IN THE UNITED STATES COURT OF FEDERAL CLAIMS

______________________________________ ) NORTHSTAR VERMONT YANKEE, LLC, ) ) Plaintiff, ) No. 18

- 1209C ) v. ) Filed: April 6 , 2022 ) Reissued: April 21, 2022 1 THE UNITED STATES, ) ) Defendant. )

______________________________________ )
OPINION AND ORDER This is the third round of litigation related to the Department of Energy’s (“DOE”) continuing breach of its contractual obligation to accept spent nuclear fuel (“SNF”) from the Vermont Yankee Nuclear Power Station (“VYNPS”) and store it permanently in a g overnment

operated repository. Plaintiff NorthStar Vermont Yankee, LLC ultimately was awarded $40,739,217 in damages (plus $46,545.47 in statutory costs) in the first round of litigation, which covered the period prior to April 30, 2008. 2 See Entergy Nu clear Vt. Yankee, LLC v. United States , No. 03

- 2663C (Fed. Cl. filed Nov. 12, 2003). In the second round of litigation, the parties stipulated to an award of $19,144,174 in damages for the period of May 1, 2008, through December 31, 2013. See Entergy Nuclear Vt. Yankee, LLC v. United States , No. 14

- 343C (Fed. Cl. filed

1 The Court issued this opinion under seal and directed the parties to confer and propose any redactions by April 18, 2022

. Because the parties did not propose any redactions, the Court reissues this opinion in full.

2 In the prior litigation , Plaintiff was identified as Entergy Nuclear Vermont Yankee, LLC. Pursuant to a transaction that closed on January 11, 2019, the ownership and name of Plaintiff, as well as the holder of the Standard Contract, changed to NorthStar Vermont Yankee, LLC. D ef.’s App. 43, ECF No. 46

- 1.2 April 24, 2014). Plaintiff seeks $191,471,150 in this action for costs incurred for the period of January 1, 2014, through December 31, 2018. Before the Court is Plaintiff’s Motion for Partial Summary Judgment and Entry of Partial Final Judgment, as well as Defendant’s Motion for Partial Summary Judgment. The parties’ motions raise a variety of issues , some of which are overlapping , including ( i ) Plaintiff’s entitlement to j udgment and entry of partial final judgment on the undisputed portion of its damages claim , ( ii ) whether Plaintiff should be judicially estopped from asserting certain acceptance allocation f igures that differ from the figures asserted in round one , ( iii ) questions of contract interpretation regarding disposal of short

- cooled fuel and regarding the requirements for

e xchanges , and ( iv ) whether Plaintiff can recover payments it made to the town of Vernon, Vermont, and pre

- 2017 site security costs

. For the reasons that follow , the Court GRANTS IN
PART and DENIES IN PART both motions.
BACKGROUND
I. Factual Background
T hrough the enactment of the Nuclear Waste Policy Act of 1982, Pub. L. 97

- 425, 96 Stat.
2201 (1982) (codified at 42 U.S.C. §§ 10101

– 10270), Congress created a SNF disposal program that required DOE and domestic nuclear utilities to enter into a Contract for Dis posal of Spent Nuclear Fuel and/or High

- Level Radioactive Waste ( “Standard Contract”)

. Energy Nuclear Vt. Yankee, LLC v. United States (“ ENVY ”) , 95 Fed. Cl. 160, 169 (2010). This contract provide s for
DOE’s acceptance and disposal of the utilities’ SNF , beginning no later than January 31, 1998, in3 exchange for the utilities ’ payment of fees into the Nuclear Waste Fund established to support the disposal activities

. Id. ; s ee Def .’s App

. (“DA”) 107, ECF No. 46

- 1

. 3
T h e Standard Contract does not establish a specific schedule or rate by which DOE is obligated to accept and dispose of SNF. Instead , f or planning purposes, DOE was required by the
contract to release an annu al capacity report setting forth the projected annual receiving capa city for the first 10 years of operation at the planned DOE repository and an annual acceptance priority ranking (“APR”) establishing the order in which it would collect SNF from the facilities beginning with the oldest discharged fuel

. ENVY , 95 Fed. Cl. at 170 ; see DA 111

. DOE and the utilities would then use the delivery schedule procedures provided in the Standard Contract to agree to a schedule for each facility’s delivery of SNF to DOE . DA 111

– 12. Under those procedures , the utilities must furnish to DOE a delivery commitment schedule (“DCS”) , which identifies all SNF a utility wants to deliver to DOE beginning 63 months thereafter. DA 112. T he Standard Contract allows DOE the discretion to approve or disapprove the su bmitted DCSs as well as revised schedules (if they are initially denied) within three months of receipt. Id. A similar process is used to agree upon a final delivery schedule, which must be submitted to DOE at least 12 months prior to the delivery date. DA 112

– 13. I n the event that DCSs for SNF ( and/or high

- level waste (“HLW”) ) require the disposal of material beyond the annua l capacity of DOE ’s disposal repository, DOE will follow an acceptance priority based on the age of the discharged fuel. DA
115

– 16. This scheme became known as “oldest fuel first” (“OFF”). 4 ENVY , 95 Fed. Cl. at 170.

3 For ease of reference, this opinion refers to the bates

- numbered pages of Defendant’s Appendix, rather than the ECF page number. 4 A utility is not required by the contract to actually deliver its SNF to the DOE in an oldest

fuel

- first order. The OFF priority ranking merely assigns a utility a place in the queue. It can then use its allocation to deliver any fuel that meets the criteria of the Standard Contract. See DA 115

– 16 ; see also Yankee Atomic Power Co. v. United States , 94 Fed. Cl. 677, 695

– 96 (2010), aff’d in part, rev’d in part , 679 F.3d 1354 (Fed. Cir. 2012)

.4 The Standard Contract also allows utilities to exchange approved DCSs. DA 113. According to the contract terms, DOE retain s the rig ht to approve or disapprove , in its sole discretion, an exchange request

. Id. A utility wanting to exchange an approved DCS must submit such request to DOE, identify ing the priority rankings of the utilities intending to engage in the exchange. DA 114. DOE then has 30 days to approve or disapprove of the proposed exchange, advising the requesting utility of the reasons for disapproval in the event DOE exercise s its dis cretion to deny the request

. Id. As the parties well know, DOE did not begin accepting SNF in January 1998 . T he United States Court of Appeals for the Federal Circuit later determin ed that DOE’s delay in accepting and disposing of SNF constituted a breach of the Standard Contract. See Ind

. Mich

. Power Co. v. United States , 422 F.3d 1369 , 13 7 4 (Fed. Cir. 2005). The Court held that the delay qualified only as a partial breach based on the agency’ s stated intent to perform under the terms of the Standard Contract in the future. Id. at 1376

– 77. Pursuant to that decision , utilities that are damaged by
DOE’s delayed performance are required to submit damages claims every six years and may not seek future damages. Id. at 1376

– 78. Unsurprisingly, litigation has ensued over what damages are properly recoverable in SNF

cases
. For purposes of calculating damages under the OFF rubric of the Standard Contract , t he Federal Circuit established a minimum acceptance rate based on a report DOE submitted to Congress in 1987, dictating the minimum amount of SNF that otherwise would have been accepted by DOE but for the agency’s delay. Pac. Gas & Elec. Co. v. United States , 536 F.3d 1282, 1292 (Fed. Cir. 2008) ( finding the 1987 report “provides the best available pre

- breach snapshot of both parties’ intentions for an acceptance rate”). The Court subsequently approved a nother damages model based on utilities ’ hypothetical participation in the exchange of acceptance allocations

—5 i .e. , “the exchanges market

. ” See, e.g. , Dairyland Power Coop. v. United States , 645 F.3d 1363, 1369 (Fed. Cir. 2011). Under this theory, utilities have argue d that in the “but

