Yankee Atomic Electric Co. v. United States

OPINION and ORDER 1

MEROW, Senior Judge.

Three nuclear utilities seek damages for the Department of Energy’s (“DOE”)’s *251 breach of contract to accept, transport, and dispose of their spent nuclear fuel (“SNF”). 2 Substantial storage costs for SNF are borne by utility ratepayers whose rates also reflect the $440.5 ± million paid or to be paid to DOE under the contracts involved. Breach of contract by the United States has been established. Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1342 (Fed.Cir.2000). Plaintiffs seek to recover their incurred SNF storage costs from the United States as mitigation expenses — commercially reasonable and foreseeable responses to DOE’s admitted decade-long delay in commencing performance. Defendant counters that many, if not most, of the costs would have been incurred regardless of DOE’s delay. Trial in this matter consumed seven weeks.

INTRODUCTION

In 1983, pursuant to the Nuclear Waste Policy Act of 1982 (“NWPA”), Pub.L. No. 97-425, 96 Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2000)) plaintiffs, along with all domestic nuclear utilities, entered into Standard Contracts with DOE wherein, in return for payment of substantial fees, DOE would accept title to, transport and dispose of the utilities’ SNF, commencing performance no later than January 31, 1998. Due in part to the highly regulated nature of the industry, entry into Standard Contracts was mandatory. “Nuclear plant operators and utilities were mandated by Congress to enter into Standard Contracts, the terms of which are presented at 10 C.F.E. § 961.11, as a prerequisite to obtaining renewal of their operating licenses.” Indiana Michigan Power Co. (hereinafter “Ind. Mich.”) v. United States, 422 F.3d 1369, 1372 (Fed.Cir.2005) (citing 42 U.S.C. § 10222 (a)(1)); Maine Yankee, 225 F.3d at 1337 (“ ‘The NWPA effectively made entry into such contracts mandatory for the utilities.’ ”). DOE did not commence performance by 1998 as required by the NWPA and the Standard Contract. While insisting there will be performance, the date continues to recede from 2010 to 2017, the latest prognosis.

Plaintiffs assert that the delay in DOE’s performance has resulted in substantial damages. All three plaintiffs’ nuclear reactors have been shut down. They contend that if DOE had timely commenced performance, all their SNF would no longer be on-site (or at least they would not be responsible for it); and accordingly, their sites would have been “decommissioned” and available for other use.

At trial, damages were presented on actual and future costs for time periods preceding January 31, 1998 (pre-breach) through 2012 (2011 for Maine Yankee). See Yankee Atomic Elec. Co. v. United States, 2004 WL 1535688 , at * 1-3 (June 28, 2004). Future costs were based in substantial part on cost projections approved by regulators for rate base purposes. As such, these costs were subject to public notice and opportunity for input, analysis and criticism. After trial was completed, the Circuit Court issued its decision in Indiana Michigan and held that, in any suit for breach of an SNF contract, recoverable costs were limited to those actually incurred up to the date the litigation was initiated. Trial, as well as post-trial briefing and proposed findings in the instant cases included future damages based on the then assumption that DOE planned to commence performance in 2010. Following the ruling in Indiana Michigan, the court requested supplemental briefing. Thereafter, plaintiffs’ Motion to Amend their Complaints was granted in part, and record evidence was limited to damages actually incurred through 2001 for Yankee Atomic and Connecticut Yankee, and through 2002 for Maine Yankee. These damages involved costs actually incurred as of trial and contained in plaintiffs’ pre-trial and trial evidence. Costs asserted for periods beyond these time periods were dismissed without prejudice to their reassertion in future litigation.

Upon careful consideration of testimony, argument, documents and exhibits, the court *252 concludes that the plaintiffs reasonably incurred substantial and foreseeable costs in mitigating DOE’s acknowledged impending and substantial delay in commencement of performance of the contracts involved, and that the delay was a substantial causal factor in their respective expenditure decisions. Accordingly, plaintiffs are entitled to recover certain, but not all, mitigation costs claimed as damages for DOE’s partial breach in not commencing contract performance by January 31, 1998.

Technical summary

The nuclear waste problems involved in this litigation commence with the content of the fuel rods. Uranium oxide pellets (little finger-sized) are placed into 12-14 foot metal rods of about the same diameter and bundled together with metallic bands into “assemblies.” Each fuel assembly contains about one metric ton of uranium (“MTU”). A fuel assembly is approximately nine inches square and fourteen feet long. (PX 1926.001; Yankee Atomic’s Proposed Findings of Fact (“YA PFF”) 9; Maine Yankee’s Proposed Findings of Fact (“MY PFF”) 8; Connecticut Yankee’s Proposed Findings of Fact (“CY PFF”) 8 and Def.’s Resps.) Assemblies are placed in the reactor core where fission produces heat which is converted to steam to drive turbines and generate electricity.

Within twelve to eighteen months, the uranium in the rods becomes relatively inefficient. The reactor is shut down, the assemblies removed and placed on-site in adjacent “wet” pools of treated water where the SNF is cooled for at least five years. 3 Wet pools involved in this litigation are about 80 by 40 feet, are made of concrete, lined with stainless steel and filled with treated water that shields radioactivity. Boric acid, which absorbs neutrons, and spacing in the racks help prevent “criticality” — self-sustaining fission reaction resulting from the interchange of neutrons. The assemblies are placed in basket-like racks lowered into the pools. When SNF is removed from the reactor core, it is still capable of attaining criticality. Transporting rods in or out of the reactor core, or in and out of the wet pool, is a complex, expensive and highly regulated process. (YA PFF 11-15 and Def.’s Resp.) See Twp. of Lower Alloways Creek v. Pub. Serv. Elec. & Gas Co., 687 F.2d 732, 737 (3rd Cir.1982). Storage, and most activities in and around the plant, are regulated by the Nuclear Regulatory Commission (“NRC”). See generally 10 C.F.R. pts. 72-73 (2004).

The size and configuration of the spent fuel pool and the racks constrain the number of spent fuel rods that can be stored there. The reactor core can hold only a limited number of rods. Storage need is triggered by the removal of either “spent” fuel or damaged assemblies from the reactor core. Also, repair or inspection of the reactor core requires removal of all the fuel. Irradiated tools are also stored along the walls of the pool.

“Pool capacity” refers to the maximum number of rods that can be stored in a pool. “Full core reserve capability” is the maintenance of sufficient unused space in the pool for all the rods in the reactor core. Maintaining full core reserve (“FCR”) is a common safety-enhancing practice. (Tr. 2591-92 (Mellor); Tr. 2672, 2676 (Heider); Tr. 2850 (Whittier); Tr. 5430-31 (Abbott).) Certain NRC inspections require a FCR. (Tr. 2857 (Whittier).) While the NRC did not require FCR, such a contingency was preferred. (Tr. 2856 (Whittier).) Maine Yankee had discharged all of its fuel rods into the spent fuel pool for repair of the core’s thermal shield and for inspections of the reactor vessel. (Tr. 2857 (Whittier).)

Reracking is the use of higher density racks, resulting in a tighter configuration, allowing more fuel assemblies to be stored in the pool. (Tr. 2849 (Whittier); Tr. 2590 (Mellor); Tr. 1552; Tr. 2306 (Bennet); MY PFF 104 and Def.’s Resp.)

From 1992 to 1997, Maine Yankee expanded its on-site storage capacity by reracking its spent fuel pool for the third time. (MY PFF 103 and Def.’s Resp.) From 1995 to 1997, Connecticut Yankee expanded its on- *253 site storage capacity by reracking its spent fuel pool for the second time. (CY PFF 109 and Def.’s Resp.) Yankee Atomic reracked in 1979-80, adding a second tier of fuel storage racks. These costs, incurred prior to the signing of the contracts involved here, are not included in Yankee Atomic’s requested damages.

Yankee Atomic’s nuclear reactor core held 76 fuel assemblies. (YA PFF 10 and Def.’s Resp.) Connecticut Yankee’s reactor core held 157 and Maine Yankee’s held 217. (CY PFF 9; MY PFF 13 and Def.’s Resps.) A full-size demonstration fuel assembly was in the courtroom during trial and a photograph is in the record. (Tr. 1571; PX 1926.001-PX 1926.004.) They, together with other photographs and a miniature display of the components and process of transfer of SNF were helpful in comprehending the magnitude, complexity and costs of the mitigation and storage efforts taken here.

