges are
supported by citation to the record.
Accordingly, because Alabama Power has not established sufficient facts to
demonstrate that its mitigation decision was reasonable, it is not entitled to recover
$274,495.57 for storage costs. See ECF No. 141-1 (“Farley Holtec Storage Fees”).
c.

Loading Campaign Delay Charges

Plant Farley incurred delay charges related to the 2011 loading campaign for two
reasons. First, the loading campaign was initially scheduled to begin on February 28,
2011, but was delayed until March 15, 2011, as a result of necessary work to the forced
helium dehydration system. See ECF No. 163 at 74 (Tr. 288:6-289:19 (Channell)).
Alabama Power wanted to complete the work while the loading campaign began, but
Holtec objected to that plan and insisted that the work be done first. See id. at 75 (Tr.
289:10-14 (Channell)); see also id. at 209 (Tr. 423:13-21 (Channell)) (noting that while
Holtec insisted that the forced helium dehydration skid work was done prior to loading, it
was Alabama Power’s responsibility to complete the work). This delay resulted in an
upward price adjustment on Alabama Power’s contract with Holtec in an amount of
$227,370. See id. at 213 (Tr. 427:4-7 (Channell)); DX 61.
Second, after the loading campaign began, the NRC’s concerns caused further
delay. See ECF No. 163 at 87 (Tr. 301:5-10 (Channell)). Loading casks in 2011 was
“absolutely essential” ahead of planned outages in 2011 and 2012. See id. at 113 (Tr.
327:4-7 (Channell)). If Plant Farley were unable to load casks in 2011, it would have
been forced to take actions that would extend outages, thereby either decreasing revenue
or increasing generation costs. See id. at 155-57 (Tr. 369:24-371:19 (Channell)).
Because the loading campaign was critical, Alabama Power believed that it needed to
ensure that the crew scheduled to conduct it would be available as soon as it could
proceed. See id. at 170-71 (Tr. 384:23-385:7 (Channell)). As such, Alabama Power
retained the crew on-site while it resolved the NRC’s concerns to prevent that crew from
being reassigned to another campaign and becoming unavailable when Plant Farley was
ready to proceed with loading. See id.; see also id. at 171-72 (Tr. 385:13-386:4
(Channell)). Plaintiff’s concern that releasing the crew would unduly extend the delay
was not confirmed, but rather was a “general understanding” of the state of the industry.
See DX 173A at 171:24-172:7. The crew was ultimately retained but idle for
approximately three months. See ECF No. 224 at 53. Combined with the initial delay
costs, Alabama Power incurred delay-related costs of $1,964,500. See ECF No. 141-1
(“Farley NRC Regulatory Concern Loading Campaign Delay Charges”).

59

Alabama Power presents the first delay charge as a result of an unremarkable
disagreement between plaintiff and Holtec. Plaintiff explains that it intended to make the
necessary repairs to the forced helium dehydration system “in parallel with the start of the
loading campaign, but Holtec ‘wanted to ensure that that was completed before we
actually began loading, so we took a two-week [delay] to ensure that those modifications
were complete, and then we began loading two weeks later.’” ECF No. 224 at 51 (citing
ECF No. 163 at 75 (Tr. 289:10-14 (Channell))).
Defendant argues that plaintiff should not recover costs for the first delay for two
reasons. First, as plaintiff acknowledges, it was plaintiff’s responsibility to complete the
repairs. See ECF No. 229 at 34-35. And second, as Mr. Channell testified, Holtec’s
request that the repairs be completed before loading began was reasonable. See id. at 35.
In the court’s view, neither of these facts necessarily renders unreasonable plaintiff’s
initial plan to complete the repairs while the loading campaign began. Absent evidence
that Holtec’s request was more than an alternative, reasonable proposal that required
plaintiff to complete a discrete and relatively brief task, defendant has not demonstrated
that the delay charges were unreasonably incurred and therefore unrecoverable. See
Entergy Nuclear, 95 Fed. Cl. at 184 (stating that, to demonstrate plaintiff is not entitled to
mitigation damages, defendant must show that plaintiff’s efforts were unreasonable).
Alabama Power’s explanation for its decision to incur the second delay charge,
however, is less persuasive. Plaintiff argues that it reasonably chose to retain the idle
Holtec loading crew indefinitely in the hope of getting an NRC decision regarding the
stack-up operation “sooner [rather] than later,” due to the critical nature of the 2011
loading campaign. See ECF No. 232 at 26 & n.11 (quoting ECF No. 163 at 171-72 (Tr.
385:13-386:4 (Channell))). As with the storage fees the court has previously addressed,
plaintiff made no effort discernable from the record to evaluate or compare options
before indefinitely retaining the Holtec crew. Instead, it appears that plaintiff acted out of
concern that it would not be able to re-schedule the same experienced crew based on a
“general understanding” of the state of the industry. See DX 173A at 171:24-172:7. Mr.
Channell testified in his deposition that plaintiff did not discuss the circumstances with
Holtec or rely on any documented information about the relevant labor market. See id. at
172:8-22.
In the court’s view, it was unreasonable for plaintiff to incur delay charges for an
open-ended amount of time—which ultimately amounted to $1,737,130—on the basis of
only a general impression of the state of the labor market.
Accordingly, Alabama Power is entitled to recover $227,370 for the cost of the
first delay charge. See ECF No. 163 at 213 (Tr. 427:4-7 (Channell)); DX 61. But
because plaintiff has not established sufficient facts to demonstrate that its decision to
indefinitely retain the idle Holtec crew was reasonable, Alabama Power is not entitled to
recover the remaining $1,737,130 for delay charges.
60