- for world” where DOE began accepting SNF in 1998, as obligated by the contract, a n exchanges market would have existed where utilities with late r approved DCSs would bargain with utilities holding earlier DCSs
to remove SNF from their facilities in a more expedited fashion than would be permitted under the OFF scheme. Id. On June 10, 1983, Vermont Yankee Nuclear Power Corp. , Plaintiff’s predecessor, entered into the Standard Contract with DOE under which DOE agreed to accept and deliver SNF from
VYNPS

. See DA 102 ; ENVY , 95 Fed. Cl. at 167

. VYNPS is a single unit boiling water reactor site located in Vernon, Vermont. DA 44. Since DOE ’s breach of the Standard Contract , Plaintiff has relied on both wet pool and dry rack storage (referred to as the Independent Spent Fuel Storage Installation “ISFSI” ) at VYNPS to store SNF that otherwise should have been accepted and disposed of by DOE but for the breach

. DA 44

– 46 ; see ENVY , 95 Fed. Cl. at 174

– 75

. In August 2013, Plaintiff publicly announced the closure of VYNPS and permanently ceas ed power operations in December 2014. DA 44. As a result, Plaintiff began offloading SNF assemblies from the reactor core into the spent fuel pool beginning in January 2015. Id. By August 1, 2018, Plaintiff removed the last of the SNF at the facility fro m the spent fuel pool and loaded the SNF into storage cannisters which were placed on the ISFSI. DA 45.
II. Procedural Background On September 10, 2021, both parties filed motions for partial summary judgment. See Pl.’s Mot. for Partial Summ. J. and Entry of Partial Final J., ECF No. 45 ; Def.’s Mot. for Partial Summ. J., ECF No. 46. Plaintiff requests partial summary judgment with respect to : (1) DOE’s obligation to accept “short cooled fuel”

— i.e. , fuel cooled for less than five years

— as specified by the terms6 of the Standard Contract , and (2) the undisputed portion of Plaintiff’s claimed damages. See generally ECF No. 45; Pl.’s Reply, ECF No. 49. Plaintiff also requests that the Court enter final partial judgment in the amount of the undisputed damages pursuant to Rule 54(b) of the Rules of the United States Court of Federal Claims (“RCFC”)

. See ECF No. 45 at 13

– 18. Conversely, Defendant seeks partial summary judgment with respect to : (1) whether the Court should apply the judicial es toppel doctrine to preclude Plaintiff from asserting different acceptance allocation figures for the period of 1998

– 2008 under its current exchanges

- based model than were asserted in round one using the OFF scheme , (2) the Standard Contract’s requirements that fuel be cooled a minimum of five years before it can be delivered and that only approved
DCSs are eligible for exchange, and ( 3 ) whether Plaintiff can recover payments made by Plaintiff
to the town of Vernon and pre

- 2017 site security costs it allocated to mitigation efforts

. See generally ECF No. 46; Def.’s Reply, ECF No. 50.
DISCUSSION
I. Standard of Review Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). A fact is material when it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is genuine, thus necessitating a trial, when a finder of fact may resolve factual issues in favor of either party. Id. at 250. “When deciding a summary judgment motion, all of the nonmovant ’ s evidence is to be credited, and all justifiable inferences are drawn in the nonmovant ’ s fav or.” Ruiz v. A.B. Chance
Co. , 234 F.3d 654, 671 (Fed. Cir. 2000) (citing Anderson , 477 U.S. at 255); see Dairyland Power Coop. v. United States , 16 F.3d 1197, 1202 (Fed. Cir. 1994). W here “the evidence is such that a7 reasonable jury could return a verdic t for the nonmoving party,” summary judgment is not appropriate. Anderson , 477 U.S. at 248. “With respect to cross

- motions for summary judgment, each motion is evaluated on its own merits and reasonable inferences are resolved against the party whose mot ion is being considered.” Marriott Int’l Resorts, L.P. v. United States , 586 F.3d 962,
968

– 69 (Fed. Cir. 2009) (citing Mingus Constructors, Inc. v. United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987)). The moving party bears the burden of proving the absence of a genuine dispute of material fact but “may discharge its burden by showing the court that there is an absence of evidence to support the nonmoving party ’ s case.” Dairyland Power , 16 F.3d at 1202 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).
II. Plaintiff Is Entitled to Partial Summary Judgment for the Un disputed Portion of Its Damages Claim b ut Not Entry of Partial Final Judgment . Plaintiff seeks both summary judgment and entry of partial final judgment as to the undisputed portion of its damages claim , which amounts to $135,892,413

. See ECF No. 45 at 12

– 13; ECF No. 49 at 5. In its opposition brief, Defendant acknowledges that it does not contest Plaintiff ’s entitlement to this portion of its total claimed damages resulting from DOE’s breach of the Standard Contract. 5 Def.’s Resp. to Pl.’s Mot. at 6 n.1, ECF No. 48 ; see Ind

. Mich

. Power , 422 F.3d at 1373 (citing Energy Capital Corp. v. United States , 302 F.3d 1314, 1320 (Fed. Cir. 2002) (plaintiff may recover damages in a breach of contract act ion that are reasonably foreseeable at the time of contracting, caused by the breach, and shown with reasonable certainty)

. Based on

5 Plaintiff initially identified $135,034,217 as the undisputed costs, citing a report prepared by Defendant’s expert , Robert Peterson . ECF No. 45 at 12 ; see Report of Robert A. Peterson at 37, ECF No. 45

- 4 . Defendant, however, provided the revised uncontested damages figure in its opposition brief , representing that the revised amount will be reflect ed in an updated report to be produced to Plaintiff as soon as practicable

. Def.’s Resp. to Pl.’s Mot. at 6 n.1, ECF No. 48.8 expert testimony it intends to offer, Defendant expects to contest at trial only $55,578,737 of Plaintiff’s total request for damages. ECF No. 48 at 6 n.1. Other judges of this court have routinely entered partial summary judgment in SNF cases involving similar circumstances

. See, e.g. , Ga

. Power Co. v. United States , 143 Fed. Cl. 750, 755 (2019) ( holding summary judgment was appropriate with respect to approximately $143 million of undisputed damages) ; Conn

. Yankee Atomic Power Co

. v. United States , 142 Fed. Cl. 87, 9 0 (2019) ( granting partial summary judgment with respect to approximately $103 million of undisputed damages)

. Indeed, Defendant does not meaningful ly dispute that partial summary judgment on th is issue is appropriate

. See generally ECF No. 48. Accordingly, c onstruing all evidence and reasonable factual inferences in the light most favorable to D efendant, as the nonmovant, t he Court finds that Plaintiff has demonstrated the absence of a genuine dispute as to material fact and is therefore entitled to summary judgment with respect to $135,892,413 in claimed damages

. Although the Court agrees with Plaintiff as to the appropriateness of partial summary judgment, it does not share the same opinion with respect to ent ry of partial final judgment in the
amount of these uncontested damages

. See ECF No. 45 at 14

– 18 ; ECF No. 49 at 11

. As Defendant correctly argues, a Rule 54(b) judgment is not appropriate because judgment as to one aspect of damages does not finally resolve Plaintiff’s single breach of contract claim. See ECF No. 48 at 6.
RCFC 54 provides that when “an action presents more than one claim for relief[,] . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . if the court expressly determines that there is no just reason for delay.” RCFC 54(b). W hether partial judgment under RCFC 54(b) is appropriate requires a two

- part analysis. First , “ the judgment must be final with respect to one or more claims .” Houston Indus. Inc. v. United States , 78 F.3d 564,9 567 (Fed. Cir. 1996) (citing Liberty Mut. Ins. Co. v. Wetzel , 424 U.S. 737, 742

– 43 (1976)). “ T he resolution of individual issues within a claim does not satisfy the requirements of Rule 54(b).” Id. ; see W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Rsch. Assocs., Inc. , 975 F.2d 858, 861