Spent fuel remains highly radioactive and hazardous for an extraordinary length of time. (MY PFF 8-10 and Def.’s Resp.) A risk standard of 10,000 years appears to be the current (albeit rejected) design standard for Yucca Mountain, Nevada, the site where DOE plans to store SNF it obtains under the contracts involved in this litigation. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266-73 (D.C.Cir.2004) (rejecting 10,-000 year radiation standard as inconsistent with the National Academy of Science recommendations incorporated into Section 801(a) of the Energy Policy Act); 70 Fed:Reg. 49,-014-01 (Aug. 22, 2005) (proposed revision to add peak damage standards for a period beyond 10,000 years); 70 Fed.Reg. 53,313-02 (Sept. 8, 2005) (proposed amendment to NRC regulations to implement EPA’s proposed additional changes).

History

The following summary, which is probative with respect to the context in which the parties contracted for the removal and disposal of the SNF is derived in substantial part from Florida Power & Light Co. v. Westinghouse Electric Corp., 826 F.2d 239 (4th Cir.1987).

After the government’s Manhattan Project during World War II for the military use of atomic power (at a cost of over $2 billion and an employment force of over 600,000 in 37 installations in the United States and Canada), interest shifted to commercial use of atomic energy. That interest, tempered by public health and safety concerns, culminated in the Atomic Energy Act of 1954 as amended, 42 U.S.C. §§ 2011 et seq. Therein, Congress declared that the “[sjource and special nuclear material, production facilities, and utilization facilities” for the use of nuclear energy were to be treated as “affected with the public interest” and strictly regulated “in the national interest to assure the common defense and security and to protect the health and safety of the public.” § 2012(e). The Atomic Energy Commission (“AEC”) was created to effectuate this program which included the development of a commercial nuclear electric industry. 42 U.S.C. §§ 2031 et seq.

Disposal of SNF posed a “severe potential health hazard” with “complex technical problems.” Natural Res. Def. Council v. NRC, 547 F.2d 633 , 638 n. 10 (D.C.Cir.1976), rev’d in part and remanded in part sub nom., Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 , 98 S.Ct. 1197 , 55 L.Ed.2d 460 (1978). Congress accepted federal responsibility for spent fuel disposal. “The stated policy of the Federal Government has always been that the safe disposal of high-level waste is to be accomplished under Federal management.” 1980 U.S.Code Cong. & Admin. News at 6934 (emphases added).

The AEC assumed responsibility for the spent fuel if reprocessing was not available, announcing that “a [governmental] policy of assuring the nuclear power industry that the Government would, in the event that commercial reprocessing services were not available at reasonable times and conditions when irradiated power reactor fuels were discharged from their reactors, make financial settlement for the materials contained in those elements, and reprocess them.” 4 Fla. *254 Power & Light Co., 826 F.2d at 246 (citing a February 27, 1957 Federal Register AEC announcement). The government demonstrated its firm resolution to carry out this 1957 commitment. Although the government’s reprocessing facilities required some minimal adaptation in order to process SNF from commercial reactors, Congress, at the instance of the AEC, made funds available for such adaptation in 1959. The government punctually complied with its 1957 commitment.

According to the House Report on the NWPA, Congress relied on reprocessing rather than permanent storage. 40 Fed.Reg. 42801-02 (Sept. 16, 1975); 1982 U.S.Code Cong. & Admin. News at 3793. However, plutonium, a key component of nuclear weapons, is a by-product of reprocessing. There was concern that reprocessing would promote nuclear proliferation. Westinghouse Elec. Corp. v. NRC, 598 F.2d 759 , 762 n. 4 (3rd Cir.1979).

Reprocessing suffered other setbacks. Nat. Res. Defense Council v. NRC, 539 F.2d 824 (1976), held that the AEC could not grant licenses for reprocessing facilities or for the transportation of plutonium and uranium mixed oxide fuel pending further regulatory review, although the review procedure was affirmed. Certiorari was sought. 430 U.S. 944 , 97 S.Ct. 1578 , 51 L.Ed.2d 791 (1977). 5 Two months later, in October 1976, then-President Carter issued a policy statement urging temporary deferral of reprocessing. 1982 U.S.Code Cong. & Admin. News, 3794.

Utilities then sought regulatory approval to rerack their wet pools to increase storage as there was no other way to deal with then-spent fuel. “No one disputes that solutions to the commercial waste dilemma are not currently available.” Minn. v. NRC, 602 F.2d 412 , 416 (D.C.Cir.1979). Reracking was authorized. See 1982 U.S.Code Cong. & Admin. News, 3803.

President Carter then banned reprocessing, announcing that “spent fuel reprocessing and the development of advanced plutonium non-based reactors would be indefinitely deferred in this country,” but “the Federal government would provide interim storage for utilities’ spent fuel.” 1982 U.S.Code Cong. & Admin.News, 3794. However, no Congressional authority for interim storage was obtained and no storage facility was then planned or constructed.

In October 1977, DOE announced its “New Spent Fuel Policy” implementing President Carter’s indefinite suspension of reprocessing. DOE described this new policy as “ ‘a logical extension ... of the long-established Federal responsibility for permanent disposal of high-level wastes.’ ” Fla. Power & Light Co., 826 F.2d at 251 (emphasis added.) Permanent storage was planned, backed up by interim storage. Upon payment of an unspecified storage fee, the government would take title to the spent fuel; however, “questions surrounding the permanent disposition of nuclear wastes have not yet been resolved.” “If, at some time in the future, the U.S. should decide that commercial reprocessing or other energy recovery methods for spent fuel can be accomplished economically and without serious proliferation risks, the spent fuel [can] either be returned with an appropriate storage charge refund, or compensation could be provided for the net fuel value.” Id. at 252 .

Recently, interest in reprocessing or “recycling” has resurfaced. In the Energy Policy Act of 2005, Congress appropriated $50 million to DOE to explore a “new kind” of reprocessing — “advanced fuel recycling technology” or “transmutation techniques.” 42 U.S.C. § 16271 , 16273 (2005); see also Matthew Wald, Scientists Try to Resolve Nuclear Problem With an Old Technology Made New Again, N.Y. Times, December 27, 2005, at D3.

*255 In October 1981, President Reagan lifted “the indefinite ban which previous administrations placed on commercial reprocessing facilities in the United States.” “We will pursue consistent, longterm policies concerning reprocessing of spent fuel from nuclear power reactors and eliminate regulatory impediments to commercial interest in this technology, while insuring adequate safeguards.” That the government failed in meeting “its responsibilities” in this regard was accepted. 17 Weekly Comp, of Pres. Doc., 1101-02 (October 12, 1981). Congress admitted that “[fjailures in the Federal repository development program, the collapse of the domestic spent fuel reprocessing industry and quickly deteriorating public confidence in our ability to deal safely with nuclear waste, together with other critical safety and economic issues, were seriously undermining the strength of the domestic nuclear industry” and that “[n]uelear waste management was on its way to becoming a top Federal energy priority.” 1982 U.S.Code Cong. & Admin. News, 3794-95.

The Nuclear Waste Policy Act

The Nuclear Waste Policy Act of 1982 (“NWPA”), Pub.L. 97-425, 96 Stat. 2201 (codified as amended at 42 U.S.C. § 10101-10270 ), enacted on January 7,1983, reaffirmed federal responsibility “to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment.” 42 U.S.C. § 10131 (a); Ind. Mich, 422 F.3d at 1372 . Congress recognized that SNF was a national health and safety concern, that the disposal of nuclear waste was a federal responsibility, that 30 years of government attempts to meet this responsibility were inadequate, and that utilities should bear the financial responsibility for storage until the government “accepted” the waste under mandated contracts. “From the beginning of the Atomic Age, it has been a given that the Federal Government has the responsibility for eventual disposal of high level radioactive wastes and spent fuel. However, the absence of specific arrangements for disposal of this material has been a substantial impediment to public acceptance of the use of nuclear energy.” (PX 353 at MOL. 19980527.0086.0004 (May 17, 1984 Confirmation Statement of Bernard Rusche, President Reagan’s nominee for Director of the Office of Civilian Radioactive Waste Management).)

