wasn't ok very good that it's consolidated there are similar issues in both cases thank you and the issue in the case in both cases indeed is whether the plaintiffs are entitled to recover their actual incurred costs for loading as to whether opinions won by judge custer williams and a fourth i don't remember who had survived which group has proved and which are also one virtually the same record and that none of these four opinions sort of go down the same path i think that's a fair them seem to resolve the the same exact issues the same parties is virtually the same record different way i think that's a fair observation for example we file the notice of supplemental a trial and it's all all you and it's all these it's all these facilities you have this isn't different parties different record it's your various facilities and in fact if i understand this record right because this is an ongoing partial breach by the government and there's a six year statute of limitations argue about ready to file another one of these to recoup your damages for the most recent six year period this is the one that pertains to the past six years and you know that there's also correct your honor we have we are required because of the running of the statue of limitations to bring a new action every twenty forty eight twenty five that's thirty two years out from now i fear that these issues will coming before coming before this honorable court not frequently but certainly from time to time in karat let me just summarize one of the problems i'm having with these two cases and definitely the three different ways that the two judges in the opinions appealed to us dealt with them because they're at odds as well as the other two judges which also don't seem to take a systematic track to this and my bigger question if it's a big picture question if i'm not mistaken you have argued that these are storage loading costs these are not transportation of loading costs correct so at the end there is no question that if the government had performed you would not need to load things for storage correct that is also correct and judge alito found all of that as a matter of fact did he not before he made some findings in all of them so that's what i thought then wait time a time out let me just keep going down my little road here so if these are all storage related costs and isn't it also true that under the current standard contract and current regulation none of the casks none of the casks that you have loaded this spent nuclear fuel into would be allowed to be used for transportation accepted at facilities if there was a sudden facility creat sound that is a matter of fact he did he found as a matter of fact that the casks quit would not be accepted if he not feel if he found that there were uncertainties as to whether or not the storage cast which are located at the view was that any contract an officer that the the government the department of energy was not obligated under the contract as it exists today to pick up the cannister question you've also testified that in the absence of an amendment to the standard these casks for transportation they absolutely wouldn't they would make you take all of the fuel out of the casks you put them in move them into transportation ready castes and then they would accept those so why aren't they on the crawl the storage costs i think they are and that's precisely why i'm here in both cases i think the government should be on the hook for all of the storage costs because this is a cost based on the record which the court just sided with the record seems undisputed and i am i missing something this is the government's witness i don't see anything in this record why we will improve these cost again in the future at such time as we comes to the site and brings a transportation task and then takes that transportation past some storage boxes why did you tell your expert  i would submit your honor we're disinclined to have our experts speculate late about the always performance in the non breach world the information about the always not rich world performance that's within the department of energy's province and control and indeed the rules of evidence limit speculation by experts rule seven zero to be required to have experts testimony be quote based on sufficient factual data here there are no facts or data on which a credible expert can opine  information that the department of energy controls because they are the party under article four of the contract and this is in the appendix that the department of energy is required to bring a transportation cast to our site associated with estimating it i guess i don't even understand why that's relevant in light of his findings i mean and i went back to because you almost looked perplexed at me when i said he made this finding on page eight fourteen of his opinion you can trust me i'll read it accurately as matters now the point i'm wondering is why since since you will absolutely in the future under this fact finding have to take all the junk out of the place this casks is stored in now and moving to something else for transportation then why is this not properly incurred you know and it seems to be there seems to be some confusion in the record the most i can get out of the government's argument is a bit of smoke and mirrors in that well it's possible we will change either the standard contract in the future or the regulations it's also possible that you know that some of these things may change such that maybe under those circumstances the casts will be allowed to be used for transportation but that's not the current state of the law or the facts right correct your honor it is not and so if that does happen and you have gotten if if for some reason the government starts complying in twenty forty eight and if these casts are