– 62 (Fed. Cir. 1992) ( holding that a “judgment is not final for Rule 54(b) purposes unless it is ‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.’” (emphasis in original) (quoting Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 436 (1956)))

. Second, considering “the judicial administrative interests as well as the equities involved,” the
Court must determine that there is “no just reason for delay.” Curtiss

- Wright Corp. v. Gen

. Elec

. Co. , 446 U.S. 1, 7 (1980). Despite advancing a single breach of contract claim, see Pl.’s Compl. at 11 (“Claims for Relief”) , ECF No. 1, Plaintiff contends that entry of partial final judgment as to the uncontested portion of damages is warranted. According to Plaintiff, viewing the “whole lawsuit” as a “single,

non - segregable” claim is “overly formulaic and restrictive, and ‘ makes little sense’ in the context of

. . . spent nuclear fuel damages cases.” ECF No. 45 at 15; see ECF No. 49 at 7 (“There is no reason that the alleged ‘lone claim’ could not also be divided for resolution into separate components based upon finality a nd the absence of any dispute regarding quantum or entitlement.”). Plaintiff asserts that its argument is analogous to the facts of Stockton East Water Dist rict

v . United States , 120 Fed. Cl. 80, 82

– 83 (2015) , and Bell BCI Corp

. v. United States , 91 Fed. Cl. 664, 666 (2010). See ECF No. 45 at 15. In those cases, the trial courts entered partial judgment as to portions of the plaintiffs’ damages awards affirmed by the Federal Circuit even though other portions of the awards woul d be reexamin ed during the remand proceedings

. See Stockton , 120 Fed. Cl. at 83; Bell BCI , 91 Fed. Cl. at 667

. As Defendant emphasizes, each court’s finding that10 Rule 54(b) relief was warranted relied specifically on the posture of the case s , citing binding precedent approving the entry of partial judgment in similar remand postures. See Stockton , 120 Fed. Cl. at 83 ( holding that a trial court may on remand enter partial final judgment “ as to a sum certain in damages for which a defendant is liable as a result of the court of appeals [’] mandate, even if the remand order requires the trial court to adjudicate other requests fo r damages by plaintiff arising out of the same legal claim.” ( citing King Instrument Corp. v. Otari Corp. , 814 F.2d 1560 (Fed. Cir. 1987) ) ; Bell BCI , 91 Fed. Cl. at 668 (citing King Instrument , 814 F.2d at 1563)

. As that precedent explains, “Rule 54(b), which concerns the power of the trial court before appeal, is not applicable” in the remand posture presented in Stockton and Bell BCI

. King
Instrument , 814 F.2d at 1563 (emphasis in original )

. The procedural posture of the instant case is quite different. Here, there has been no affirmance of any aspect of Plaintiff’s damages claim and no mandate from the Federal Circuit by which the Court may exercise authority to enter partial final judgment as to a sum certain in damages . Nor is th e Court’s o rder granting summary judgment on the uncontested portion of damages necessarily a functional equivalent. Compare Bell BCI , 91 Fed. Cl. at 668

– 69 ( finding partial judgment was warranted because “[t] he [Federal Circuit’s] decision on the affirmed claims is final, the Government’s liability is established, these claims will have no possible effect on the remand proceedings, and the claims will never again be reviewed on appeal.”) , with Entergy
Nuc lear Genera t ion Co. v. United States , 138 Fed. Cl. 317, 323 ( 2018 ) (rejecting request to enter partial judgment on uncontested damages in a SNF case even where the Government represented tha t it would not appeal that amount )

. Moreover, Defendant represents that it intends to seek an offset to Plaintiff’s disputed damages in the amount of at least $1.5 million, and perhaps more depending on the resolution of other issues in the parties’ motion s
. See ECF No. 48 at 11

– 12.11 Although a relatively nominal amount compared to the $55.5 million in dispute, that offset may factor into the ultimate account ing of damages further distinguishes the level of finality (or lack thereof) between this case , on the one hand, and Stockton and Bell BCI , on the other. As Plaintiff acknowledges, with respect to SNF cases in a similar posture , decisions addressing the appropriateness of partial final judgment are split. I n Connecticut Yankee and Entergy Nuclear Palisades, LLC v. United States , the courts issued partial judgments pursuant to RCFC 54(b) for the uncontested portion s of damages, despite the existence of disputes with respect
to the remainder of the requested damages and the fact that each plaintiff alleged only a single breach of contract claim

. See Conn. Yankee , 142 Fed. Cl. at 90; Entergy Nuclear Palisades v. United St ates , 122 Fed. Cl. 225, 230 (2015)

. In two other cases, the courts denied request s for the entry of partial judgment in the exact same scenario

. See Ga

. Power , 143 Fed. Cl. at 757; Entergy Nuclear Generation , 138 Fed. Cl. at 325. Plaintiff “submits that the results in Connecticut Yankee and Entergy Nuclear Palisades represent the better rule for these spent nuclear fuel damages

cases
. ” ECF No. 45 at 16 . T he Court disagrees. The Court finds the analyses in Georgia Power and Entergy Nuclear Generation more persuasive. As in Georgia Power , the Court is cognizant of the “equities involved in this case , ” including Defendant’s long

- established liability for DOE’s partial breach, the undisputed nature of the dama ges at issue, and the inability of Plaintiff to recover interest while waiting for the entry of final judgment. 143 Fed. Cl. at 756. However, “to grant partial final judgment to [Plaintiff] on part but not all of the harms arising out of only its breach of contract claim would be to enter judgment on less than one claim, violating Rule 54(b).” Entergy Nuclear Generation , 138 Fed. Cl. at 322. Unless and u ntil the Federal Circuit clearly indicates that the language of RCFC 54(b) permits the partial judgment sought by Plaintiff here ( and in other SNF cases ) , the Court will12 “hew [] closer to the Federal Circuit ’ s articulated view in Houston Industries , 78 F.3d at 567, and consider [] the [undisputed] costs an individual issue within plaintiff [’ s ] claim f or breach of
contract.” 6 Ga

. Power , 143 Fed. Cl. at 757. Accordingly, the Court denies Plaintiff’s request for entry of partial final judgment.
III. The Doctrine of Judicial Estoppe l Does Not Preclude Plaintiff’s Assertion of Certain A cceptance Allocation Figures Under Its Exchanges
- Based Model. Defendant argues that Plaintiff should be judicially estopped in this round of litigation from taking factual positions with respect to acceptance allocations for the years 1998 through 2008 that are inconsistent with factual positions previously taken by Plaintiff in the first round of litigation.
ECF No. 46 at 15 . Specifically , Plaintiff established d amages in round one by demonstrating its use of acceptance allocations in the but

- for world on an annual basis from 1998 through 2008 using the OFF scheme. See id. at 18

– 19

. In this litigation , Plaintiff asserts an exchanges

- based theory of recovery , relying on a model prepared by its expert, Frank Graves, to predict how Plaintiff would have exchanged acceptance allocations with other utilities to dispose of SNF at VYNPS more quickly. See id. at 17

– 18. Defendant emphasizes that this new model assumes different acceptance allocations for the years 1 998 through 2008

. 7

6 Because Plaintiff has failed to demonstrate the first prong of the RCFC 54(b) analysis, there is no need for the Court to determine the second p rong

— i.e. , whether there is no just reason for delay.

7 Defendant provided a helpful table, reproduced below, to document the differences in the amounts of SNF accepted during the relevant period , measured in Metric Tons of Uranium ( “ MTUs ” ), according to each model

.