The NWPA directed the Secretary of Energy to find an appropriate repository site, 42 U.S.C. § § 10132-33, and following Presidential and Congressional approval of that selection, proceed with construction authorization through the NRC. Id. §§ 10134-35. A 1987 amendment directed the Secretary to select Yucca Mountain in Nevada. Pub.L. No. 100-23 § 5011 , 1001 Stat. 1330 at 227-31 (1987) (codified at 42 U.S.C. § 10172 ). In the event Yucca Mountain proved unsuitable, DOE was directed to terminate site-specific activities and report to Congress. See 42 U.S.C. § 10133 (c)(3).

Congress directed DOE to “enter into Standard Contracts with all entities that generate or hold title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent transportation, and disposal of such waste or spent fuel.” Ind. Mich, 422 F.3d at 1372 (citing 42 U.S.C. § 10222 (2000)). Utilities would pay fees to the Secretary of Energy for deposit into the Nuclear Waste Fund (“NWF”). 6 48 Fed.Reg. 5,458-01, 5,464 (Feb. 4, 1983). Yankee Atomic has paid $22.5 million into the NWF. (YA PFF 1 and Def.’s Resp. 7 Connecticut Yankee has paid *256 approximately $41 million into the NWF, with about $153 million remaining to be paid. (CY PFF 1 and Def.’s Resp.) Maine Yankee has paid approximately $65 million, with about $159 million remaining. (MY PFF 1 and Def.’s Resp.) Plaintiffs have paid a total of $128.5 million into the NWF, with $312 million remaining to be paid for a total of $440.5 million. In the aggregate, nuclear utilities have paid over $20 billion into the NWFY. 8 In the end, “DOE was exclusively responsible for SNF collection and disposal in the United States, thereby prohibiting Indiana Michigan or any other nuclear utility from seeking alternative disposal means.” Ind. Mich., 422 F.3d at 1374 (citing 42 U.S.C. § 10131 (a)(4), (b)(2); Roedler v. DOE, 255 F.3d 1347 , 1350 (Fed.Cir.2001))).

Nevertheless, the repository at Yucca Mountain remains unbuilt and commencement of contract performance is further on the horizon. Recently, DOE announced that if “requested legislative changes are enacted, the [Yucca Mountain] repository will be able to accept spent nuclear fuel and high-level waste starting in early 2017.” www.energy.gov/news/3845.htm (last visited July 27, 2006); see also Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1273 (D.C.Cir.2004) (agency’s interpretation of environmental risk standards did not comport with statutory dictate to comply with standards of the National Academy of Science); Matthew Wald, Big Question Marks on Nuclear Waste Facility, N.Y. Times, Feb. 14, 2006 at C-4.

Development of the Standard Contract

Because DOE employed a rule making “notice and comment” procedure, the industry had only a thirty day period to comment on a proposed contract valued in the billions that would last for decades. The nuclear industry, however, had substantial input into the formulation of the Standard Contract. DOE met with industry representatives on January 19, 1983. (Tr. 344-45, 472-74 (Mills); Def.’s PFF 21-23.)

The proposed Standard Contract was published on February 4, 1983 with a 30 day comment period. Comments were received from 85 entities. Utilities noted the lack of a minimum rate at which DOE would “accept” the spent fuel, commenting that “a commitment to do no more than start accepting delivery by 1998 is empty and meaningless without setting forth some reasonable minimum rate of acceptance which corresponds to the purposes of the Act.” 9 (DX 2.063 at ACR0010537.)

Yankee Atomic’s comments contrasted its obligation to its ratepayers who would bear the cost of the substantial up-front fee investment payable in mid-1983 (under the chosen payment option), while DOE’s obligations would not begin until almost fifteen years *257 later on January 31, 1998. 10

Exchanges

The majority of commenting utilities wanted to be able to exchange their delivery commitments, but the published proposal did not contain that option. TVA suggested: “Purchaser shall have the right to ... sell or trade its priority ranking to other Purchasers.” (DX 2.063 at ARC0010538.) EEI requested explicit language allowing exchanges. (DX 2.034 at ADM002.0291-92.) Yankee Atomic and others also made the request. (DX 2.023 at ADM002.00197; DX 2.012 at ADM002.0111 (Northern States Power); DX 2.015 at ADM002.00136 (Consumers Power); DX 2.018 at ADM002.00173 (Gulf States Utilities); DX 2.033 at ADM002.0264 (Portland General Electric).)

DOE granted the request; exchanges were provided for in the final Standard Contract. DOE recognized that exchanges were necessary for program efficiency. “After consideration, aside from some complex record-keeping, this poses no problem — no great problem to us and consequently, we [DOE] have accepted this suggestion. It will require our approval and we intend to be reasonable ____[w]e felt that it was a necessary component to make that system work efficiently.” (PX 30 (DOE Memorandum of April 8, 1983 to and approved by Secretary Hodel concerning the final contract explaining the establishment of exchange rights).)

Priority for shut down reactors

Despite industry comments opposed to possible priority for shut down reactors, that provision was retained. See 48 Fed.Reg. at 5,464 (proposed contract, Art. VI(B)(3)(b)) (“Notwithstanding the age of the SNF and/or HLW, priority may be accorded any SNF and/or HLW removed from a civilian nuclear power reactor that has reached the end of its useful life or has been shut down permanently for whatever reason.”); 48 Fed.Reg. at 16,590, Art. VI(B)(1)(b) (“Notwithstanding the age of the SNF and/or HLW, priority may be accorded any SNF and/or HLW removed from a civilian nuclear power reactor that has reached the end of its useful life or has been shut down permanently for whatever reason.”). “This type of priority is necessary to prevent reactors from waiting 20 or 30 years to be decommissioned after they finish generating electricity.” 48 Fed.Reg. 16,590,16,593 (April 19,1983) Supplementary Information, Art. (VI).

Final contract

On April 18, 1983 DOE issued the final Standard Contract. 48 Fed.Reg. 16,590-01.

This contract applies to the delivery by Purchaser 11 to DOE of SNF and/or HLW 12 of domestic origin from civilian nuclear power reactors, acceptance of title by DOE to such SNF and/or HLW, subsequent transportation and, with respect to such material, establishes the fees to be paid by the Purchaser for the services to be rendered hereunder by DOE. The SNF and/or HLW shall be specified in a delivery commitment schedule as provided in Article V below. The services to be provided by DOE under this contract shall begin, after commencement of facility operations, not later than January 31, 1998 and shall continue until such time as all SNF and/or HLW from the civilian nuclear power reactors specified in Appendix A, annexed hereto and made a part hereof, has been disposed of.

*258 10 C.F.R. § 961.11 at Art. II (emphasis supplied). DOE’s obligation to commence performance was not conditioned on the existence of “a facility.” 13 The “not later than January 31, 1998” qualifies that possibility— DOE’s performance was to begin no later than such time as a “facility” was operational, or January 31, 1998, whichever first occurred. Ind. Mich. v. Dept. of Energy, 88 F.3d 1272, 1276-77 (D.C.Cir.1996); N. States Power Co. v. Dep’t of Energy, 128 F.3d 754, 760 (D.C.Cir.1997).

Notably, the Standard Contract did not contain an acceptance rate, despite industry comments. Relying on the Standard Contract’s amendment provision, Robert Morgan, Director, Nuclear Waste Policy Act, Project Office, on June 11,1983 (the deadline for executing the Standard Contract was June 30, 1983) wrote to John Kearney, Senior Vice President of Edison Electric Institute:

[tissues of concern to the industry and the Government can be reexamined, and modifications may be made to the standard contract provided that sufficient justification exists and it does not change the intent of the final rule. This is precisely the reason we have Article XV, ‘Amendments’ in the standard contract.

(PX 461.)

Each of the plaintiffs here entered a Standard Contract with DOE. 14 (PX ICY, PX 1MY, PX 1YA.)

