bill would have been accepted rather than the undisputed truth of what would have happened and second they awarded damages for so called generic and r c t s the absence of proof that these fees were attributable to daly's braids and in the absence of proof of what those fees would have been  increased storage costs would have been less and more that the point that it yes your honor and what matters is which deal would have gone out first and that the reason for that is that part of entergy claim includes the cost to me cause approximately seven million dollars that consist of the cost to maintain the unit one spent fuel pool until all of the fuel was removed from that pool and brought out to dry storage so for a period of years from hundred ninety eight up until approximately two thousand and six or seven the pool the fuel in the unit one pool remained there and as a result energy incurred costs to operate the pool to run the filters on the water keep the the the cool the fuel in the pool and keep it said now entergy is contention a trial with that none of those costs would have been necessary after nine hundred ninety eight because in the non breach world all of that fuel would have been enough because the cost to put the the fuel in dry storage would have been sent for the most part and i suppose it's conceivable that there would be a small amount of additional damage for additional costs associated with having fuel in dry storage but dry storage is a passive system until basically the fuel is out there it sits in the cold it sits outside there are obviously safeguards and technological issues that need to be addressed to do that but it's far less labor intensive expenditure intensive than having it in a pool where there is water flowing and flowing out and keeping the fuel cool so there's a seventy million dollars or so in expenditure that really having that fuel in the pool beyond one thousand ninety eight now energy's contention at trial and the only contention that made a trial based upon the report by its damages expert was that all of that fuel would have been removed in one nine hundred ninety eight such that it would have had to spend a single dollar to operate the spent the opal after nine hundred ninety eight now the problem with that is that there was no proof in the record to support that result in fact all of the proof about what would have happened in the absence of daily bridge with that the unit to fuel would have been removed first meaning that of a hypothetical but for world scenarios clearly honored no one knows for certain what would have happened but absolute certainty is not required and we can look to objective facts of testimony in the record documentary evidence in a round about what would have happened in this case we happen to be lucky we have a situation where without any rebuttal any cross examination the decision maker the person in charge of the program dr gronow testified con edison as preferences and therefore we can just look to what entergy said it would be the the more reasonable approach but it's not simply a question of what's possible in the abstract the question is what is what should an area what is in fact most likely to event occurred and we see this in the happened it can't base that pays the damages awarded upon that scenario with the delivery commitment schedules that were were submitted first of all not binding and second of all somewhat equivocal right your honor they were not binding i agree with that there's an option to to change but they reflected the preference of con edison as as testified to by dr barone and there is no testimony in the record suggesting that at any point in time con edison would have changed its mind to sort of exercise some kind of option to the way that preference was should the preference be determinative when it is simply an expressed preference in the absence of proof suggesting otherwise absolutely honor that it can't enter she had an opportunity to to put on a witness to extract from dr her own some kind of admission that well it was depending on changing its mind or something like that but the testimony of appeal for the first time energy argue that well maybe the government's right and if it is right then we still have an opportunity to present an alternate scenario about of what might have happened but the problem with that your honor is that they didn't make such an assertion and no point in time during  were as to why it is that it was changing the role it mentioned one the fee structure could create a disincentive for licensees to pursue dry storage to the fairness of assessing multiple annual phase of a license they hold multiple it fifty license for different designs and see not all effectively affected licensees are being assessed the cost of energy of the energy generic decommissioning activities those are the three reasons that the n r c mentioned in the federal register as part of the proposed rule that the federal register is question i think that that falls within the category the point of bird and the other point i want to make clear is that to the extent that there is a perception that the need for regulation increased as a result of the increased amount of dry storage that became necessary due to issue and the reasonable certainty issue that we raise concerning the fact that even though the plaintiff had attempted to isolate so the spent fuel storage costs that were assessed by the n r c it included within it damages claim not only the dry storage component but the wet storage component of that spent fuel storage fees and i specifically specifically asked mr metcalf whether or not he had made any effort to back out the portion of the cost that he acknowledged would have been incurred in the non rich world and he answered and sa stuff go out for us that would have been completed before energy took over correct if con ed had ultimately submitted a final delivery schedule which were approved and that final delivery schedule contemplated unit t we disagree with it but accept that what was it not before the energy and the jeep taking over in two thousand and one yes the reason i am troubled by the question your honor is because the trial court actually heard testimony in this case