Year First Round: MTUs Accepted by DOE Current Round: MTUs Accepted by DOE 1 998 72.9 0 1999 0 0 2000 20.6 0 2001 27.5 9.5 2002 25.7 23.6 2003 39.2 013 Plaintiff argues , among other things, that judicial estoppel does not apply to this case because there is no “clear inconsistency” between the positions taken by Plaintiff with respect to the acceptance allocations in this and previous rounds of litigation, and any alleged inconsistencies nei ther provide Plaintiff an unfair advantage nor cause Defendant to suffer unfair prejudice in this

case. Pl.’s Opp’n to Def .’s Mot. at 16

– 17, ECF No. 47. On these points , Plaintiff has the stronger argument. “Judicial estoppel is an equitable doctrine t hat prevents a litigant from taking a litigation position inconsistent with one successfully asserted in an earlier court proceeding.” Egenera, Inc. v. Cisco Sys., Inc. , 972 F.3d 1367, 1378 (Fed. Cir. 2020). W hether to apply judicial estoppel to preclude a party’s claim is a matter within the court’s discretion. Agility Pub. Warehousing Co. K.S.C.P. v. United States , 969 F.3d 1355, 1368 (Fed. Cir. 2020) (quoting Data Gen. Corp. v. Johnson , 78 F.3d 1556, 1565 (Fed. Cir. 1996) )

. Although not intending to “establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel,” the Supreme Court articulated three factors for courts to consider in evaluating the merits of a judicial

es toppel argument. New Hampshire v. Maine , 532 U.S. 742, 750

– 51 (2001). First, there must be clear inconsistency in the party’s later position when compared to its previous position. Id. at 750

. “To be ‘clearly inconsistent,’ positions must be ‘mutually exclusive’ and ‘directly inconsistent.’” Egenera , 972 F.3d at 1379 (quoting RFF Family P ’ ship v. Ross , 814 F.3d 520, 528 (1 st Cir. 2016)). Second, the party must have prevailed in persuading a court to adopt or accept its earlier,

2004 19.4 23.5 2005 41.4 66.2 2006 24.9 0 2007 25.1 0 2008 23.6 93.8 ECF No. 46 at 15.14 inconsistent position. New Hampshire , 532 U.S. at 750 ; see Water Techs. Corp. v. Calco, Ltd. , 850 F.2d 660, 665 (Fed. Cir. 1988) ( explaining that the invocation of judicial estoppel “depends upon [a party] having rec eived a benefit from the previously taken position in the form of judicial success”). Third, the party must “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” New Hampshire , 532 U.S. at 751. The crux of the parties ’ dispute here centers on the first and third New Hampshire factors. On the first factor, Defendant focuses squarely on the annual acceptance figures determined in the first round of litigation through application of the OFF scheme

. T his focus misses the forest for the trees because a mere difference in factual positions is not necessarily dispositive. See Egenera , 972 F.3d at 1379 (finding patent owner’s position that an individual was erroneously listed as an inventor on the patent not “clearly inconsistent” with later position that individual should be relisted as an inventor). As both parties acknowledge , in SNF cases, the Government does not pay nuclear utilities for allocations. See ECF No. 47 at 17 ; ECF No. 50 at 11 n.7

. Rather, the Government is liable for th e real

- world costs incurred by utilities during a claim period that

were caused by DOE’s breach , and c ausation is determined by looking to the “but

- for world ” in which DOE had accepted SNF through full performance of the Standard Contract. See Pac. Gas & Elec. , 536 F.3d at 1292. In each round of litigation, Plaintiff has consistently claimed that it s
costs are fully recoverable as a result of the breach

— only the manner in which it has sought to substantiate its damages claim are different. And i f the costs incurred were fully recoverable regardless of whether the but

- for world was defined using OFF or an exchanges

- based model , then neither the theories of recover y nor the ir factual underpinnings are “ mutually exclusive ” or

“ directly inconsistent

. ” Egenera , 972 F.3d at 1379 ; see ECF No. 47 at 16 ( “ [T] he government being liable under one (conservative, not disputed) approach to causation, when it would also be15 liable for the exact same amount (if not more) under a second approach to causation, does not reflect the sort of inconsistency or ‘mutually excl usive’ positions contemplated by the cases that have enforced judicial estoppel.” ) ; Report of Frank C

. Graves at 9 n.4, ECF No. 47

- 1. Defendant concedes that Plaintiff is not judicially estopped from changing its theory of
recovery in this case

. See ECF No. 50 at 6. Rather, it argues t hat Plaintiff ’s current model must incorporate the factual positions taken in the prior , different model used in the first round. Id. The Court finds this argument difficult to reconcile, as a model for determining da mages is not so easily deconstructed into theory versus fact. Plaintiff’s current exchanges

- based model is based entirely on the assumption of different facts

— i.e. , t hat in the but

- for world an ex c hanges market would have existed and VYNPS would have participated in it rather than following OFF

. See Dairyland
Power , 645 F.3d at 1369

– 71

. Other than pointing out that the acceptance allocation figures under the two models are not the same for the years 1998 through 2008 , Defendant does meaningfully explain why the Court can accept Plaintiff’s new exchanges

- based model but only by artificially limiting some data to the OFF rubric. See ECF No. 50 at 6

– 7. Defendant has cited no decisions in SNF cases raising similar concerns about factual inconsistency, even though the Federal Circuit
in Sacramento Municipal Utility District v. United States (“ SMUD ”) approved the use of the exchanges

- based theory in a later round of that litigation where the nuclear utility successfully recovered da mages under OFF in round one

. 566 F. App’x 985, 99 5 ( Fed. Cir. 2014). Defendant correctly notes that the issue addressed in SMUD was one of collateral estoppel, not judicial estoppel

. ECF No. 50 at 7 . It, however, does not contend that the factual differences resulting from the change of theories in SMUD were not also present in that case. Even if there were clear inconsistency (as that term is underst ood in judicial estoppel cases) , under the third New Hampshire factor the Court finds Defendant has not clearly articulated16 the risk of Plaintiff gaining an unfair advantage or Defendant suffering from unfair prejudice if Plaintiff is not estopped from relying on different acceptance allocation figures for 1998

– 2008

. New Hampshire , 532 U.S. at 751. The only argument the Court can discern from Defendant ’s motion on the issue of un fair advantage is that Plaintiff “is using . . . allocations a second time to buttress its exchanges

- based result.” ECF No. 50 at 11 n.7. As Plaintiff’s expert explains , however, utilizing an exchanges

- based model in comparison to OFF would not result in higher aggregate damages claims by Plaintiff , “ though it could lead to lower damages claims.” ECF No.
47

- 1 at 9 n.4. The Court is not persuaded by Defendant’s amorphous description of unfair advantage. Moreover, the Court does not find that Plaintiff’s current assertion of a n ex c hanges

- based theory of recover y (with different acceptance allocations ) is an effort to manipulate or mislead the
Court. Judicial estoppel “is not meant to be a technical defense for litigants seeking to derail potentially meritorious claims, especially when the alleged inconsistency is insignificant at best and there is no evidence of intent to manipulate or mislead the courts.” Ryan Operations G.P. v.
Santiam

- Midwest Lumber Co. , 81 F.3d 355, 365 (3d Cir. 1996) (“Judicial estoppel is not a sword to be wielded by adversaries unless such tactics are ne cessary to ‘secure substantial equity.’” (quoting Gleason v. United States , 458 F.2d 171, 175 (3d Cir. 1972))) ; s ee Kannuu PTY Ltd. v
. Samsung Elecs. Co. , 15 F. 4th 1101, 1109 (Fed. Cir. 2021) (citing United States v. Apple, Inc. , 791 F.3d 290, 337 (2d Cir. 2015) (“ [R]elief is granted only when the . . . impact on judicial integrity is certain .” (alterations in original ) (citation omitted)) )

. In the 15

- year period b etween the filing of the complaints in round one and in this case, the legal framework for awarding damages in SNF

cases has evolved

. See, e.g. , Dairyland Power , 645 F.3d at 1369

– 71 ; SMUD , 566 F. App’x at 995

. Additionally, as Plaintiff explained at oral argument, there was no need in prior rounds of litigation17 to demonstrate entitlement to damages through an exchanges