While the Standard Contract did not contain a rate or schedule for the acceptance of SNF and HLW either on an industry-wide basis or by specific utility, it did establish a process by which a schedule and quantities were to develop. This process, although started and abandoned several times, is summarized for background purposes. See Tenn. Valley Auth. v. United States, 69 Fed. Cl. 515, 521 (2006) (noting that “DOE effectively short-circuited this process by its failure to perform under [the] Standard Contract”).

Beginning in April of 1991, DOE was to issue industry-wide “acceptance priority rankings” (“APRs”) based on the date of discharge of fuel from the reactor — oldest fuel first (“OFF”). 15 “The oldest fuel or waste will have the highest priority for acceptance, except as provided in paragraphs B and D of Article V (DOE approved-delivery commitment quantities adjusted by plus or minus 20 percent and with up to two month delivery adjustments) and paragraph B.3 of Article VI of this contract (right to reject for improper description).” 10 C.F.R. § 961.11 , Art. IV(B)(5)(a) (parentheticals added). “[APR] is, simply speaking, a ranking from earliest to latest of all discharges of commercial spent fuel from utilities and some other non-utility contract holders.” (Tr. 3921 (Pol-log) (“It ranks basically starting with the earliest of first discharge coming first and the last discharge at the end of the queue.”).) The age information came from the RW-859 data forms submitted to DOE periodically by the utilities. 16 “The APR will be used in conjunction with waste acceptance rates to be published in the 1991 Annual Capacity Report (‘ACR’) as the basis for purchasers to *259 submit delivery commitment schedules (‘DCS’) beginning January 1992 for the department’s approval. In turn, purchasers will have the opportunity to exchange approved DCSs, also subject to departmental approval.” (PX 629 at HQR0011537.) “Delivery Commitment” identified “all SNF and/or HLW the Purchaser wished to deliver to DOE.” 17 10 C.F.R. ¶ 961.11 at Art. V(B)(1). Also, the Purchaser could adjust the quantities committed by plus or minus 20 percent and the delivery schedule by two months until the submission of the “final delivery schedule.” Id. at Art. V(B)(2).

Adopting in part the reasoning of Commonwealth Edison Co. v. United States, 56 Fed.Cl. 652 665-66 (2003), this court declined to find these provisions created a binding mechanism that limited the amount of SNF DOE was contractually required to accept. Order of June 26, 2003. See also Yankee Atomic Elec. Co., 2004 WL 1535686 , at *1 (Fed.C1.2004); System Fuels, Inc. v. United States, 66 Fed.Cl. 722, 730-32 (2005); Entergy Nuclear Generation Co. v. United States, 64 Fed.Cl. 336 , 343 n. 8 (2005); Sacramento Mun. Util. Dish v. United States, 63 Fed.Cl. 495, 503-05 (2005).

If the aggregate requests for acceptance exceeded the annual capacity of the disposal facility, acceptance would generally be based on the age of the fuel — “OFF”:

1. Acceptance Priority Ranking. Delivery commitment schedules for SNF and/or HLW may require the disposal or [sic] more material than the annual capacity of the DOE disposal facility (or facilities) can accommodate. The following acceptance priority ranking will be utilized:

(a) Except as may be provided for in paragraph (b) below and Article V.D. of this contract, acceptance priority shall be based upon the age of the SNF and/or HLW as calculated from the date of discharge of such materials from the civilian nuclear power reactor. DOE will first accept from Purchaser the oldest SNF and/or HLW for disposal in the DOE facility, except as otherwise provided for in paragraphs B and D of Article Y.

10 C.F.R. § 961.11 at Art. VI(B)(1)(a) (emphasis supplied).

The referenced paragraph (b) provides that “[notwithstanding the age of the SNF and/or HLW, priority may be accorded any SNF and/or HLW removed from a civilian nuclear power reactor that has reached the end of its useful life or has been shut down permanently for whatever reason.” Id. at Art. VI(B)(1)(b). This is referred to as the “priority for shut down reactors.” Article V(D) allows DOE to accept emergency deliveries. Article V(B) establishes a process for a utility to submit the amount of waste it wished to deliver to DOE.

Background Corporate Facts

Maine Yankee, an electric utility company incorporated in Maine, commenced commercial operation of its nuclear power plant, its only electricity generating facility, located near Wiseasset, Maine, in December 1972. (MY PFF 5-7 and Def.’s Resp.) Maine Yankee last generated electricity at its nuclear power plant in December 1996 and decided in August 1997 to permanently cease operation of its plant. (MY PFF 14,16 and Def.’s Resp.)

Connecticut Yankee is an electric utility company incorporated in Connecticut. Its stock is owned by nine utilities. Its only electricity generating facility, a nuclear power plant located in Haddam, Connecticut, commenced operations in January 1968. The 550-acre plant is now permanently shut down. (CY PFF 5-7 and Def.’s Resp.)

Yankee Atomic is an electric utility company incorporated in Massachusetts. Its only electricity generating facility, a nuclear power plant located in Rowe, Massachusetts, commenced operations in early 1960 and is now permanently shut down. The Yankee *260 Atomic plant last generated electricity in late 1991. (YA PFF 17-18 and Def.’s Resp.)

Witnesses

The court benefitted from witness testimony, including several venerable pioneers in the nuclear industry, government regulators prior to and at the inception of the NWPA, and those who subsequently developed the spent nuclear fuel program(s). The following persons testified at the trial of this case: Edward Abbott; John Wesley Bartlett; Thomas W. Bennet, Jr.; Ken Blair; Patrice Bubar; John Buchheit; Dan M. Collier; Daniel R. Fischel; Frank Graves; Rudy Grube; Kenneth J. Heider; Daivd Huizenga; R. Larry Johnson; Robert Jordan; Andrew Kadak; Kathleen Jewel-Kelleher; Christopher Kouts; Michael James Meisner; Russell Mellor; Loring Mills; Ronald Milner; Robert L. Morgan; Charles W. Pennington; Thomas E. Pollog; Frances X. Quinn; Benard C. Rusche; Thomas Smith; Todd Daniel Smith; Ivan Stuart; Michael Eric Thomas; Scott Vance; George D. Whittier; Kenneth Tod Wise; and David Zabransky.

Liability for breach of contract

Breach of contract has been established. Maine Yankee, 225 F.3d 1336, 1343 (Fed.Cir.2000), aff'g Yankee Atomic Electric Co. v. United States, 42 Fed.Cl. 223 (1998) (DOE’s failure to begin disposal services by January 31, 1998 comprises a partial breach of Article II of the Standard Contract); Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed.Cir.1995) (law of the case doctrine bars trial courts from re-litigating issues decided by the appellate court). Ind. Mich., 422 F.3d 1369, 1372-73 (Fed.Cir.2005) (noting DOE’s liability for breach of contract).

These cases were tried on a comparison of the real “breach world” to the hypothetical nonbreach world. The court was asked to find and apply an SNF acceptance rate; determine whether or not Greater-Than-Class-C radioactive (“GTCC”) waste and failed fuel 18 would have been accepted by DOE; decide if the containers selected, purchased and loaded to store SNF would have been received by DOE for emplacement in a not-as-yet licensed Yucca Mountain repository; determine how and to what extent utilities would have exchanged not-as-yet issued allocations; divine how and to what extent DOE would have granted priority to shut down reactors; and consider other imponderables. These determinations would be factored into the equation to determine what incremental costs the utilities had (and would have in the future through 2010) in comparison to what would have been spent in the mythical nonbreach world. Indiana Michigan altered the landscape considerably by parsing utility claims into actual expenditures and framing the inquiry as one of mitigation.

Damages for mitigation costs incurred

When did right or obligation to mitigate begin?