not so degraded at that point that the government will actually allow you to use them for storage which is quite frankly absurd proposition given what we're dealing with in terms of the contents but if that is the case then couldn't they come after you to recoup because if it turns out that they've changed the law they've changed the regs and if the facts change and this do get used for transportation at that point couldn't they come back to you and offset some future damages provision by virtue of that i'm sure the government could ensure that it's not harmed in the event it does perform as required under the contract and brings a transportation pass but i want to emphasize again  degrade because of the content of the technical evidence about that in the record is that yes they do to your honor i think that is a subject of study both by the department of energy itself as well as  these are actually there's a key point beyond what we just discussed of the godhead to the point i want to reiterate and reemphasize that these are actually incurred costs which we would never have incurred had the department of energy performed in both cases the record is clear that we would never have built a dry fuel storage facility therefore there would have never been any loading of storage tasks and as a matter of step i feel like we have to address because we've got these two and the judge traded opinion even though you made all these arguments and i thought them isn't it should address any of them as far as i can tell she didn't address for example she didn't even discuss in any detail the fact that you we and i would submit your honor that it was essentially the same record involving many of the same witnesses on that score though judge braden has a finding that we submit is clearly erroneous and this is in the appendix in which he does acknowledge by the way at p j twenty seven that deal you fissions that will not accept the s n f in the s and f can't canisters that it's in currently under the standard contract yes she acknowledges that least one finding that is clearly erroneous and the court is right for treatment of this issue i think it's certainly shorter than just lottos but it page eight twenty eight on the right hand column under the paragraph heading eighteen she observes quote prepare and package spent nuclear fuel for dry storage it what deal we is required to bring under article four of the contract and what was in vision and asked for transportation of is a transportation care and so that finding  we submit is clearly erroneous and we also submit that in in both cases the court i think the courts failed to fully consider the effect of this court's decision in carolina power and light which holds that these are deferred costs that these are costs that are going to have to be incurred again in the future and we should be entitled to recover the now and this is a little bit and we discussed this where you just didn't stop talking because i don't understand this argument and this deferred cost idea i mean i've read her opinion and thought it looked like some offset that she was still trying to use the offset logic that was rejected if we're talking about what the cost might be in the future to move this stuff from the storage casks to storage cast that would be rendered acceptable for transportation that is a future cost that may be incurred in the future when that actually comes to pass  and what i started to say about deferred cost this is akin to this court's decision in dominion resources which were the court may recall that it was considering the government's claim about the one time fee and that the plaintiffs in the dominion cases didn't benefit by the deferral of the payment of the one time fee and this court held that the government was not entitled to if you will take that out of that one time fee value and offset it against the plaintiff's claim in that case so to hear what the government's trying to do is essentially take these future costs which may be incurred at such time as deal we begin to perform and take them out of our pockets now and we submit that's and that might be ok if the evidence was the casks that you have loaded your storage into will double as transportation casts and that might be ok because you're responsible for loading for transportation right but you're not responsible for loading for storage and on the  government's obstruction system could recover six million four hundred seventy five thousand four hundred ninety seven dollars of cost incurred care and package right but i think we also point out that all week although we disagree with this finding that we did not cross appeal and therefore the court cannot ok the next reconsideration so we're in agreement correct they please court i'd like to go back to where judge moore started with his how has the trial court consider but i don't even want to hear about all these other cases because i read every one of these opinions wired for i don't know where the fifth magical one is but i read that one i read four and none of them are kids as to each other at all so clearly this is an issue in need of some clarification because you don't want i mean even even if there's a clear error standard of review and even if we technically have to affirm every one of them under that standard which i'm not saying is the case but even if it were it doesn't look good when the same party this company against the government gets four completely different resolutions and that's what they have here so let's try to just focus on these two for a second and let's focus on the questions i was asking opposing counsel because this record shows undisputedly as far as i can tell even which i love i mean i love when government people are very honest in their depositions which as they always are that these casks that this