- based model because OFF

— the clear

- cut, Circuit

- approved theory

— provided full recovery. See Hr’g Tr. at 61:3

– 8, ECF No. 55. Plaintiff’s strategic decision to proceed under OFF, rather than through exchanges, was explicitly spelled out in a joint stipulation filed in round two. DA 252

– 53 (agreeing that the Standard
Contract’s e xchange s provision was not relevant because Plaintiff demonstrated damage s under OFF and reserving all rights and objections regarding exchange s - based damages theories for purposes of future litigation). These circumstances reasonably explain why Plaintiff has now pivoted to a different damages model that assumes different acceptance allocations

. See New Hampshire , 121 S. Ct. at 1814 (citing 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4477, p. 782 (1981)); Egenera , 972 F.3d at 1379 ( hold ing that intervening judicial rulings “further justif[ied] any seeming inconsistency” in a party’s positions) ).
T he Court therefore exercise s its discretion to deny Defendant’s s ummary j udgment request with respect to the issue of judicial estoppel. 8
IV. The Plain Language of the Standard Contract Requires DOE to Accept Short
- Cooled Fuel on the Same Delivery Schedule as Standard Fuel , Unless Technical Feasibility Concerns Require Schedule Adjustment. The parties both seek summary judgment on thei r competing interpretations of the Standard Contract with respect to DOE’s obligation to accept short

- cooled fuel . Plaintiff contends that the
contr act terms unequivocally require DOE to accept and dispose of short

- cooled fuel. See ECF
No. 45 at 11

– 12. Conversely, Defendant argues that the contract requires fuel to be cooled for at

8 On March 28, 2022, Plaintiff moved for leave to file a notice of subsequent authority on the issue of judicial estoppel, attaching a recent decision in Duke Energy Progress, LLC v. United States , No. 18

- 891C (Fed. Cl. Mar. 28, 2022), in which Judge Meyers also rejected a similar argument by the Government. See Pl.’s Mot. for Leave to File Notice of Subsequent Auth., ECF No. 56. Because the Court independently reached the same conclusion without the need to consider Duke Energy , and seeing no reason to de lay this opinion, Plaintiff’s motion will be denied as moot.18 least five years after being discharged before it must be accepted by DOE under OFF. See ECF
No. 46 at 21

– 22. Under its interpretation , Defendant argues that Mr. Graves’ model must be rejected as a matter of law because it assumes hypothetical acceptance of VYNPS’ short

- cooled fuel through the exchanges market in contradiction to the plain language of the Standard Contract.
See id. at 21. Because the parties’ arguments are rel ated, the Court will analyze the issues together. “Contract interpretation is a question of law.” Barron Bancshares, Inc. v. United States , 366 F.3d 1360, 1368 (Fed. Cir. 2004). Like statutory interpretation, a court’s interpretation of a
contract “begins with the language of the written agreement. ” NVT Techs., Inc. v. United States , 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing Foley Co. v. United States , 11 F.3d 1032, 1034 (Fed. Cir. 1993)) . “If the terms of a contract are clear and unambiguous, they must be given their plain meaning.” Barron Bancshares , 366 F.3d at 1375 ; see also Harris v. Dep ’ t of Veterans Affs. , 142 F.3d 1463, 1467 (Fed. Cir. 1998) (observing that t he words of a contract are given their ordinary meaning “unless the parties mutually intended and agreed to an alternative meaning ”). When presented with a question of interpretation, a court must consider the contract “as a whole,” giving meaning to all its parts such that no portion is rendered “useless, inexplicable, void, or superfluous.” NVT Techs. , 370 F.3d at 1159 (citations omitted). Based on the language of the Standard Contract, DOE’s obligation to accept short

- cooled fuel is clear an d unambiguous

. Appendix E of the contract classifies t hree categories of SNF : (1) standard fuel, which means SNF meeting all the general specifications set forth later in the appendix; (2) nonstandard fuel, which is defined as SNF that does not meet one or more of the general specifications; and (3) failed fuel , which means SNF that meets certain of the general19 specifications as well as certain additional criteria. 9 DA 143. For fuel to be considered standard, one of the general specification s impose s a minimum cooling time of five years. DA 144. Fuel that is cooled less than five years is classified as “Nonstandard Fuel

-- Class NS

- 3.” Id. ; see DA
145 (summarizing all SNF classifications, including four other classes of nonstandard fuel ). Articles V and VI of the Standard Contract define the parties’ delivery /acceptance and disposal obligations with respect to SNF , as defined in Appendix E

. Under section A of Article V (“Delivery of SNF and/or HLW”), the contract requires utilities to deliver to DOE, and DOE to accept, the SNF “described in accordance with Article VI.A.” 10 DA 11 1

. Under S ection A of Article VI ( “Criteria for Disposal” ) , DOE is re quired to accept “ only such SNF . . . which meets the General Specifications for such fuel ” in Appendix E

. DA 114. This section further provides that “DOE’s obligation for disposing of SNF under this contract also extends to other than standard fuel , ” which includes both nonstandard and failed fuel s under Appendix E

. DA 115 (emphasis added)

. However, unlike standard fuel that meets all the general specifications, this latter provision qualifies DOE’s acceptance obligation . Specifically, it requires a utility to “obtain delivery and procedure confirmation from DOE prior to deliver y ” of other than standard fuel. Id. Upon receiving a confirmation request, DOE has 60 days to advise the utility “as to the technical feasibility of disposing of such fuel on the currently agreed to schedule and any schedule adjustment for such services .” Id. Defendant recognizes that DOE ’s obligation to dispos e of SNF under the Standard Contract extends to other than standard fuel

. See ECF No. 46 at 23. It argue s , however, that DOE’s

9 Appendix E also acknowledges that fuel “may have ‘Failed Fuel’ and/or several ‘Nonstandard Fuel’ classifications.” DA 143. 10 Article V goes on to provide the procedures utilities must use to obtain approved DCSs , final delivery schedules, and exchange requests. DA 112

– 14.20 obligation is not un qualified because acceptance is conditioned on confirmation and technical feasibility

. Id. ; see ECF No. 48 at 15

– 16

. The Court agrees. That the Standard Contract imposes additional procedure s and approval based on DOE’s technical feasibility determination does not appear to be in debate , nor could it be given the plain language of the provision

. Compare ECF
No. 48 at 15

– 16 , with ECF No. 49 at 11

– 13. Instead, the parties primarily dispute what effect those conditions have on the timing for DOE to accept other than standard fuel and whether Mr. Graves’ model must be rejected as a matter of law because it is inconsistent with those conditions

. Taking those issues in turn, the Court disagrees that “t he Standard Contract makes no commitment as to when DOE must accept short

- cooled fuel

. ” ECF No. 46 at 23 (emphasis in original)

. To adopt such argument would allow the conditions of DOE’s accepting other than standard fuel to swallow the acceptance obligation itself

. As Plaintiff notes, the contract language could not be clearer: “DOE’s obligation for disposing of SNF under this contract also extends to other than standard fuel , ” which includes short

- cooled fuel. DA 115; s ee ECF No. 47 at 20. That obligation may come with additional conditions not imposed on standard fuel, but the plain language of the contract cannot be fairly read to absolve DOE of any d isposal timetable. Indeed, the conditions are themselves limited, especially as compared to other approval requirements in the contract that are explicitly left to DOE’s sole discretion (such as approving exchange requests ). Compare DA 115, with DA 113

. The con ditions define the standards by which DOE will exercise its discretion in reviewing delivery and procedure confirmation request s for other than standard fuel