Plaintiffs seek to recover costs they incurred in mitigating the impact of DOE’s impending delay and partial breach(es). That mitigatory measures were required is “beyond debate.” Ind. Mich., 422 F.3d at 1375 . The utilities had, at minimum, a good idea that the deadline of January 31, 1998 would not be met and were required to respond appropriately. “Should plaintiffs have waited until [January] 31, 1998 and then decided what to do with their nuclear waste? The court thinks not.” See Yankee Atomic, 2004 WL 1535688 at *6; Tenn. Valley Auth. v. United States, 60 Fed.Cl. 665, 674 (2004) (concluding the utility was “justified, indeed obligated, to take steps to minimize its losses in light of DOE’s imminent non-performance.”). “Once party has reason to know that performance by the other party will not be forthcoming, he is expected to take such affirmative steps as are appropriate in the circumstances to avoid loss by making substitute arrangements or otherwise.” Restatement (Second) Contract § 350 cmt. b.

May 25, 1994 is the date of DOE’s announcement that it would not begin perform *261 anee under the Standard Contract until 2010 because its planned storage repository would not be ready until then. Notice of Inquiry, Office of Civilian Radioactive Waste Management Waste Acceptance Issues, 59 Fed.Reg. 27,007-02, 27,009 (May 25, 1994). One year later, DOE asserted it had neither a contractual or statutory obligation to accept SNF or HLW, absent a repository or interim storage facility. Final Interpretation of Nuclear Waste Acceptance, 60 Fed.Reg. 21,793-02 (May 3, 1995). The Federal Circuit in Indiana Michigan characterized DOE’s May 25, 1994 announcement as “unequivocal,” and as a result, “[i]t is beyond debate that because the government unequivocally announced in 1994 that it would not meet its contractual obligations beginning in 1998, the utilities were in fact obligated to take mitigatory steps.” Ind. Mich., 422 F.3d at 1375 (emphases supplied).

Defendant asserts Connecticut Yankee’s and Maine Yankee’s decisions to reraek (and certain costs incurred) before May 25, 1994 were too early to be mitigation. (Def.’s Br. Concerning the Effect of Indiana Michigan, pp. 8-9.) Plaintiffs respond that the Federal Circuit determined that May 25, 1994 was the last possible date that the right (or obligation) 19 to mitigate arose. Indiana Michigan’s citation to the 1994 DOE announcement was a benchmark of when there was no question the mitigation duty or right commenced — the latest, not the earliest date. An earlier date for a particular utility was not foreclosed, but rather dependent upon circumstances known at that time. “Mitigation is appropriate where a reasonable person, in light of the known facts and circumstances, would have taken steps to avoid damage.” Ind. Mich., 422 F.3d at 1375 (citing Robinson v. U.S., 305 F.3d 1330, 1334 (Fed.Cir.2002)) (citing Restatement (Second) of Contracts § 350 cmt. b.). See also First Heights Bank, FSB v. United States, 422 F.3d 1311,1316 (Fed.Cir.2005) (constraining mitigation by what is fair and reasonable under the circumstances) (citing Home Sav. of America v. U.S., 399 F.3d 1341, 1353 (Fed.Cir.2005)). Reasonableness, in light of particular facts and circumstances, is plaintiff-specific. The 1994 date is the latest date when mitigatory obligations arose — whether that obligation or right ripened earlier is dependent on the facts and circumstances of each case and will be examined in appropriate circumstances. With DOE’s May 25,1994 statement, there was no question — it was “beyond debate” — that the obligation to mitigate arose. That it could be debated prior thereto was neither raised nor resolved.

To avoid issues concerning the possible application of the statute of limitations, 28 U.S.C. § 2501 , mitigation expenses that predate the complaint by six-years may be considered. But see Franconia Assocs. v. United States, 536 U.S. 129, 144 , 122 S.Ct. 1993 , 153 L.Ed.2d 132 (2002). Yankee Atomic’s Complaint was filed Feb. 18, 1998; Connecticut Yankee’s Complaint was filed March 4, 1998; Maine Yankee’s Complaint was filed June 2, 1998.

When does it end?

What is the date of the “claim?”

At trial, plaintiffs presented damage claims that included, in addition to past expenses, future damages out to 2012 (2011 for Maine Yankee). These damage models were complex and evolved pursuant to the court’s pretrial procedure designed to vent accounting issues and limit evidentiary issues. Yankee Atomic , No. 98-126C (November 4, 1998) (Pre-trial Order). Following the Federal Circuit’s decision in Indiana Michigan, supplemental briefing was ordered.

The parties’ view of “past” or “incurred” damages in post-Indiana Michigan briefing and argument were divergent. Defendant would limit damages to those incurred (i.e., paid) as of the date of the filing of the respective complaints in 1998, relying on Indiana Michigan, wherein the Federal Circuit stated that “[b]ecause [the nuclear utility’s] claim is premised upon the government’s partial breach, its damages were limited to those costs incurred prior to the date of its suit.” 422 F.3d at 1376-77 (emphasis added). Plaintiffs urge expanding the definition of “past” to encompass subsequent expenses — at least to the date of trial.

*262 According to plaintiffs, until recently, amending or supplementing their complaints would be an unnecessary formality. Defendant disagreed, characterizing an amended or supplemental complaint as jurisdictional prerequisite to consideration of post-complaint incurred damages. (Def.’s Resp. to Pis.’ Supp. Post-Trial Br. Addressing Impact of Indiana Michigan, filed January 5, 2006 at 2.)

Discovery, trial and original post-trial briefing encompassed damages through 2011 (2012 for Maine Yankee) including actual-incurred expenses that post-date the filings of the complaints here. Defendant has not alleged prejudice as to consideration of incurred costs. “[T]he Yankees provided actual cost information to the Government against which discovery was taken, and an audit was performed through 2001 (for Yankee Atomic and Connecticut Yankee) and through 2002 (for Maine Yankee). Actual cost information through these years likewise was provided as evidence to the Court at trial.” (Def.’s Resp. to Pis.’ Suppl. Post-Trial Br. Addressing Impact of Indiana Michigan, filed Jan. 5, 2006 at 8, citing Tr. 2982, 3247-48, 3254, 3259.)

At post-Indiana Michigan oral argument, counsel for the defendant admitted that with an amended or supplemental pleading, incurred costs presented at trial would be properly before the court. ‘Tour Honor, if the Plaintiffs filed a motion for leave to add that to this case through an appropriate amended or supplemental complaint, there would be no reason to relitigate those costs that we have already litigated here, so we would not have a problem doing that so long as we’re not getting into the cost-estimate years.” (Post Ind. Mich. Oral Argument Tr. 42.) Defendant suggested, albeit in the alternative and before the Federal Circuit’s decision in Indiana Michigan, that damages be limited to those through the date of trial. (See Def.’s Initial Post-Trial Br. at 71 n.22.)

In other pending SNF cases, defendant has not objected to amended complaints to cover damages actually incurred after the filing of the original complaint, providing that there was sufficient time for discovery and examination prior to trial.

The Government has been consistent in its interpretation of the Indiana Michigan decision in the other spent nuclear fuel cases pending before the Court. In Systems Fuels, Inc. v. United States, No. 03-2624C, the Government has maintained that trial in that case should consider damages incurred prior to the date that Systems Fuels filed its complaint in this Court, November 2003. In Southern Nuclear Operating Co. et al. v. United States, No. 98-614C, the Government agreed that, if Southern Nuclear filed an amendment to its complaint and consolidated that amended complaint with its original complaint in October 2005, that the damages to be considered in the trial that began in October 2005 could include damages incurred through December 31, 2004, because the Government had an opportunity to examine the basis for these claimed damages during discovery in that case.... Finally, in Pacific Gas and Electric Co. v. United States, No. 04-0074C ... the Government simply explained that it may oppose, and the Court may deny, a motion to amend the complaint if the plaintiff seeks to amend its complaint too close to the date scheduled for trial because of the prejudice to the Government from such an amendment. If the complaint is amended too close to the date of trial, the Government may not have sufficient time to properly examine the damages claimed and the support for those damages and would object to the amendment on these grounds.

Def.’s Resp. to Pls.’ Mot. for Leave to File its Am. and Supp. Compl. filed January 19, 2006 in Florida Power and Light Co. v. United States, No. 98-483C (Fed.Cl.) at 7-8.