D.

Fleet Issues Related to Plants Hatch, Vogtle, and Farley

Plaintiffs also claim damages that are not specific to one plant, including: (1)
internal labor costs for daily vent inspections; and (2) instrument tube tie rod (ITTR)
repairs.
1.

Internal Labor Costs Related to Daily Vent Inspection

Plaintiffs store spent nuclear fuel in multi-purpose canisters, or MPCs, which are
in turn stored in HI-STORM 100 overpacks on ISFSI pads. See ECF No. 224 at 171.
Each overpack has four vents to allow air to circulate around the MPC and regulate
temperature. See ECF No. 163 at 266 (Tr. 480:23-25 (Martin)); id. at 18-19 (Tr. 232:16233:8 (Channell)). The technical specifications require that plaintiffs monitor the vents
for proper cooling and airflow at least once every twenty-four hours. See id. at 179, 184
(Tr. 393:5-13, 398:7-15 (Channell)). Although such monitoring may be accomplished
either by visual inspection or electronic monitoring, plaintiffs conduct visual inspections
because they consider such inspections to be more reliable. See id. at 180-81 (Tr.
394:16-395:10 (Channell)).
Plant personnel perform the daily visual inspections of the overpacks as part of
outside rounds at each site. See id. at 181 (Tr. 395:8-15 (Channell)). While the outside
rounds included other tasks, the vent inspections involved a defined process, which Mr.
Martin explained as follows:
[W]hen you do a vent inspection, it is not just the time in the ISFSI, observing
the vents to make sure they’re clear of blockage. There are special
characteristics of a nuclear power plant that make you sign into radiation
work permits. There’s more than just being inside the ISFSI, the independent
spent fuel storage installation. There’s a process of getting there, going
through the right processes, to be able to access the ISFSI, and then doing
the vent inspection and then going back through the back end of the process,
to be able to perform the vent inspection.
Id. at 269-70 (Tr. 483:25-484:10 (Martin)). Despite this defined process, however, plant
personnel who conduct the inspections do not track the time spent doing so separately
from the other tasks performed during rounds. See id. at 183 (Tr. 397:7-14 (Channell)).
At Plant Vogtle and Plant Farley, the inspections were performed twice per day, and at
Plant Hatch, the inspections were performed once per day. See id. at 181-82, 184-85 (Tr.
at 395:16-396:2, 398:16-399:5 (Channell)).
Because the time is not separately tracked, plaintiffs estimated the costs associated
with the vent inspections. Mr. Channell conferred with the plant personnel who perform
the inspections and they estimated that the inspections take “roughly 45 minutes per day
61