— i.e. , approval decision s are to be based on technical feasibility and a disposal schedule adjustment is permitted if DOE identifies technical feasibility concerns. DA 115. Absent the need21 for an adjustment, the contract language contemplate s the disposal of other than standard fuel “on the currently agreed to schedule. ” 11 Id. Other judges of this court have rejected similar attempts by Defendant to undermine the obligation set forth in the same provision of Article VI, S ection A in cases involving failed fuel, which also is classified as other than standard fuel under Appendix E. See , e.g. , Pac. Gas & Elec. Co. v. United States , 73 Fed. Cl. 333, 400

– 01 (2006) (rejecting argument that a ut i lity “failed to meet its burden of establishing when DOE was obligated to accept [PG & E’s] failed fuel

. . . because it is possible that PG & E’s failed fuel would not have been accepted upon the [standard] OFF queue”)), aff ’ d in part, rev ’ d in part and r emanded , 536 F.3d 1282 (Fed. Cir. 2008); Yankee Atomic Elec. Co. v. United States , 73 Fed. Cl. 249, 310

– 12 (2006) (holding that the relevant provision “may not be fairly construed to indefinitely defer or postpone disposal” of failed fuel) , aff ’ d in part, rev ’ d in part and remanded , 536 F.3d 1268 (Fed. Cir. 2008)

. Defendant attempts to distinguish failed fuel case s . It argues that short

- cooled fuel

— unlike failed fuel

— will become standard fuel simply by the passage of time. See ECF No. 50 at 14. But the Standard Contract draws no distinctions in the treatment of t he various subclassifications of other th a n standard fuel, either among the classes of nonstandard fuel or between nonstandard fuel and failed fuel. See ECF
No. 47 at 20 ( noting that “[t]here is no carve out exception in the [contract] for short

- cooled, Class
NS

- 3 fuel”). The Court likewise disagrees with Defendant’s claim that the Standard Contract requires
SNF to be cooled for a minimum of five years before it can be accepted under OFF . ECF No. 46
at 22. This argument relies primarily on Defendant’s contention that interpreting the contract to

11 Under the Standard Contract , the only procedures for the parties to agree to a delivery schedule are set forth in Article V , and include the approved DCS, final delivery sched ule, and exchange request procedures

. DA 112

– 13.22 the contrary would render the general specification for minimum cooli ng

— which leads to a classification of either standard or nonstandard

— superfluous. Id. at 23, 25 ; ECF No. 50 at 14

. Because short

- cooled fuel is the only other than standard fuel that will eventually become standard, Defendant describes the Class N

- 3 designation as “ a placeholder designation ” and the minimum cooling time as a “ requirement ” that DOE can enforce to avoi d accepting short

- cooled fuel

. See
ECF No. 50 at 15 & n.10. But again, as Defendant conceded at oral argument, nowhere in the Standard Contract does it say that DOE can refuse to accept short

- cooled fuel

. See ECF No. 55 at 38:10

– 14. Short

- cooled fuel is classified as other than standard fuel, and thus is within the scope of DOE’s disposal obligation s. See DA 115. This interpretation does not render the minimum cooling specification “useless, inexplicable, void, or superfluous , ” Gould , 935 F.2d at 1274, because the plain language of the Standard Contract does not treat standard fuel and short

- cooled fuel indistinguishably. Rather, f uel that receives a Class NS

- 3 (short

- cooled fuel) des ignation is subject to the additional conditions stated in the other

- than

- standard

- fuel provision of Article VI.A , which do not apply to standard fuel

. DA 114

– 15. That provision permit s DOE to adjust a delivery schedule for other than standard fuel, including short

- cooled fuel, or (if there are no technical feasibility issues) to accept such fuel “on the currently agreed to schedule.” DA 115. Thus, to adopt Defendant’s argument , the Court either would have to (a) read into the other

- than

- standard

fuel disposal obligation an exception for short

- cooled fuel that simply is not there , or (b) construe the Class NS

- 3 designation as a placeholder where nothing indicates in the contract that it should be treated any differently than the other classes of nonstandard fuel. 12

12 If DOE intended to assign short

- cooled fuel only a placeholder classification without imposing a ny disposal obligation, it easily could have classified such fuel in its own category under Appendix E that recognized the interim nature of its other

- than

- standard

- fuel status.23 Defen dant cites to several cases that it contends “reiterate[] the five year cooling minimum as required by the Sta ndard Cont ract and understood by DOE and industry officials.” ECF No. 46
at 24 (citing, among other cases, Wis. Elec. Power Co. v. United States , 90 Fed. Cl. 714, 729

– 30 (2009) )

. Upon the Court’s review, the references in the cited decisions were generally made in passing without any meaningful discussion, and Defendant has not provided this Court with any of the underlying exhibits or testimony cited in the decisions such that the Court can conduct its own review

. Moreover, a s Plaintiff points out, the question of DOE’s acceptance of short

- cooled fuel does not appear to have been at issue in any of the cited decisions, and thus the ir persuasive value is not entirely clear. See ECF No. 47 at 22 n.12. In short , if Defendant pu rports that DOE intended the Standard Contr act to exclude any disposal obligation for short

- cooled fuel ( notwithstanding the plain language), it has failed to provide this Court with evidence de monstrating such intent. Turning to Plaintiff’s current damages model , Defendant claims that Mr. Graves effectively “models a but

- for world where short

- cooled fuel is accepted by DOE as if it were standard fuel” and therefore his model should be rejected as a matter of law. ECF No. 46 at 24 ; id. at 25 (“In fact, the Graves model does not account for DOE involvement at all when it comes to accepting short

- cooled f uel, including allowing the approval process to unfold or an altered timeline to be worked out

. ”). Plaintiff dis putes Defendant’s characterization, citing to two expert reports it intends to offer which opine that it would have been t echnically feasible for DOE to accept short

cooled fuel “in the manner and under the schedule alleged by [Plaintiff].” ECF No. 47 at 21 (quoting Report of Eileen Supko at 5 , ECF No. 47

- 6); see id. at 20

– 21 ( citing Report of Earl Easton,
ECF No. 47

- 5). The Court agrees with Plaintiff that any challenges to the assumptions on which the Graves model relies

— specifically, whether it was technical ly feasib le to accept short

- cooled24 fuel and what, if any, adjustment to the delivery schedule would be necessary

— present a genuine dispute as to material facts that can not be appropriately decided on summary judgment

. See id. a t 20 ; see Dairyland Power , 645 F.3d at 1371 (rejecting challenge to a utility’s exchanges

- based model that included acceptance of failed fuel and noting that “whether the ‘causal chain’ is sufficiently well

- formed is one of fact”)

. Accordingly, the Court grants in part Plaintiff’s Motion for Partial Summary Judgment and denies in part Defendant’s Motion for Partial Summary Judgment as to the question of whether the Standard Contract obligates DOE to accept and dispose of s hort

- cooled fuel , subject to certain conditions . The Court further denies Defendant’s motion to the extent it requests that the Court reject Plaintiff’s exchanges

- based model as a matter of law as being inconsistent with this obligation

. V. The Plain Language of the Standard Contract Limits Utilities to Exchanging Only Approved DCSs . Defendant raises an additional question of contract interpretation. It argues that the exchange s provision of the Standard Contract “allows utilities to trade [only] approved DCSs ” subject to certain timing constraints and advance approval of DOE,” an obligation for which it contends Mr. Graves’ model does not account

. ECF No. 46 at 26 (emphasis in original); id. at 27

– 28. In its opposition brief, Plaintiff does not contest Defendant’s interpretation , and it confirms that Mr. Graves’ “opinions do not depend upon utilities exchanging anything other than approved
DCS’s u nder the Standard Contract, nor does he fail to ‘account’ for DOE’s role.” ECF No. 47 at
23

– 24 (emphasis in original). The Court agrees with the parties’ reading of the exchanges provision, which plainly provides that utilities “shall have the right to exchange approved delivery commitment schedules ” with other contract holders. DA 113 (emphasis added). As the parties also agree, whether and25 how Mr. Graves’ model address es th is approval requirement involves a genuine dispute as to material fact s that c annot be resolved on summary judgment