We do not oppose [plaintiffs] motion for leave to amend and supplement its complaint or [plaintiffs] proposal that any trial on damages, when scheduled, include consideration of damages allegedly incurred by [plaintiff] through December 31, 2005. However, the leave requested should be conditioned on allowing the Government an enlargement of the presently-scheduled discovery deadline ... to allow for an appropriate investigation of the claimed damages.

*263 Defs.’ Resp. to Pls.’ Motion for Leave to File its Am. and Suppl. Compl. filed March 10, 2006 in Wisc. Elec. Power Co. v. United States, No. 00-697C (Fed.Cl.) at 1.

“The Government has never suggested in the spent nuclear fuel cases that a plaintiff cannot seek leave to file a supplemental complaint pursuant to Rule 15(d).” Resp. by Def.-Appellee, the United States, to Pl.-Appellant’s Pet. for Panel Reh’g, at 12, filed Nov. 10, 2005 in Ind. Mich. Power Co. v. United States, No. 04-5122 (Fed.Cir.). “The government has never opposed the filing of supplemental or amended complaints when it doesn’t prejudice the government.” Yankee Atomic’s Reply on its Mot. to Amend Compl., No. 98-126C (filed April 17, 2006), Exh. 1 (Tr. in System Fuels, Inc. v. United States., No. 03-2623C, 12:7-9, Mar. 14, 2006) (gov’t counsel). See also Tenn. Valley Auth. v. United States, 69 Fed.Cl. 515, 523-24 (2006) (“[U]nder [the Rules of the Court of Federal Claims (“RCFC”)] 15(a), (b) and (d), ... TVA has sought and pursued an amended and supplemental complaint alleging damages through [cut-off date of damages set prior to trial and before discovery was concluded].”); Pacific Gas and Elec. v. United States, 70 Fed.Cl. 758, 764-65 (2006) (similar).

On May 6, 2006, the court granted in part plaintiffs’ Motion to Amend Complaint, filed February 27, 2006. Plaintiffs’ Motion proposed that, pursuant to RCFC 54(b), on the basis of trial proceedings to date, a partial final judgment be entered for incurred damages with subsequent partial judgments to issue thereafter as recoverable incurred costs are awarded. Adopting the reasoning of Pacific Gas & Electric Co. v. United States, 70 Fed.Cl. 758 (2006), pursuant to RCFC 15(a), (b) and (d), the Complaints were deemed amended and supplemented to encompass trial evidence in the record and claims for costs incurred by Yankee Atomic and Connecticut Yankee through 2001 and costs incurred by Maine Yankee through 2002. Damage claims beyond these dates were dismissed, without prejudice to their timely assertion in a subsequent action(s). 20

When is past not past?

Inquiry does not end, however. The parties quarrel over the definition of incurred or past expenses. At trial (and in the reports of plaintiffs’ economic expert Dr. Wise), damages claimed through 2002 were labeled “past,” and 2003 and beyond, “future.” When Dr. Wise’s reports were submitted in March of 2003, 2002 was indeed “past,” thus his use of the word “past” referred to the date of his analysis. In reality, costs after 2001 for Yankee Atomic and Connecticut Yankee (after 2002 for Maine Yankee) were estimates. Accordingly, only those costs incurred (paid) through 2001 for Yankee Atomic and Connecticut Yankee, and through 2002 for Maine Yankee, which were subject to the government’s verification through the court’s pre-trial audit process in this case, will be considered in this action. 21

Standards for recoverability of incurred mitigation costs

There exist elements of proof that must be met to qualify for a recovery of incurred mitigation expenditures. “The presence of a duty to mitigate does not perforce make the pre-breach costs incurred by Indiana Michigan to store its SNF recompensable; [Indiana Michigan] must prove foreseeability, causation, and reasonableness.” Plaintiffs must establish that “(1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; *264 and (3) the damages are shown with reasonable certainty.” Ind. Mich., 422 F.3d at 1373 (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed.Cir.2002)).

Mitigation efforts must be reasonable. The Federal Circuit in Indiana Michigan confirmed the application of this bedrock principle in ascertaining pre-breach damages for DOE’s partial breach:

[W]e see no reason why efforts to avoid damages in contemplation of a partial breach should not ... be recoverable. Section 350, comment b of the Restatement of Contracts advises that “once a party has reason to know that performance by the other party will not be forthcoming, he is expected to take such affirmative steps as are appropriate in the circumstances to avoid loss by making substitute arrangements or otherwise.” Indiana Michigan is “not precluded from recovery to the extent that it has made reasonable but unsuccessful efforts to avoid loss.”

422 F.3d at 1375 (citing Restatement (Second) of Contracts § 350(2)). “[Mitigation damages are available for pre-breach costs should the obligee elect to treat the obligor’s breach as partial, while pre-breach damages for anticipatory breach are available should a party elect to treat the obligor’s breach as total.” Id.

“Mitigation is appropriate where a reasonable person, in light of the known facts and circumstances, would have taken steps to avoid damage.” 422 F.3d at 1375 (citing Robinson, 305 F.3d at 1333 (citing Restatement (Second) of Contracts § 350 cmt. b 22 )). “[W]hen mitigating damages from a breach, a party ‘must only make those efforts that are fair and reasonable under the circumstances.’ ” Home Savings of America v. United States, 399 F.3d at 1353 (quoting Robinson, 305 F.3d at 1333 ); see also 11 Corbin on Contracts § 57.11, at 311 (2005 ed.) (“The doctrine of avoidable consequences merely requires reasonable efforts to mitigate damages.”); 3 Dobbs: Law of Remedies § 12.6(1), at 127 (2d ed. 1993) (“[T]he damage recovery is reduced to the extent that the plaintiff could reasonably have avoided damages he claims and is otherwise entitled to.”).

Defendant has the burden of showing that plaintiffs’ mitigation efforts were unreasonable. Old Stone Corp. v. United States, 450 F.3d 1360 (Fed.Cir.2006) (government did not meet burden to establish actual expenditures were not reasonable); Tenn. Valley Auth. v. United States, 69 Fed.Cl. 515, 523 (2006) (citing Restatement (Second) of Contracts § 350(2); First Heights Bank, FSB v. United States, 422 F.3d 1311, 1316-17 (Fed.Cir.2005); Long Island Savs. Bank, FSB v. United States, 67 Fed.Cl. 616, 642 (2005)).

Accordingly, foreseeable and reasonable costs incurred prior to, but substantially caused by, DOE’s announced partial breach(es) are recoverable. This court previously recognized the recoverability of prepartial breach mitigation expenses — that is expenses incurred prior to January 31, 1998. Yankee Atomic Elec. Co., 2004 WL 1535688 at *6-7 (Fed.Cl. June 28, 2004); Order of August 29, 2003 at 3 (“[T]he issue with respect to mitigation of damages is grounded in a determination as to reasonable commercial judgment on the part of plaintiff.”) (citing N. Helex Co. v. United States, 207 Ct.Cl. 862, 883 , 524 F.2d 707, 718 (1975)).

Damages categories

Plaintiffs’ trial evidence of damages fell into three cost categories: wet-pool-related, Independent Spent Fuel Storage Installation (“ISFSI”) construction (dry storage) and ISFSI operations. Following the limitations imposed as a result of the Indiana Michigan decision precluding future damages, because no ISFSI operation costs have been “incurred” during the time period covered by *265 this litigation, no damages in that category-are relevant at this time.

Upon due consideration, the court concludes that, with some exceptions, the plaintiffs’ mitigation expenditures here meet the standards of Indiana Michigan.

Foreseeability

Mitigation damages must have been “reasonably foreseeable by the breaching party at the time of contracting.” 23 Ind. Mich., 422 F.3d at 1373. That plaintiffs would incur storage expenses of the nature and magnitude sought here was reasonably foreseeable. Yankee Atomic, 2004 WL 1535688 , at *7 (June 28, 2004). “ ‘[T]he intent of the NWPA and the parties to the Standard Contract was to avoid the construction by utilities of additional at-reactor storage after January 31, 1998.’ DOE’s failure to perform under the Standard Contract thus has led to the very thing the NWPA and the Standard Contract were designed to forestall., ie., the construction of dry storage facilities for spent nuclear fuel at nuclear power electricity generating plants throughout the United States.” Tenn. Valley Auth., 60 Fed.Cl. at 674 n. 10, citing Commonwealth Edison, 56 Fed.Cl. at 667 .