to go through the process of getting the paperwork, going out to the ISFSI, doing the
inspections, completing the paperwork, and moving on to the next test.” Id. at 186 (Tr.
400:9-19 (Channell)). Based on his knowledge of plant operations and geography, Mr.
Channell considered the forty-five-minute estimate to be “reasonable.” Id. at 198-99 (Tr.
at 412:11-413:3 (Channell)).
Mr. Martin also personally observed vent inspections at each plant and tracked the
required time. See id. at 265 (Tr. 479:20-21 (Martin)); see also PX 141, PX 143, PX 144,
and PX 145. The process observed by Mr. Martin included: (1) visiting the Radiation
Protection office to collect safety equipment and required paperwork, see id. at 281-82
(Tr. 495:2-24, 496:13-17) (Martin)); ECF No. 164 at 14-16, 27, 30 (Tr. 533:19-534:4,
534:20-535:5, 546:3-12; 549:1-4 (Martin)); (2) travelling to the ISFSI at each plant, on
foot at Plants Vogtle and Farley, see id. at 19, 28 (Tr. 538:5-10, 547:11-13 (Martin)), and
by vehicle at Plant Hatch, 12 see ECF No. 163 at 289 (Tr. 503:5-13 (Martin)); (3) visually
inspecting the casks, see id. at 294 (Tr. 508:2-11) (Martin)); ECF No. 164 at 22, 29 (Tr.
541:4-12, 548:7-11 (Martin)); (4) conducting a check for contamination upon exiting the
ISFSI pad, see PX 145; (5) returning to the Radiation Protection office, id.; and (6)
passing through personnel contamination monitors in the Radiation Protection offices,
see id.; ECF No. 163 at 296 (Tr. 510:5-18 (Martin)).
The plant personnel who performed inspections at Plant Hatch earned hourly rates
during the damages period at issue as follows: $33.56 in 2011; $36.37 in 2012; $37.28 in
2013; and $38.40 in 2014. See PX 138 at 4; see also ECF No. 224 at 143. The plant
personnel who performed inspections at Plant Vogtle earned hourly rates during the
damages period at issue as follows: $33.56 in 2011; $36.37 in 2012; $37.28 in 2013; and
$38.40 in 2014. See id. at 5. And the plant personnel who performed inspections at Plant
Farley earned hourly rates during the damages period at issue as follows: $32.15 in 2011;
$36.37 in 2012; $37.28 in 2013; and $38.40 in 2014. See id. at 3.
Plaintiffs estimate that they have incurred damages in an amount of $143,189.44
for vent inspections, divided between plants as follows: (1) $39,860.74 at Plant Hatch;
(2) $24,379.20 at Plant Vogtle; and (3) $78,949.50 at Plant Farley. See ECF No. 224 at
151; see also ECF No. 170 at 65 (Tr. 1722:2-13 (Metcalfe)). Plaintiffs’ expert Mr.
Metcalfe, testified that:
to arrive at the sum total of damages, . . . [he] took the number of hours that
Plaintiffs estimated it took to perform vent inspection activities each time
they were performed and then multiplied that number by (1) the number of
inspections per day and (2) the number of days per year to arrive at the
12

The more remote ISFSI at Plant Hatch required additional security measures both before
and after inspections. See ECF No. 163 at 290, 294, 295 (Tr. 504:18-20, 508:17-25, 509:13-19
(Martin)); see also PX 145.

62

number of manhours per year Plaintiff estimated it took to perform vent
inspection activities at each of their plants.
ECF No. 224 at 144 (citing ECF No. 170 at 93-94 (Tr. 1750:13-1751:6) (Metcalfe))).
That number was then multiplied by the applicable hourly rate for each plant in each
year. See id. (citing ECF No. 170 at 94 (Tr. 1751:7-15 (Metcalfe))).
During his inspection observations, Mr. Martin observed that vent inspections at
Plant Hatch took 1.17 hours, at Plant Vogtle took 37 minutes, and at Plant Farley took 40
minutes. See id. at 150 (citing ECF No. 164 at 38, 39 (Tr. 557:5-7, 558:1-3, 558:7-9
(Martin))). Based on these estimates, Mr. Martin calculated the cost of vent inspections
at the three plants for the damages period at $184,000. See id. (citing ECF No. 164 at 40
(Tr. 559:8-17 (Martin))). According to Mr. Channell, however, plaintiffs chose not to
revise their original estimates so as to “not be at risk of over-claiming what the time
was.” Id. (citing ECF No. 163 at 200 (Tr. 414:23-25 (Channell))).
Defendant does not deny that its breach caused plaintiffs to incur these costs;
rather, defendant challenges plaintiffs’ damages estimates. See ECF No. 173 at 255 (Tr.
2312:17-25 (Brewer)); ECF No. 229 at 99-102. Defendant criticizes both the need for
estimates and the method for arriving at them. According to defendant, “[d]espite
knowing that they would inevitably seek to recover costs for conducting these
inspections, plaintiffs chose not to track their actual time and cost.” ECF No. 229 at 99.
Defendant attacks the initial forty-five-minute estimate as “unreliable,” id., and then
attempts to undermine the credibility of Mr. Martin’s observations meant to verify the
reasonableness of the initial estimate, see id. at 100, 102. In particular, defendant takes
issue with Mr. Martin’s failure to compare the number of casks at each plant at the time
of his observations with the number present during the claims period. See id. It also
criticizes plaintiffs’ practice at Plants Vogtle and Farley of conducting two inspections
per day rather than one, as required by the storage cask licenses. See id. at 101.
As a starting point, plaintiffs correctly argue that estimates are an acceptable basis
for their recovery. See ECF No. 224 at 146. As the Federal Circuit has held, “where
responsibility for damage is clear, it is not essential that the amount thereof be
ascertainable with absolute exactness or mathematical precision.” Nat’l Australia Bank
v. United States, 452 F.3d 1321,1327 (Fed. Cir. 2006) (quoting Bluebonnet, 266 F.3d at
1355. Instead, “the court’s duty is to make a fair and reasonable approximation of the
damages.” Bluebonnet, 266 F.3d at 1356-57 (internal citation omitted).
To verify the reasonableness of the forty-five-minute estimate on which plaintiffs
first proceeded, plaintiffs asked Mr. Martin to personally observe vent inspections and
keep careful notes of the associated activities and the time required to perform them. See
ECF No. 224 at 147 (citing ECF No. 163 at 265 (Tr. 479:20-21 (Martin))). Mr. Martin
63