. See ECF No. 50 at 15; ECF No. 47 at 28. Accordingly, the Court grants Defendant’s request for summary judgment with respect to the exchanges

- provision issue , but only as to the legal question of contract interpretation.
VI. Defendant Has Not Demonstrated that P ayments Made by Plaintiff to the Town of Vernon under the Tax Stabilization Contract Were Unfor e seeable a s a Matter of Law . Defendant challenges whether payments that it characterizes as “ voluntary subsidies ” made by Plaintiff to the town of Vernon, V ermont (“Town”) , were reasonably foreseeable and therefore recoverable

. ECF No. 46 at 28

– 30. Although the payments were made pursuant to a Tax Stabilization Contract (“TSC”) executed by Plaintiff and the Town, Defendant claims that Plaintiff

— acting as a “good corporate citizen”

— “agreed to subsidize the town” in an effort to prepare the Town for the lower tax revenue s it would collect following the shutdown of VYNPS. Id. at 29

– 30 (citation omitted)

. According to Defendant, DOE could not have foresee n that “a utility might negotiate a contract to pay specific amounts to a municipality ” for such purpose. See
ECF No. 50 at 16. Plaintiff , on the other hand , argue s that t hese payments represent property tax costs directly related to the value of the SNF being stored at the facility, which is a type of cost that ha s been routinely awarded in other SNF cases. See ECF No. 47 at 24 (citing Entergy Nuclear Indian Point 2, LLC v. United States , 128 Fed. Cl. 526, 533 ( 2016 ) ; Sys

. Fuels , Inc. v. United States , 120 Fed. Cl. 737, 759

– 62 ( 2015 ) ; Sy s. Fuels, Inc. v. United States , 70 Fed. Cl. 37, 68

– 70 (2007), rev’d in part on other grounds , 457 F. App’x 930 (Fed. Cir. 2012)).
For damages to be recoverable in a breach of contract claim , they must be , among other things, “reasonably foreseeable by the breaching party at the time of contracting

. ” Ind. Mich.
Power , 422 F.3d at 1373 . A plaintiff must prove foreseeability with respect to the type and26 magnitude of the damages sought

. Landmark Land Co. v. F.D.I.C. , 256 F.3d 1365, 1378 (Fed. Cir. 2001). “The mere circumstance that some loss was foreseeable, or even that some loss of the same general kind was foreseeable, will not suffice if the loss that actually occurred was not foreseeable.” Old Stone Corp. v. United State s , 450 F.3d 1360, 1376 (Fed. Cir. 2006) (emphasis in original) (alteration omitted) (quoting Restatement (Second) of Contracts § 351 cmt a. (1981)); see Anchor Sav. Bank, FSB v. United States , 597 F.3d 1356, 1364 (Fed. Cir. 2010). “Remoteness in space and time and the number of intervening events have obvious bearing on foreseeability.” Vt. Yankee Nuclear Power Corp. v. Entergy Nuclear Vt. Yankee, LLC (“ Vermont Yankee ”) , 683 F.3d 1330, 1344 (Fed. Cir. 2012). Defendant does not dispute that property tax es associated with a utility’s construction of

on - site dry storage facilities was foreseeable at the time the Standard Contract was signed, nor does it dispute that Plaintiff could not have ceased paying property taxes to the Town after VYNPS

s hut down. See ECF No. 47 at 24, 27

– 28; ECF No. 50 at 16

. Relying on Vermont Yankee , Defendant contends that Plaintiff’s payments to the Town are not recoverab le as a matter of law.
See ECF No. 46 at 28; ECF No. 50 at 16. I t emphasizes that Plaintiff made these payments pursuant to a private agre ement with the Town “in lieu of the annual Municipal Services Property
Tax [], ” ECF No. 46 at 29 (alteration in original), for an amount “not determined based on a formula considering the assessed valu e of specific property ,” ECF No. 50 at 16, and with the intention of “easing the impact on the town of a plant shutdown,” id. According to Defendant , it is “the mechanism by which the payment [s] came to be made” that makes them unforeseeable. ECF No

. 55 at 49:7

– 8. Vermont Yankee , however, did not turn on the manner by which ENVY incurred the
costs

— i .e. , by agreement versus by operation of law . It turned on the type of cost s incurred

. See27 Vt. Yankee , 683 F.3d at 1344 ; see also Anchor Sav. Bank , 597 F.3d at 1364 (general principles of contract damages do not “impose a restrictive test of foreseeability in which the specific mechanism of loss must be foreseeable”). In Vermont Yankee , which was an appeal taken in round one , the Federal Circuit held that certain costs incurred by Plaintiff’s predecessor, Entergy Nuclear Vermont Yankee (“ENVY”), to obtain the Vermont legislature’s approval to build the first on

- site dry storage facility at VYNP S were foreseeable, while others were not. Vt. Yankee , 683 F.3d at 1343

– 44. The Court noted that, at the time the then

- owner of VYNPS executed the Standard Contract in 1983, state law required legislative approval for a utility to construct a storage facility for SNF. Id. at 1343. Although the then

- owner enjoyed a company

- specific statutory exemption, the Court held that it was not unforeseeable that the future owner ( i.e. , EVNY) would need to obtain the required approval and, as a result, incur at least some legal and lobbying fees. Id. at 1346. However , the Court reached a contrary conclusion regarding the money ENVY contributed to Vermont’s Clean Energy Development Fund, which was a condition of the legislature’s approval. Id. As the Court explained, the fund was not created until 2005, the payments ENVY made into the fund concededly had nothing to do with dry cask storage of SNF at VYNPS, and the Court expressed serious concerns that Vermont’s requiring such contributions was preempted by federal law. Id. at 1346

– 47. In other words, this particular type of cost was not foreseeable and thus not recoverable. Id. at 1344 (citing Landmark Land , 256 F.3d at 1378). Despite Defendant ’s attempt to draw a parallel between the non

- recoverable clean energy fund contributions to the state in Vermont Yankee and the payments to the Town in the instant case , the two types of payments are not comparable. See id. at 1347 ( emphasizing that non - recoverable fund payments were “particularly unforeseeable” given they were likely unconstitutional).
Moreover , Defendant has not demonstrated the absence of a genuine dispute as to the material28 facts necessary to determin e whether the payments to the Town are a type of cost that was foreseeable. A lthough the TSC indicates the payments were made in lieu of the annual property tax, Plaintiff points to the testimony of its tax officer, Cory Gruntz, who stated that the “[t]he purpose of the negotiations was ‘to come up with a sui table assessed value [of VYNPS property] that resulted in tax payments that [both parties] could live with.’” ECF No. 47 at 25 (emphasis added) ( quoting Dep. Tr. of Cory Gruntz (“Gruntz Tr. ” ) at 97:2

– 16 , ECF No. 47

- 9 ) ; see Vt. Yankee , 683 F.3d at 1345 (contrasting non

- recoverable fund payments with foreseeable “ adverse tax consequences of the plaintiffs’ mitigation activities ”). The payments were remitted with tax bills issued to Plaintiff by the Town. See DA 1

– 3. Although the tax payments were not ba sed on the grand list’s assessed value, Plaintiff notes that t he Town performed an assess ment and assigned a value of $78 million directly related to the dry storage facilities at VYNPS

. 13 ECF No. 47 at 26 ( valuing “all property in the ISFSI” at $58 million and the “real property, land and buildings . . . used as part of the ISFSI and [SNF] preparation and storage” at $20 million (quoting DA 7) ) ; s ee Vt. Yankee , 683 F.3d at 1346 ( observing that non - recoverable fund payments “bore no relationship to any costs incurred . . . as a result of the construction of the dry storage facility”)

. Mr. Gruntz further testified tha t “the absence of an ISFSI would ‘have changed the negotiated val ue in place during the period of the [TSC].” ECF No. 47 at 26 ; see ECF No. 47

