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Nuclear Waste Storage Will Cost Feds $235 Mil.

(CN) - The government owes three now-decommissioned nuclear power plants $235.3 million for costs they incurred storing spent nuclear fuel, a federal judge ruled.

The Nuclear Waste Policy Act of 1982 required the U.S. Department of Energy to accept and dispose of spent nuclear fuel and high-level radioactive waste beginning "not later than January 31, 1998," in return for fees paid by owners of such waste.

It also effectively made it mandatory for nuclear utilities to enter into contracts for such disposal.

When the Department of Energy failed to meet the 1998 deadline, however, utilities began to incur substantial costs for storage and management of the waste accumulating at reactor sites.

By 2006, the U.S. Court of Federal Claims had found that the Department of Energy partially breached its contractual obligations to Yankee Atomic Electric Co., Connecticut Yankee Atomic Power Co., and Maine Yankee Atomic Power Co., all of which are now decommissioned.

The Federal Circuit ordered a separate trial on damages, and the three companies filed separate actions to recover damages they incurred after the initial trial.

Last week, Judge James Merow granted them a total of $235.3 million in damages for the construction and operation of nuclear waste storage facilities, which they were required to operate approximately four years longer than scheduled because of the department's delay.

"It is clear that the government had reason to foresee that its failure to perform under the contract would cause massive difficulties for the utilities due to the nature of the nuclear fuel industry," the 38-page opinion states. "Nuclear fuel storage is inherently a sensitive and expensive endeavor."

Difficulties the utilities encountered in building the storage facilities, and increased costs from contractor problems, were foreseeable, given the government's breach, and therefore recompensable, the judge found.

"Unquestionably, had the government performed its duties under the contract, plaintiffs would not have incurred any of the costs associated with ISFSI construction, including those resulting from the terminations of [contractors] Bechtel and SWEC," Merow wrote.

The plaintiffs cannot, however, recover costs for transferring the fuel waste, and for draining the wet pool storage facilities, according to the ruling.

"In order to recover damages associated with fuel characterization, damaged fuel cans and fuel reconstitution, spent fuel pool clean-up, underwater camera and lighting, and crane upgrades, plaintiffs must demonstrate that the costs would not have been incurred in the non-breach world, and must present a model of what their costs would have been. Unfortunately for plaintiffs, they made no such showing at trial," Merow wrote.

Connecticut Yankee will also take home $685,000 in legal costs stemming from litigation with the town of Haddam, Conn., which resisted granting the utility a permit to construct a nuclear waste facility.

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