observed inspections at each of the three plants and simultaneously recorded notes on the
process. See PX 141, PX 143, PX 144, and PX 145.
In the court’s view, plaintiffs’ approach to developing estimates for information
they did not otherwise separately track in the normal course of their operations was
deliberate and rational. Defendant criticizes Mr. Martin’s process because it did not
account for every variable between the time of his observations and the claims period.
See ECF No. 229 at 99-102. “Absolute exactness or mathematical precision,” however,
is not the standard by which estimates are judged. Nat’l Australia Bank, 452 F.3d at
1327. The court finds that plaintiffs estimates based on Mr. Martin’s personal
observations, allow the court to “make a fair and reasonable approximation of the
damages” suffered by plaintiffs. Bluebonnet, 266 F.3d at 1356-57.
In addition, the court sees no reason to penalize plaintiffs for their decision to
conduct multiple daily inspections at Plants Vogtle and Farley. Plaintiffs conducted the
extra inspections “to ensure no inspection is missed within any given 24-hour period to
avoid the harsh NRC penalties.” ECF No. 232 at 77 (citing ECF No. 163 at 181-82, 18485 (Tr. 395:16-396:2, 398:16-399:1, 399:6-17 (Channell))). Mr. Brewer characterized
this decision as “similar to other things I have seen at nuclear plants where the
requirement to do something once is good, and so they say, well, to make sure we don’t
do it wrong the first time or we don’t miss it the first time, we’ll do it a second time.” Id.
at 78 (citing ECF No. 173 at 120 (Tr. 2177:13-18 (Brewer))).
As this court has previously observed, “[n]uclear fuel storage is inherently a
sensitive and expensive endeavor.” Yankee Atomic, 113 Fed. Cl. at 333. The court
further acknowledges that companies engaged in the endeavor are run by human beings
capable of making mistakes, and does not fault plaintiffs for attempting to build
confidence into their systems in this way. Defendant has not demonstrated that plaintiffs
acted unreasonably by conducting more vent inspections than required.
Accordingly, plaintiffs are entitled to recover damages in an amount of
$143,189.44 for vent inspections, divided between plants as follows: (1) $39,860.74 at
Plant Hatch; (2) $24,379.20 at Plant Vogtle; and (3) $78,949.50 at Plant Farley. See ECF
No. 224 at 151; see also ECF No. 170 at 65 (Tr. 1722:2-13 (Metcalfe)).
2.

Instrument Tube Tie Rod Repairs

In May 2001, Westinghouse informed plaintiffs that certain fuel assemblies
present at Plants Farley and Vogtle had a design defect. See ECF No. 224 at 151-52
(citing ECF No. 162 at 143 (Tr. 143:6-17 (Williams))); PX 116. Because the defect was
first identified at the North Anna Nuclear Generating Station, assemblies with this defect
are referred to as “North Anna fuel.” See id. at 151 (citing ECF No. 169 at 7 (Tr.
64