fuel has been stored in are not up to would not meet regulatory or standard contract approval for being transportation past and that's correct isn't it i mean that's what the government witness is all testified this is rescue justify that under the contract if you interpret it that they will not accept cancer fuel he did not testify about the that can't be transported through a hive that's already are it's let's put that aside that so so as of now the regulatory issue aside because that is a dispute over what kind of fuel is in these things and it's not clear to me that i could possibly figure that out from this record but anyway so putting that aside the main issue though that i'm having trouble with is why aren't all these cost storage costs in light of the fact that it is undisputed on this record that these the way they have loaded these things into this these particular kinds of casts those could not be used for transportation cas under the standard contract so if they can't be used as transportation casts i don't know why they fall within that portion of the standard contract where they would have the obligation of paying for the loading because these aren't loading of transportation casts and at least as of now a launch ange but as of now they can't be used as transportation costs of these are only and can only be treated as storage casts you're  dewey performance and it's not enough to just say that never been a time up not what you have to deal with performance the transportation the cost of loading these things into a transportation casks under this record is still to come it will have to be done if and when any point in time the government complies since these casts have been deemed not appropriate by the government for transportation this is a pure storage cost that is incurred this has nothing to do with transportation this is an ongoing cost of storage so yes in the future they may bear the cost of putting these things into transportation casks and i don't know why that would need to be deducted out of storage costs which have nothing to do with transportation the same argument was made by the utility in energy northwest they said we only undertook our plant modifications for dry storage we use a dry storage cast we put our fuel in dry storage we weren't doing transportation under the contract therefore we should recover was doing what they said was the activities we're doing or for storage and therefore we are not responsible for them the court said you need to go a level below that and look at what are the actual activities you're in danger so here the loading activities are things of the nature of picking up spent fuel some blues and moving them into a cask doing things like cleaning the cas closing the cast these are the activities that they bear the burden of demonstrating they would not have performed with the u a e performance they did not meet their burden they didn't even try to meet their burden instead they simply instructed their expert not to quantify their i don't understand i don't understand they're still going to have to do all that stuff when they take this crap out of these casks and put them in transportation casts and if forth evidence that the industry expects including utilities here for doing to actually accept the loaded dual purpose cancers that are sitting on their paths at this point it's obviously just a letter didn't agree i would point out however judge alito did also find that one point nine million dollars of the cost that utilities incurred are similar to costs they would have incurred in the number each will to look to deal with so there is a fact finding here that there is a one point nine million dollars over performance to prepare package and their fuel she went right up to the point of actually quantifying those which would have been out there for a while but all of that testimony it seems to me was in the context where it was quite frankly before testimony probably same thing wrong it was in the context of we still don't have a clear understanding of whether these casts might actually be allowed to be used for transportation and therefore are a substitute and so what you're looking for is for her to articulate with precision how much it would have cost for transportation cast versus how much these cast with the bolted or welded closure rather than both the closure and then and then the idea would be if these casts could actually later in time be used for transportation then maybe now all they should get is the difference between the higher cost of loading these things with the welding and the lower cost of loading it into a bolted transportation cast which is what the government said it would have provided for transportation purposes so that's where that differential becomes relevant becomes relevant if these casts which they paid more money to put these things into and well shut cost more to load than it would have to load the transportation cost the government would have provided if it had performed but i don't see how that's relevant when the state of this record in both cases is that these kassam cannot be used for transportation and so we're not talking about a differential on this record on a quickly unless the law this change of the contract speculative future costs which we don't know what they're going to be it might be as little as taking the cancer oh but it could keep me cover that they can't recover later because the what the standard contract says is they are on the hook for loading fuel into a transportation task so when we get to the point of government performance and they have to open these casks up and take the fuel out of the existing location and put it into a transportation cask they have to actually bear that cost so they can go left or you later for that cost because that's exactly the cost of