- 9 at 16 ( Gruntz Tr. at 151:16

– 22). And although Mr. Gruntz agreed that Plaintiff’s negotiation position considered the impact on the Town of an immediate drop in Plaintiff’s tax payments, h e also explained that hi s primary goal in the

13 Th e assessed value of $78 million appears to be the same as the grand list value used for the Statewide Education Tax payments, which Defendant does not challenge o n foreseeability grounds. See DA 9; ECF No. 50 at 15

– 16.29 negotiations “was to get the best economic outcome for the company and to minimize the property taxes” paid. ECF No. 47

- 9 at 7 ( Gruntz Tr. at 41:3

– 5 ) ; id. at 14 (Gruntz Tr. at 13 0 : 14

– 131:12 )

. The Court does not rule out that Defendant may present at trial additional evidence that calls into question whether the payments to the Town reasonably can be construed as a foreseeable mitigation of Plaintiff’s tax liability , as Plaintiff claims

. See Anchor Sav. Bank , 597 F.3d at 1364 ( noting that general principles limit damages where “ the loss that actually occurred was not foreseeable” or “ when unforeseeable events result in enhanced losses to the non

- breaching party ”).
H owever, giving credit to Plaintiff’s evidence, as the nonmovant , the Court finds that Defendant has not shown that the se payments were unforeseeable as a matter of law, and thus its request for partial summary judgment in that regard must be denied.
VII. Defendant Has Not Demonstrated that Plaintiff’s Pre
- 2017 Site Security Costs Are Not Recoverable as a Matter of Law . Defen dant claims Plaintiff’s pre

- 2017 site security costs are not recoverable because they would have been incurred , irrespective of DOE’s partial breach , as part of Plaintiff’s regulatory security plan requirements . ECF No. 46 at 30

– 31 (citing 10 C.F.R. § 73.55)

. These costs total approximately $10,174,208 for 48 security personnel charged with securing the original protected area at VYNPS, which included both the ISFSI and the spent fuel pool. See id. at 30 (citing DA 170). Plaintiff contend s that it is not obligated to demonstrate that the total number of security personnel would have increased because of DOE’s breach in order to recover the claimed security
costs. See ECF No. 47 at 29. Rather, relying on Federal Circuit decisions approving recovery of overhead costs in SNF cases, it argues that Plaintiff may recover a properly allocated percentage of t he total security costs assigned to the ISFSI P roject. See id. at 28. The Court agrees that , notwithstanding the regulatory requirements , Plaintiff’s recovery of security costs is not precluded as a matter of law

.30 The Federal Circuit has repeatedly approved awards in SNF cases for overhead costs that

are fairly allocated to support mitigation efforts

. See, e.g. , Energy Nw. v. United States , 641 F.3d 1300, 1309 (Fed. Cir. 2011) . These types of indirect costs include “certain overhead services that [a utility] provide[s] for the benefit of all its operations (not only its mitigation activities).” Id. at 1311 (emphasis added)

. Examples of non - mitigation

- specific expenses awarded in SNF cases include “administrative, management, information services, and resource development expenses,” id. at 1304, as well as costs of “plant security [and] emergency response system s,” So. Cal. Edison Co. v. United States , 655 F.3d 1319, 1321 (Fed. Cir. 2011). To demonstrate recoverability, a utility need not prove that “overhead costs actually . . . increased over the non

- bre ach world .” Energy
Nw. , 641 F.3d at 1309

. Nor is it dispositive that the claimed costs otherwise would have been incurred as a result of normal business operations. See So. Cal. Edison , 655 F.3d at 1322

. Rather, having established that mitigation efforts were undertaken as a result of DOE’s breach, utilities are “entitled to prove the amount of the associated cost (including both direct and indirect costs) by whatever reasonable techniques are available.” Energy Nw. , 641 F.3d at 1309. One such way is through allocation of overhead costs to mitigation activities on a percentage basis. See So. Cal. Edison , 655 F.3d at 1322 ( holding that allocation of indirect overhead costs to a utilit y’ s I S FSI project was not erroneous because , if not, other projects and facility operations “ would support an unequal share of the overhead costs” ( alteration omitted) (citation omitted)). Consistent with that precedent, whether Plaintiff can recover the pre

- 2017 security costs it assigns to the ISFSI Project involves a genuine dispute as to material fact s
. See ECF No. 47 at 29; see also Energy Nw. , 641 F.3d at 1309 (agreeing that an “award of damages for overhead costs is a factual quest ion of the damages amount, not a legal question of causation”). To support its damages claim for security costs, Plaintiff produced a white paper prepared by VYNPS security31 management prior to the facility shutting down in 2014

. See DA 79

– 83. The paper projects the sitewide security costs to be incurred at VY NPS through (and beyond) the current claim period and allocates such costs between three categories of activities: (1) Independent Spent Fuel Storage, (2) Spent Fuel Management ( i.e. , the pool) , and (3) License Termination. See DA 79; see also DA 55 (Dep. Tr. of Patrick Ryan (“Ryan Tr.”) at 17: 4

– 11). Through 2016, the paper estimates that 48 security personnel out of VYNPS’ total security staff should be allocated to the ISFSI Project. See
DA 83. This accounts for 43

– 55 percent of Plaintiff’s total security costs. Id. According to Patrick Ryan, Plaintiff’s site security manager, this figure was chosen because 10 C.F.R. § 73.55 required Plaintiff to mai ntain a team of 48 security personnel responsible for protecting the entirety of the facility’s protected area, which included the ISFSI. DA 60

– 63 ( Ryan Tr. at 39:22

– 42:19 )

. Mr. Ryan acknowledged , however, that the regulation required 48 security personnel to be assigned to the protected area regardless of the construction of the ISFSI. DA 74

– 75 ( Ryan Tr. at 74 :21

– 75 :4 ) ;

see DA 73 (Ryan Tr. at 73 :7

– 10 ) (explaining that if all the SNF had not been relocated to the ISFSI and remained in the pool the required number of security personnel would actually increase by

one )

. Although these fact s will unquestionably be relevant to determining whether Plaintiff has shown a sufficient basis upon which the Court can be “ reasonably certain that the claimed damages were caused by the breach , ” Energy Nw. , 641 F.3d at 1309 , it does not establish that the claimed
pre - 2017 site security costs are non

- recoverable in their entirety as a matter of law. See ENVY , 95 Fed. Cl. at 183 (“Reasonable certainty also is a question of fact.” (citing Bluebonnet Sav. Bank v. United States , 266 F.3d 1348, 1356

– 58 (Fed. Cir. 2001 ) ))

. Instead, factual presentation is
necessary for the Court to determine whether Plaintiff’s allocation of security costs to its mitigation activities during the current claim period is supportable and sufficiently related to DOE’s breach.32 See Sys. Fuels, Inc. v. United States , 666 F.3d 1306, 1311 (Fed. Cir. 2012) ( explaining that “ ‘ the amount of damages need not be ‘ascertainable with absolute exactness or mathematical precision,’ [but that] recovery for speculative damages is precluded.’ ” (quoting Ind. Mich. Power , 422 F.3d
at 1373) ); So. Cal. Edison , 655 F.3d at 1 322

. Accordingly, the Court denies Defendant’s Motion for Partial Summary Judgment with respect to Plaintiff’s pre

- 2017 site security costs.
CONCLUSION For the se reasons, Plaintiff’s Motion for Partial Summary Judgment and Entry of Partial Final Judgment (ECF No. 45) is GRANTED IN PART and DENIED IN PART , and Defendant’s Motion for Partial Summary Judgment (ECF No. 46) is GRANTED IN PART and DENIED IN
PART

. Further proceedings will be scheduled in a separate order.
SO ORDERED

.

Dated: April 21 , 2022 /s/ Kathryn C. Davis KATHRYN C. DAVIS Judge