1380:15-18 (Supko))). Westinghouse also notified plaintiffs at that time that it had
developed a Nozzleless Handling Tool which could be used with the North Anna fuel:
Westinghouse has designed tools to handle 14x14, 15x15 or 17x17 fuel
assemblies that do not have a top nozzle due to difficulties experienced
during fuel repair. This tool can also be used to handle assemblies where the
top nozzle is still present, yet the attachment of the top nozzle to the fuel
assembly is suspect. . . . Refinements of this tool’s design for the more
frequent use anticipated with this nozzle separation issue are planned.
Id. at 152 (citing PX 116 at 11).
Plaintiffs inspected their North Anna fuel in 2002, 2003, and 2007. See id. (citing
ECF No. 162 at 148 (Tr. 148:5-6 (Williams))). They used the NHT in the 2007
inspections. See id. (citing ECF No. 162 at 150 (Tr. 150:9-12 (Williams))). “While
using the NHT in 2007, [plaintiffs’] personnel had to perform lengthy inspections of [part
of the NHT], which had some associated radiation dose” with it. id. at 153 (citing ECF
No. 162 at 149 (Tr. 149:10-15 (Williams)). In addition, “plaintiffs discovered that the
NHT would not fully seat on top of North Anna type fuel assemblies . . . , and would
begin having added difficulties after several moves that would require rebuilding the
tool’s ‘gripper fingers.’” ECF No. 229 at 103 (citing DX 23). Mr. Loftin testified at trial
that the rebuilds cost approximately $50,000 each, in addition to the $250,000 cost for the
NHT itself. See ECF No. 224 at 153 (citing ECF No. 170 at 169 (1826:1-13 (Loftin))).
In 2008, Plant Farley began repairing the ITTRs on the North Anna fuel in order to
better facilitate handling assemblies with a standard fuel handling tool rather than the
NHT. See id. (citing ECF No. 162 at 135, 150 (Tr. 135:9-16, 150:16-17 (Williams))).
Plaintiffs were concerned about the ability to move assemblies before and after refueling
outages to ensure that plaintiffs were meeting “certain criticality (or heat load)
requirements that are required by its NRC licenses.” Id. at 154 (citing ECF No. 162 at
150, 184 (Tr. 150:18-23, 184:2-7 (Williams))), ECF No. 169 at 129 (Tr. 1502:6-21
(Supko))). Because the DOE had failed to perform under the Standard Contract, the
pools were full, and “it became very difficult to . . . manage the spent fuel pools at the
plants.” ECF No. 162 at 150-51 (Tr. 150:24-151:3 (Williams)). This resulted in the need
to move fuel frequently, which lead Plant Farley to make permanent ITTR repairs. See
id. The permanent repairs improve the ability to handle the fuel both in the pools, when
loaded into dry casks, and potentially back into the pools when the DOE does perform.
See id. at 158 (Tr. at 158:4-11 (Williams)). For the same reasons, Plant Vogtle decided
to make permanent ITTR repairs. See id. at 159-60 (Tr. 159:17-21, 160:2-12
(Williams)).
In March 2009, Westinghouse recommended that utilities discontinue use of the
NHT in their spent fuel pools pending a technical review, see id. at 165 (Tr. 165:10-15
65

(Williams)), and on July 2, 2009, Westinghouse issued a technical bulletin in which it
recommended that utilities stop using the NHT in operations such as dry cask loading,
see JX 21 (Westinghouse Technical Bulletin).
After the inspections, Plant Farley loaded 148 assemblies suspected of having
defects into dry storage. See ECF No. 162 at 174 (Tr. 174:5-9 (Williams)). Plant Farley
prioritized loading North Anna fuel to avoid stress corrosion cracking that could
contaminate the pool, and to avoid the need for continued inspection and moving of
potentially damaged fuel. See id. at 183 (Tr. 183:2-13 (Williams)). Plant Farley had 980
suspect assemblies, see id. at 170 (Tr. 170:23 (Williams)), and Plant Vogtle had 193, see
id. at 171 (Tr. 171:3 (Williams)). Plaintiffs argue that, in the non-breach world, the
repairs would not have been necessary because they would have prioritized loading all
suspect assemblies to the government and that they had sufficient allocations to do so
prior to March 2009. See ECF No. 224 at 159-60; see also ECF No. 162 at 187 (Tr.
187:14-24 (Williams)) (asserting that plaintiffs had the authority to decide which fuel was
loaded and when). In that case, plaintiffs “would have used the NHT (just as other
utilities did) to pick the fuel up once and load them into DOE casks.” ECF No. 224 at
158 (citing ECF No. 162 at 174 (Tr. 174:5-7 (Williams)), ECF No. 169 at 9 (Tr. 1382:2126 (Supko))).
At Plant Farley, 299 suspect assemblies were repaired with ITTRs during the
claim period at issue, at a cost of $1,047,905.50. See id. at 163 (citing ECF No. 162 at
174, 196 (Tr. 174:5-9, 174:21-24, 196:14-16 (Williams)); ECF No. 169 at 9 (Tr. 1382:1013 (Supko)); ECF No. 170 at 69 (Tr. 1726:22-24 (Metcalfe))); ECF No. 141-1 (“Farley
and Vogtle Instrument Tub Tie Rod (‘ITTR’) Repairs”). At Plant Vogtle, 193 assemblies
were repaired with ITTR during the claim period at issue, at a cost of $1,952,708. See id.
(citing ECF No. 162 at 175 (Tr. 175:9-12 (Williams)); ECF No. 170 at 69 (Tr. 1726:2224 (Metcalfe))); ECF No. 141-1. The total claim for ITTR repairs, then, is
$3,000,613.50. See id.
Ms. Supko testified at trial that plaintiffs “had enough acceptance rights at each
plant to allow it to load all of its North Anna type fuel to the [g]overnment by March
2009—[the] date when Westinghouse recommended that nuclear utilities stop using the
NHT.” ECF No. 224 at 158 (citing JX 21). From 2001 through 2008, Plant Farley had
acceptance rights for 991 assemblies, and it had 980 suspect assemblies. See id. at 159
(citing ECF No. 169 at 15-16 (Tr. 1388:25-1390:24 (Supko))). From 2007 through 2008,
Plant Vogtle had acceptance rights for 191 assemblies, and it had 193 suspect assemblies.
See id. at 160 (citing ECF No. 162 at 171 (Tr. 171:3 (Williams)), ECF No. 169 at 18 (Tr.
1391:3-7 (Supko))). According to plaintiffs, Plant Vogtle would have loaded the
remaining two suspect assemblies to the DOE at the beginning of 2009, a year in which it
had acceptance rights for another 156 assemblies. See id. at 159-60.