Regulators were aware that utilities faced enormous storage costs. DOE planning documents cited avoidance of these costs as a program goal. Whether aspirational goals rather than contractual requirements, the court nevertheless relies on these statements for foreseeability as well as what would have been reasonable or unreasonable performance by DOE, discussed infra. See generally Fed. Group, Inc. v. United States, 67 Fed.Cl. 87, 103-04 (2005).

The September 13, 1983 Draft Mission Plan 24 summarized DOE’s prior planning meetings and decisions and recited DOE’s planned “acceptance rate during the first five years such that no utility would have to build additional storage facilities after 1998.” (PX 633 at PNL-173-1283). The absence of a repository would not delay the acceptance of SNF; the acceptance rate after five years would equal the annual industry-wide rate discharge of SNF; if necessary, utilities would purchase rights in the shipping queue; storage could be at a geological repository, “buffer storage,” and/or a monitored retrievable storage facility (“MRS”) and DOE could take title to the SNF, place it in dry storage casks and pay a rental fee to the utility for on-site storage. (Id., at PNL-173-1283-84.) Even in 1983, regulators noted the “current best schedule estimate of first repository operation is 2002, four years later than the initial fuel acceptance date.” (PX 633 at PNL-173-1285.)

The annual Waste Acceptance Schedule in the December 20, 1983 Draft Mission Plan was 1800 MTUs for the first five years starting in 1998, then 3000 MTUs. (PX 636 at CTR-042-1072.) “Waste accepted during 1998 through 2002 will come preferentially from those reactors that would otherwise have insufficient on-site storage. The increase in the backlog during these years can be accommodated by limiting the amount of waste accepted from reactors with sufficient storage.” (Id. n. 2). These matters were contemplated by DOE at the time of the signing of the Standard Contract.

An OCRWM informational meeting sponsored by the DOE on December 12-15,1983, subsequently published and distributed in February of 1984, included a “Program Overview” by Robert Morgan, Acting Director. Given close in time to the signing of the Standard Contract, Director Morgan’s statements have substantial relevance. Director Morgan explained that:

*266 [t]he basic strategy ... is that beginning in 1998, utilities will not have to provide any additional storage facilities on site. During the first year of operation of the repository in 1998, we should be receiving fuel at a rate so that no utility would have to add any further storage facilities either on site or at another location. After the initial operation of the repository through the first few years, we would anticipate that the weight [sic (probably “rate”)] of acceptance of fuel should be the rate of discharge from the reactors that are in operation at the time so, by the year 2000 or 2001, we should be accepting in the repository the amount of fuel as being discharged from reactors.

(PX 678 at SN069599-600.)

Richard Lawrence, Acting Director of the OCRWM, in his February 22, 1984 Statement to the House Subcommittee on Energy Conservation and Power, declared that by meeting the objective of the NWPA and with an appropriate waste acceptance schedule “this will initially preclude the need for additional at-reactor storage by nuclear utilities after January 31, 1998.... ” (PX 378, PNL173-0228.)

Program objectives of the NWPA in a March 28, 1984 Draft Mission Plan included DOE’s acceptance of waste at reactor sites so that utilities would not have to build additional storage capacity beyond 1998 if the repository was delayed. (PX 642 at 1-2.) There was early awareness that increasing storage shortages at utilities would require the use of new technologies not yet fully developed. (Id., 3-D-2.)

A March 30, 1984 internal Memorandum from Michael J. Lawrence, Acting Director of OCRWM seeking comments on Draft Civilian Radioactive Waste Management Program stated that acceptance would be at a rate “such that no utility will have to provide additional storage capacity after January 31, 1998.” (PX 643 at 2-1.) “Waste accepted during 1998 through 2002 will come preferentially from those reactors that would otherwise have insufficient on-site storage. The increase in the backlog during these years can be accommodated by limiting the amount of waste accepted from reactors with sufficient storage through brokering arrangements.” (Id. at Table II — 1.) Exchanges, or “brokering arrangements” after 1998 were contemplated. “[A]fter 1998, individual utilities who actually realize this need (for additional on-site storage) will arrange for the right to ship spent fuel to the Department from a utility who is next in the queue in shipment allocation (subject to prior approval by the Department based on submittal of a request no less than six months prior to the scheduled delivery date). The use of such brokering arrangements should prevent the need for any utility to expand on-site storage and minimize transhipments.” (Id. at 2-4.) Thereafter, the rate would increase “until, beginning with operation of the second repository, it is equal to or greater than the actual discharge rate of spent fuel each year.” (Id. at 2-1.) Annual discharge rates taken from government records ranged between 2700 and 2900 in the years from 1998 to 2004. (Id. at Table II-1.)

To eliminate the need for additional at-reactor storage after January 31, 1998, the initial waste acceptance level would have to be more than 2800 MTUs. On July 23, 1984, Mr. Lawrence, then as Manager of DOE Richland Operations Office wrote to Mr. Rusche, Director OCRWM that seventeen years of additional at-reactor cost after 1997 would be about one billion dollars in 1983 estimated costs, “assuming storage casks are utilized,” a concession to the foreseeability of costs in the magnitude asserted. (PX 647 at 1.) And, “[i]f title to the fuel passes to the DOE on January 31, 1998, as implied in the [Standard Contract], the financial responsibility for this post>-1997 storage could rest with DOE. This cost has not yet been considered in the Nuclear Waste Fund Fee Adequacy Analysis.” (Id. at 2.) Additional comments were that, the minimum acceptance rate, based on the NWPA should be annual generation rate, there noted as being consistent with the goal of avoiding additional storage after 1998, the initial rate would be 2800 MTUs per year increased to 3,500 per year in six years. However, as a practical matter, the initial rate would probably be 400 MTUs. (Id. at 3.) Two thousand MTUs would be required initially if acceptance was selective, *267 given only to those facing loss of full core reserve. DOE’s liability for failure to meet contractual commitments was estimated at one billion dollars. Transportable storage casks were predicted to be available and licensable in 1986-1987 for shipment in 1998. (Id. at 2.) This is a mark-up of the 1984 draft which provided in 1984 that transportable storage casks may be feasible. (PX 647 at 3-C-5.)

Trial record testimony was that the intent not only of the NWPA, but of the parties (including the government) at the time of contracting was to avoid the tremendous costs of additional on-site storage. (Tr. 3682 (Morgan); 6/28/04 Dep. Desig. 4/22/02 Barrett, at 55-56 and 59; 7/24/04 Dep. Desig. 5/10/02 Milner, at 73.)

Separate contracts for possible pre-1998 interim storage needs were contemplated under the once-proposed Federal Interim Storage contemplated by section 136(a)(1) NWPA, 42 U.S.C. § 10156 (a)(1), with fees on a sliding scale depending on the needs, but as high as $670 a kilogram — $670,000 per MTU. For purposes of illustrating the magnitude of costs contemplated at the time of contracting and in 1983 dollars, the interim storage costs for Yankee Atomic’s SNF would have been $84 million dollars. (DX 1 at SNO069675; 48 Fed.Reg. 54391-02 (December 2,1983).)

Accordingly, the court concludes that absent DOE performance the need to spend substantial sums for additional at-reaetor storage was reasonably foreseeable at the time of contracting.

Substantial causal factor and commercial reasonableness

Defendant’s position is that (1) plaintiffs’ storage costs were not incremental to DOE’s delayed performance or partial breach, but were motivated in whole or in part by business concerns; (2) costs, or at least some of them, were not reasonable. As for the ISFSI decisions, defendant argues that “had DOE commenced performance in 1998 under an oldest-fuel-first queue — regardless of the acceptance rate applied to that queue — all three Yankees would have constructed dry storage facilities to reduce costs and to facilitate, among other things, their decommissioning efforts. Therefore, as with the post-1998 ISFSI costs, any costs incurred by Maine Yankee and Yankee Atomic pre-1998 for their ISFSIs would have been incurred even if DOE had performed its contractual obligations.” (Def.’s Supp. Br. on Ind. Mich. at 11.) Defendant makes the same argument about reracking and wet pool operational costs, asserting they would have been incurred even if DOE had performed; therefore, DOE’s partial breach could not have been a substantial causal factor.