the standard contract anticipates that will pay sooner contract article for a two way says they are required to prepare a package of fuel sufficient for transportation to deal with it doesn't say it has to go directly into a deal we provided transportation casks and the question is what does that i'll get the utilities to do here it obligates them to prepare a package each fuel assembly for sufficiently for transportation whether these are sufficient for transportation although we respectfully disagree we believe proved that the utilities and deal we will work together to meet these transportation purpose cast transportable and makes perfect sense for them to do so this is a little bit outside this record but as way of explanation mr burroughs testimony was there are a number of utilities that have completely determination their plant they don't have spent fuel pools any more so for them to take their fuel that they've already loaded into these dual purpose canisters and repackage it in a deal we provide it would cost hundreds of millions of dollars deal he has no  interest of course requiring detail of these to do that there's evidence in the record that the utilities here specifically obtained the dual purpose hole to canisters because they are transportable and then expected to be able to transport them in the future so that is our disagreement with judge lefkow with respect to the future but the point is that on a causation but both question little and judge braden recognize that deal we itself has said under the standard contract that these things will not be accepted in these casts and would have to be moved from these things into transportation cast what you're saying is in the future we might be willing to modify the current state of the law to work with them and accept these nonetheless well that's true i don't disagree with your your repeati the contract does contemplate amendments to the contract and that the parties will work together in good faith to come to those amendments but as judge alito found right now the u s position is they are not acceptable the that pretty much does it  doesn't though because the what happens in the future is relevant under care a lot of power to the of what it cost question but is this court an energy northwest said you don't get to the voices are you really going to go to all what more than twenty forty eight or i believe there are current estimates that are that have performance sooner but i want senator speculate exactly when do you know we will perform well there is a six year statute of limitations and these are secure in from so it's realistic to say that six years from now we're going to see another quarter to apply to the government's causation challenge but in energy northwest this court held very clearly that you don't get to the avoid it cost question until you have demonstrated conservation that the breach was the factor that caused the utilities to undergo these activities and incur these costs and you have to go as i said energy of western trucks below one level below you can't just label them for storage what are the actual activities and what are the activities you would have done in the not bridge world eileen's up go the plan is not a bridge expert has a detailed loading scenario for a hypothetical deal we can ask which she could have quantified she could have said too low to each pass we would have incurred x amount and then you know the court would have had the to point out one one of the thing that that counsel for the utilities pointed out was that for misako to quantify the number each loading cost would require speculation but that's exactly what energy northwest says proved to be cause and caused by the breach here we haven't reached the avoided cost question because we are still at the causation stage both judge brady in this city found they did not meet their causation with any of their costs your judge let go to fit an extra step and which both plants have and it's those costs associated with moving the the fuel from the web tool getting it out to the drive storage facility that we're seeking to recover in this case so right now there are there arrives sitting him in water yes at both of these facilities and as the months and years pass we move that fuel because we have two worlds the plants will have to shut down i want to just say a quick word about the v decision on which mr branscum relies first of all that court found as matter of fact that the cost that we're ready to shoot their fuel characterization costs would not necessarily be incurred in the future based on that record that's a very different record than what we have here we are going to have to incur costs in the future associated with moving the fuel that has been placed in the storage tasks and transfer that fuel to a deal we transportation task at such time as deal we performs i also briefly just want to say a few words about this court's decision which i believe judge may or authored roughly a decade ago in indiana michigan and indiana michigan tells us a couple of things of critical importance number one you can't speculate about future costs in the indiana michigan case at that time the issue before the court was was a total breach and whether or not we could recover the entirety of the cost at issue in that case  end michigan said no you can't do that you've got to come back every six years and you've got to prove your actual incurred costs whatever label the government wants to put on it what they're trying to do is take out of our high today the cost associated with removing the fuel that's out of these dry storage facilities and putting them in their transportation task and as judge morris notes as noted that is a cost which is going to be incurred in the future and in the end of michigan says i a plaintive can't get that future