66

Defendant challenges plaintiffs’ version of the non-breach world, summarizing its
position as follows:
the evidence at trial demonstrated that: (1) use of the NHT to load North
Anna fuel assemblies to DOE would not have been allowed; and (2) even if
it had been, the cost to plaintiffs of doing so would have exceeded the cost
of making the ITTR repairs that they made in the actual world. And, even if
the evidence had not demonstrated those facts by a preponderance of the
evidence, plaintiff still would have failed to carry their burden on this issue
as a matter of law, because plaintiffs failed to make any attempt to “prove
the extent to which [their] incurred costs [for the ITTR repairs] differ from
the costs [they] would have incurred in the non-breach world” for loading
DOE casks using the NHT.
ECF No. 229 at 108-09 (quoting Energy Nw., 641 F.3d at 1306); see also S. Nuclear, 637
F.3d at 1304 (“As we held in Yankee Atomic, ‘[b]ecause plaintiffs . . . are seeking
expectancy damages, it is incumbent upon them to establish a plausible ‘but-for’ world.”)
(citations omitted).
In their reply, plaintiffs insist that the difference between costs to manage the
North Anna fuel in the actual and non-breach worlds is “completely irrelevant and not
part of Plaintiffs’ burden.” ECF No. 232 at 83. Plaintiffs, instead, claim that their burden
here is “only to provide support for the costs it actually incurred to make the ITTR
repairs.” Id. The court disagrees. As part of their causation argument, plaintiffs must
present a “comparison between the breach and non-breach worlds.” Yankee Atomic, 536
F.3d at 1273. The plaintiff bears the burden of proving “the extent to which his incurred
costs differ from the costs he would have incurred in the non-breach world.” Energy
Nw., 641 F.3d at 1306.
Even accepting plaintiffs’ position that in the non-breach world they would have
loaded the North Anna fuel to the DOE using the NHT, the evidence demonstrates that
there would have been material costs associated with doing so. The costs, at minimum,
would not have been zero. See ECF No. 170 at 169 (Tr. 1826:1-13 (Loftin)) (indicating
that the cost of the NHT was $250,000, and the tool required rebuilds after some period
of use that cost approximately $50,000 each). Plaintiffs, however, have not presented
evidence of the specific costs that they would have incurred to purchase or rent the NHT
at each plant or the costs to perform the necessary maintenance or rebuilds on the tool to
load the North Anna fuel to the DOE in the non-breach world. Absent that information,
the court cannot make the requisite comparison to support an award of damages to
plaintiffs.

67

Accordingly, plaintiffs are not entitled to recover the $3,000,613.50 for making
ITTR repairs. See ECF No. 141-1 (“Farley and Vogtle Instrument Tube Tie (‘ITTR’)
Repairs”).
E.

