Entergy Nuclear Indian Point 2, LLC v. United States
128 Fed. Cl. 526
| Fed. Cl. | 2016Background
- Entergy Nuclear Indian Point 2 sued the United States for damages from DOE’s partial breach of the 1983 Standard Contract to begin accepting spent nuclear fuel by Jan. 31, 1998; trial covered mitigation costs from Aug. 31, 2008 to June 30, 2013.
- Entergy sought $35,650,752; the government contested $7,847,288 of that amount. The court awarded a total of $34,469,598.
- Key mitigation steps by Entergy: built and staffed dry storage (Part 72) at Indian Point 2, purchased and loaded canisters, performed fuel characterization and repairs, removed contaminated soil, and paid NRC fees and vendor charges.
- Legal framework: damages for partial breach aim to put plaintiff in the position had the contract been performed; plaintiff must prove foreseeability, causation (but-for), and damages with reasonable certainty; defendant bears burden to show unreasonable mitigation.
- The court applied Federal Circuit precedent (including System Fuels, Vermont Yankee, Energy Northwest, Consolidated Edison) to relax strict hypothetical non-breach modeling where government actions or future regulatory requirements are uncertain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recoverability of security staffing costs ($2,355,777) | Staffing the two bullet-resistant enclosures was required by NRC and caused by DOE’s breach; hours can be reasonably estimated from staffing needs | Records were destroyed; lack of shift-level proof and collateral estoppel from other Entergy cases | Awarded: court found 24/7 staffing proven, costs reasonably calculated despite destroyed rosters; collateral estoppel inapplicable |
| North Anna-type fuel repair costs ($1,599,939) | Repairs were avoidable in a non-breach world because many assemblies could have been shipped to DOE before industry notices and slippage | Repairs would have been required even if DOE performed; inspections would have revealed cracking | Awarded: court found sufficient evidence that many assemblies would have been shipped pre-2002/2007 and repairs were caused by the breach |
| Fuel characterization and debris removal ($625,823) | Necessary to load Holtec storage casks; future re-characterization uncertainty attributable to Government; System Fuels supports recovery | Government argues characterization may suffice for later transport and thus is not a breach-caused cost | Awarded: court followed System Fuels and Consolidated Edison reasoning; characterization costs caused by breach and uncertainty favors plaintiff |
| Repairs to fuel handling machine and overhead crane ($134,529) | Repairs were incurred during mitigation and thus recoverable | Repairs were routine plant maintenance/wear-and-tear and would have been incurred in non-breach world | Denied: court held plaintiff failed to prove these repairs wouldn’t have been required absent the breach |
| NRC Part 171 (generic) fees ($879,112) | Increased Part 171 assessments (post-1999 rule change) were caused by DOE’s breach | Rule change rationale did not reference DOE; precedent (Consolidated Edison II) holds fee change not caused by breach | Denied: bound by Consolidated Edison II and related decisions; Part 171 fees not recoverable |
| Holtec expediting fees & interest ($167,513) | Fees incurred due to expedited cask order caused by DOE’s breach | Fees resulted from Entergy’s failure to order within contract lead time; unreasonable mitigation | Denied: court found Entergy unreasonably delayed ordering and should bear the cost |
Key Cases Cited
- Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir.) (sets foreseeability, causation, reasonable-certainty framework for NWPA breach damages)
- System Fuels, Inc. v. United States, 818 F.3d 1307 (Fed. Cir.) (allows recovery where government leaves future performance/regulation uncertain; relaxes strict non-breach modeling)
- Vermont Yankee Nuclear Power Corp. v. United States, 683 F.3d 1330 (Fed. Cir.) (requires comparison to a hypothetical non-breach world unless uncertainty prevents meaningful modeling)
- Energy Northwest v. United States, 641 F.3d 1300 (Fed. Cir.) (discusses plaintiff’s burden to model non-breach world; addresses effect of government hindrance)
- Consolidated Edison Co. of N.Y. v. United States, 676 F.3d 1331 (Fed. Cir.) (addresses NRC fee rule change and recoverability of Part 171 fees)
- Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir.) (interprets ACR/MPA acceptance process under the Standard Contract)
- Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir.) (but-for causation and damages principles in spent fuel cases)
- San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557 (Fed. Cir.) (standards for certainty of damages)
- Boston Edison Co. v. United States, 658 F.3d 1361 (Fed. Cir.) (addressed wet storage costs but did not decide Part 171 causation issue)