from not one not two but three witnesses from entergy all of whom were involved in the operations of the plant mr mayor mr anguishing mr hendricks and the latter two were both condit employees and they specifically mayor fifteen sixty four for mr english and seventeen i'm sorry fifteen during the con period of operation yes they were than those questions we had we recognized that we were under an obligation to thirty one in the transcript at thirty seven forty seven starting at line eighteen and this is the answer of mr mayor well the highest priority for us was ultimately draining the pool for the purpose of stopping the cage of four sixty yes i'm sorry and i met testimony by the former common executive that they would have removed the fuel first communion too was wrong and they would have done something different and then let me turn finally and these are just snippets your honor but let me turn again to the transcript the appendix  page seventeen forty six a seventeen forty six page forty three forty two  starting with the question of line a question based on the fact that it was believed that the curtain drain system and unit one was collecting all of the unit one water it's not correct to say that the belief was that the unit two fuel should go first because a leak correct and this is mr hendricks answer well my position is as is the unit one manager was to take care of unit one related issues and knowing that the pool being we had fuel in the pool i believe that was the right say well i think there's a couple of reasons for that number one the d c s is the delivery commitment schedules were not binding on condit they were planning documents only testimony in the record is the submission of the d c s forms and notably in each instance tanit specifically reserve the right to change from unit two to you know one fuel allocations with those things certainly indicated a product they indicated the preference at the time they submitted the d c s is in the starting in the early one nine hundred ninety s when there is and there's no evidence to the contrary your honor with all due respect what we're talking about is the but for world the hypothetical world and i would they're speaking about a hypothetical but for world but it was known as of two thousand certainly was known in the one thousand nine hundred the pool was leaking by late somewhat later than that it was known that this drain catcher system wasn't working so there was a compelling reason for and he did that based on non binding delivery commitment schedules which under the contract are then supposed to be replaced by final delivery schedules we never got that far along because the entire program was suspended i think it's unit one or unit two and in a world in which the department of energy is performing there are plenty of allocations and there's no problem at either side there would have been no need for drive tools storage they couldn't  lines well i believe your honor the court found specifically that there would have been no need for a dry fuel storage facility and what the court found was that because the d c as you know paid for the drawing fuel storage facility i'm sorry you method of our getting the fees and the fees as a result of the breach is not correct well i'm not sure your honor i can agree with that either respectfully i would note first of all that the final rule not  to the final rule dated june tenth one thousand nine hundred nine specifically alludes to quote the fact that video we had not taken possession of the spent fuel that seems to me to come pretty close to saying the reason we're changing this generic cost increases or resolve the problems your honor i think they come pretty close to that both in the final rule language that i just mentioned you also have the contemporaneous comments of an r c commissioner merrifield which are in the appendix at twenty six forty two and most importantly according to the trial court and i'm quoting now from the croc trial court's decision quoting these comments confirm the existence of  harville the people right once again ask them well i would respectfully submit your honor that we took their published records and based on those public records by the government the trial court specifically found a direct link between deities breachin a commission the go up to their course go up during the period of the breach i don't know whether their costs went up your honor but all i know is that for this particular client they did not have dry fuel storage the n r c implemented a fee change in one thousand nine hundred ninety and imposed on us for the first time a generic fee which we had not previously paid we did not have the right fuel storage at that time and that was a new fee that we had not previously paid so we can't tell from the record whether the n r c course generic regulatory activity increased for a name because i think what the trial court observed is is that as a result of increased need for dry fuel storage that the n r c speeds or costs went up and that as a result of those increased costs that's why the n r c where is where is the record show that the six on the bottom right of the page in question was and isn't it true that in fact the owner of indian point requested that unit two spent fuel be accepted before unit one feel answer and that was the way most of the people felt their unit to was an operating plan question and wasn't unit to running out of space answer yes it was and it was running out of space in the late one nine hundred ninety s right answer well it was filling up the unit two if you feel it was filling up the unit to fuel pool unit two was reactor times to add a confer any further treatment of them until the time of the commissioning when entergy happened to discover in two thousand five hundred connection with unit to plant modifications that the leaks were not being contained and if they decided that site characterization work could not wait and needed to be doesn't tell us one way or the other whether that was any increase of all correct thank you i'm sorry ron go ahead i thought i had forty seconds or so since i don't think there were any comments on the crossing feel so i think there's nothing for you to do nothing free to say