Reduction for Allocation of Indirect Costs

At trial, defendant’s damages expert, Mr. Larry Johnson, sought “to reduce
[plaintiffs’] damages claim by assigning an additional $455,518 in ‘indirect costs’ to the
categories of damages that the [g]overnment challenges.” ECF No. 224 at 163; see also
id. at 164 (itemizing the categories for which Mr. Johnson allocated indirect costs); DDX
G at 11 (defendant’s demonstrative exhibit displaying Mr. Johnson’s proposed allocated
indirect costs).
Plaintiffs challenge Mr. Johnson’s allocation of indirect costs on several grounds.
First, plaintiffs note that in making these allocations Mr. Johnson is attempting to recreate information that plaintiffs could have provided to defendant had it asked in
discovery. See id. at 165. Second, plaintiffs assert that Mr. Johnson’s methodology is
unsound and was not disclosed prior to his testimony at trial. See id. at 164 & n.91 And
finally, plaintiffs argue that Mr. Johnson’s allocation of indirect costs conflicts with the
facts in this case. Specifically, plaintiff states that “Mr. Johnson’s approach to indirect
cost allocation, . . . is flagrantly inconsistent with Mr. Channell’s testimony, not
representative of [plaintiffs’] normal accounting policies and procedures (as required
under [Generally Accepted Accounting Principles] and [Federal Energy Regulatory
Commission] regulations), and ignores inconsistencies like the actual time periods in
which the costs were incurred.” Id. at 169.
The court agrees with plaintiffs. As an initial matter, the most reasonable way to
reach an understanding of how indirect costs affect plaintiffs’ recovery is through
stipulations or a cooperative and comprehensive discovery process. Defendant evidently
did not ask effective questions in discovery, and plaintiff did not volunteer clarifying
information. See id. at 165 (stating that plaintiffs “diligently responded to the
[g]overnment’s requests for labor costs when the [g]overnment asked for the
quantification,” and providing an example) (emphasis in original).
Perhaps the more fundamental problem with Mr. Johnson’s approach, however, is
that the methodology he used divorces the indirect cost calculations from the specific
projects at issue, and the methodology is not otherwise supported by any practice or
authority. At trial, Mr. Johnson characterized his method as “a ‘formulaic expression’ to
apply in circumstances where the ‘total amount of costs [related to a claim adjustment]
would involve labor but not [already] include the labor.’” ECF No. 229 at 110 (quoting
ECF No. 174 at 106-07 (Tr. 2429:25-2430:2 (Johnson))). Defendant explained the
formula as follows:
68

First, a ratio is calculated between the direct cost of the adjustment and the
total of all direct costs included in the claim. This fraction represents the
proportional “relationship” between the direct cost of a particular adjustment
and the total amount of all direct costs included in the claim. For example,
if the direct cost of a given damages category was $1 and the total of all direct
costs included in the claim was $10, then the particular category would
represent 10% of all direct costs claims. The proportional relationship
reflecting this ratio is then applied to the total applicable labor costs claimed,
which allows the [g]overnment to estimate, through allocation, the amount
of labor costs that are applicable to the direct costs of the adjustment.
ECF No. 229 at 110 (internal citations omitted). It is clear to the court that this formula is
untethered from the facts in this case. It fails to address the manner in which plaintiffs
kept their records or when particular costs were incurred. Absent a basis for concluding
that such a generalized approach is meaningful in this context—which defendant has not
provided in these cases—the court finds that defendant has failed to present evidence that
the methodology is sufficiently reliable to reduce plaintiffs’ recovery. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999) (explaining that the trial court is tasked with
the “gatekeeper” function under Federal Rule of Evidence 702, to “ensur[e] that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand”)
(internal citation omitted).
Accordingly, the court declines to reduce plaintiffs’ recovery through defendant’s
theory of indirect cost allocation.
F.

Defendant’s Offset Claim

The final damages issue in these cases is defendant’s request for “an offset of
$3,345,106 for the economic benefit, or profit, that plaintiffs obtained during the current
claim period by including SNF storage capital assets in their respective profit-earning rate
bases.” See ECF No. 223 at 7 (citing ECF No. 174 at 209 (Tr. 2532:10-15 (Cain)); ECF
No. 178-65 at 3 (DDX Q at 3)).
Defendant is entitled to an offset against plaintiffs’ damages when plaintiffs have
received a financial benefit as “a direct consequence of the government’s breach.”
LaSalle Talman Bank, F.S.B. v. United States, 317 F.3d 1363, 1373 (Fed. Cir. 2003). Put
another way, “[w]here the defendant’s wrong or breach of contract has not only caused
damage but has also conferred a benefit upon plaintiff . . . which he would not have
otherwise reaped, the value of this benefit must be credited to defendant in assessing the
damages.” Id. at 1372. To recover for the offset, defendant must demonstrate a “fair and
reasonable approximation of the damages.” Caroline Hunt Trust Estate v. United States,
65 Fed. Cl. 271, 330 (2005), aff’d in relevant part, rev’d on other grounds, 470 F.3d 1044
(Fed. Cir. 2006).
69

