ELR Citation: ELR 20243
No(s). 98-126C (Fed. Cl. Sep 7, 2010)

The Court of Federal Claims ordered the United States to pay three utility companies more than $142 million in a contract dispute arising from the government's failure to accept and dispose of radioactive waste from the utilities. In 1983, as provided by the Nuclear Waste Policy Act (NWPA), the United States, represented by DOE, entered into contracts with the companies under which, in return for payment of fees funded by ratepayers calculated to cover DOE's costs of developing and implementing the waste disposal system required by that contract and the NWPA, DOE was to start removing, transporting, and disposing of spent nuclear fuel no later than January 31, 1998. The contracts have been breached by a series of substantial delays. The utility companies' construction of dry storage, purchase and loading of casks, as well as other mitigating measures, and consequent incurred costs, were a result of and substantially caused by DOE's delays. The companies established that in a plausible non-breach world where DOE timely commenced full performance, these decisions and expenditures would not have been made. The court therefore awarded the companies a total of $142 million, comprising the difference between their established actual expenses of reasonable and foreseeable mitigation substantially caused by DOE's partial breaches, less expenses that would have been incurred in the plausible non-breach world presented.

[A prior decision in this litigation can be found at 38 ELR 20202.]