Plaintiffs’ “shareholders provide the equity capital that Alabama Power and
Georgia Power require to run their utility operations.” ECF No. 230 at 5. That equity
capital is used, in part, for projects such as the dry storage necessitated by defendant’s
breach of the Standard Contracts. See id. Plaintiffs acknowledge that the shareholders
who make such investments in infrastructure “get a return.” Id. According to plaintiffs,
however, this return on investments should not be characterized as a profit for the
companies, but rather as a cost for their customers. According to plaintiffs,
“[s]hareholders who invest capital do indeed expect a return for the use of their money,
but, from the standpoint of [p]laintiffs’ customers, that shareholder return is a cost the
customers must pay for electric service.” Id.
The problem with plaintiffs’ theory is that, absent an offset for the amount of that
return, it essentially puts defendant in the position of paying the return to plaintiffs’
shareholders. The court understands plaintiffs’ concern that its customers not bear the
burden of that return, but as for-profit companies, plaintiffs are, in fact, in the position to
avoid that outcome. As defendant argues, “[w]hether or not plaintiffs will return their
SNF-related profits to their customers if the [c]ourt grants the [g]overnment its claimed
offset is legally irrelevant to whether the United States is required to pay for it.” ECF
No. 231 at 5-6. Plaintiffs have not provided either evidence or binding authority
sufficient to persuade the court to the contrary view. 13
The court finds that plaintiffs’ shareholders have received a financial benefit in the
form of a return on their equity investments in plaintiffs’ dry storage infrastructure.
Whether the benefit is characterized as a profit for shareholders or a cost to customers is a
matter of, at most, plaintiffs’ internal accounting, and at least, semantics. See DX 175A
at 66:6-67:20 (Alabama Power’s corporate representative testifying that in the context of
“return on capital,” the concepts of “profit,” “net income,” and “cost of equity” are
synonymous); ECF No. 175 at 40 (Tr. 2614:14-22 (Adams)) (Georgia Power’s corporate
representative testifying that “[t]he cost of equity is also called net income,” and
“represents what it is that we expect to pay to our equity investors through the
dividends”); id. at 50 (Tr. 2624:12-15 (Adams)) (Georgia Power’s corporate
representative agreeing that the terms “cost of equity” and “profit” are interchangeable).
13

Plaintiffs argue that the court should deny defendant’s offset claim for the same reason a
reduction in recovery was denied by this court in Duke Energy Progress, Inc. v. United States,
135 Fed. Cl. 279 (2017). See ECF No. 230 at 9. In that case the court found that defendant’s
requested offset was unrecoverable as too remote because it was dependent on “the result of
lengthy, challenging, and contested state agency proceedings.” Duke Energy, 135 Fed. Cl. at
298 (internal quotation marks and citations omitted). The cases before the court involve no such
complications in connecting defendant’s offset to its breach. Thus, the court finds Duke Energy
inapposite.

70

Defendant seeks the following offsets, based on plaintiffs’ quantification of
returns on equity: (1) $2,353,257 against Georgia Power’s recovery, and (2) $991,851
against Alabama Power’s recovery. 14 See ECF No. 223 at 12-15. The court finds that
plaintiffs’ calculations satisfy the requirement that defendant present a fair approximation
of the amount at issue. See Caroline Hunt, 65 Fed. Cl. at 330. The court, however,
understands these figures to be based on the damages sought by plaintiffs in these cases.
See ECF No. 223 at 7. Because the court, in this opinion, does not award plaintiffs all
requested damages, corresponding adjustments may be necessary to defendant’s offset
claim. To assist the court in entering accurate final judgments in these cases, the court
will direct the parties to file a joint motion for entry of judgment based on the rulings
herein.
IV.

Conclusion
Accordingly, for the foregoing reasons:
(1)

On or before July 14, 2023, the parties are directed to FILE a joint motion
for entry of judgment based on the rulings in this opinion; and

(2)

On or before July 14, 2023, the parties are directed to CONFER and
FILE a notice attaching the parties’ agreed upon redacted version of this
opinion, with any competition-sensitive or otherwise protectable
information blacked out.

IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge

14

The court notes that defendant states the offset total it seeks as “$3,345,106,” ECF No.
223 at 7, but the breakdown it provides as between the plaintiffs—$2,353,257 against Georgia
Power’s recovery and $991,851 against Alabama Power’s recovery, id. at 12-15—equals
$3,345,108. The court trusts that this discrepancy will be corrected when the parties apply this
court’s ruling to defendant’s offset claims.

71