Plaintiffs assert they need not establish precisely how much SNF DOE would have removed and when; rather their burden is to establish that DOE’s failure to commence performance was a substantial causal factor in their decisions to reraek and build dry storage. Plaintiffs also contend their decisions to implement dry storage and to rerack were “reasonable” mitigation responses, citing Chain Belt Co. v. United States, 127 Ct.Cl. 38 , 115 F.Supp. 701 (1953), and argue they would have been able to eliminate certain wet-pool operational expenses if DOE had commenced performance.

In Indiana Michigan, the Federal Circuit upheld the finding that Indiana Michigan’s decision to perform a full rather than a partial rerack (its asserted mitigation effort) “was purely a business judgment which it would have had to pursue irrespective of DOE’s partial breach.” 422 F.3d at 1376. See also Sacramento Municipal Util. Dist., 70 Fed.Cl. at 373 (finding certain costs were not substantially caused by DOE’s impending breach); Tenn. Valley Auth., 69 Fed.Cl. at 543 (awarding as mitigation damages, the costs of constructing and operating dry storage except for a $25,000 expense to study whether the multi-purpose canister could be used for transportation).

The court’s analysis in determining commercial reasonableness and substantial causation here is also informed by Hughes Communications Galaxy v. United States, 271 F.3d 1060, 1066-68 (Fed.Cir.2001). In Hughes, the Federal Circuit affirmed an award of the nonbreaching parties’ mitigation costs. By contract the National Aeronautics and Space Administration (“NASA”) agreed to use its “best efforts” to launch ten of *268 Hughes’ HS-393 satellites on future Space Shuttle missions no later than September 30, 1994. Before that date, following the tragic explosion of the Space Shuttle Challenger in January of 1986, shuttle operations were suspended. President Reagan announced there would be no more commercial satellite launches. In mitigation, Hughes launched ten satellites, three HS-393s and six HS-601s and one HS-376, on private expendable launch vehicles (“ELV”). The HS-393 was not well suited for ELV launch, so Hughes developed the HS-601 which was more powerful but had higher launch costs. The Federal Circuit upheld findings that Hughes would not have developed the HS-601 if the government had not breached and that the development of the HS-601 was a commercially reasonable substitute.

As the victim of the breach, Hughes was within its rights to obtain commercially reasonable substitute launch services even if the substitute services were not identical to those covered by the LSA. The Court of Federal Claims thus did not clearly err in holding that Hughes successfully covered by launching HS-601s on ELVs.

271 F.3d at 1067 .

Hughes sued for damages for its increased launch costs. The Court of Federal Claims modified damage theories presented by the experts, determining that using its “best efforts” in the nonbreach world, NASA would have launched only five of the maximum ten satellites. The court awarded the actual costs of the three ELV launches of the HS-601, took the average of those costs to determine what the “reasonable” cost of launch four and five would have been (in lieu of Hughes’ increased costs of, but added benefits from, launching the HS-601) and added that extrapolated sum to the mitigation cost award. Affirming, the Federal Circuit cited bedrock contract principles. Damages are to place the nonbreaching party in “ ‘as good a position as he or she would have been had the breaching party fully performed.’ ” 271 F.3d at 1066 (citing San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1562-63 (Fed.Cir.1997)). However, damages must have been foreseeable at the time of contracting, and “ ‘the natural and

proximate result of the breach.’ ” 271 F.3d at 1066 (citing Locke v. United States, 151 Ct.Cl. 262 , 283 F.2d 521, 526 (Ct.Cl.1960)). The Federal Circuit found no abuse of discretion in the Court of Federal Claims’ (1) determination that in the nonbreach world, using “best efforts,” NASA would have launched 5 of the 10 Hughes satellites; (2) calculation of the average cost of the three actual launches and application of that average to the remaining two in lieu of an expert’s calculation; or (3) selection of parameters for calculating cost escalation other than those used by an expert. 271 F.3d at 1068-70 .

Regardless of rate, these plaintiffs are faced with at least a twelve-year delay in commencement of performance. With due regard to the long lead time required for these mitigation decisions, the evidence establishes that the mitigating decisions and resulting expenditures were commercially reasonable, and substantially caused by DOE’s impending partial breach(es) and delay(s). S. Calif. Federal Savings & Loan Association v. United States, 422 F.3d 1319, 1337 (Fed.Cir.2005). In the nonbreach world, the evidence shows that Maine Yankee and Connecticut Yankee would not have reracked and plaintiffs would not have built expensive dry storage.

Reasonable certainty

Reasonable certainty applies in at least two aspects of these cases. First, the amount of otherwise appropriate incurred mitigation costs must be established with reasonable certainty. Here, voluminous supporting data from the utilities was exchanged in the informal pre-trial audit procedure that continued through trial, eliminating issues concerning whether a cost was really incurred and for what purpose. Secondly, in determining whether a decision was substantially caused by DOE’s delay, reasonable not absolute certainty suffices. “The defendant who has wrongfully broken a contract should not be permitted to reap advantage from his own wrong by insisting on proof which by reason of his breach is unobtainable.” Locke, 283 F.2d at 524 . “[W]hen damages are hard to estimate, the burden of imprecision does not fall on the innocent party.” LaSalle *269 Talman Bank v. U.S., 317 F.3d 1363, 1374 (Fed.Cir.2003). See S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1336 (Fed.Cir.2005) (applying the threshold evidentiary standard for a damage award of sufficient evidence “from which the court could ‘make a fair and reasonable approximation of the damages,’ ” citing Bluebonnet Sav. Bank v. United States, 266 F.3d 1348, 1357 (Fed.Cir.2001)). Also, mitigation decisions must be commercially reasonable. Hughes Commc’ns Galaxy, 271 F.3d at 1067 (“As the victim of the breach, Hughes was within its rights to obtain commercially reasonable substitute launch services.”).

Reasonableness of the costs incurred was generally satisfied here by regulatory venting and rate-setting by the Federal Energy Regulatory Commission (“FERC”). Accordingly, all three plaintiffs here are subject (and have been subject) to regulatory approval of the substantial capital expenditures for long-term storage of their SNF/HLW and other costs sought in this action. While an exposition on the nature and extent of rate-making is beyond the scope of this Opinion, it is sufficient to note generally that vigorous advocacy and opportunities for intervention, exposition and venting of the expenses occurred there. 25

To the extent that the court’s analysis depends in part on opinions expressed by plaintiffs’ expert Frank Graves, defendant’s objection to the lack of certainty in the exchange market on which he bases his analysis is discounted. As the court previously concluded pre-trial, in denying a motion in limine to preclude Graves’ testimony, defendant’s breach is established. That breach prevented the very market defendant assails as speculative because there is no “real” market data on exchanges of non-existent allocations for pick-ups that have not been scheduled. There is no market data because defendant’s breach thwarted this possibility. Yankee Atomic Co., 2004 WL 1535686 at *4.

What was done — a look at the breach world

Evidence and testimony, largely unchallenged, described the extensive time and expense incident to planning, designing, and constructing additions or modifications to these nuclear power plants to accommodate additional storage, wet or dry. Six to twelve months for ISFSI planning and procurement, six to fourteen months for license application, fifteen to twenty-two months for NRC review and another six to twelve months for construction preparation, appeared standard. (DX 160 at YDK042463.)

Utility awareness of delay and commencement of mitigation

All three plaintiffs made mitigation decisions before May of 1994, the date cited in Indiana Michigan by which it was beyond debate that the obligation to mitigate arose. Mindful that the mitigation decisions here were made by three separate plaintiffs, many, if not most, of the DOE’s statements, are cited by all three utilities. Therefore, the following discussion applies to all three.

Plaintiffs assert that shortly after signing their respective Standard Contracts in 1983, they became increasingly less confident, then apprehensive, then resigned to DOE’s delay and accordingly took reasonable mitigatory measures, some before May 25,1994.

As confirmed in company documents cited hereinafter and supported by witness testimony credited by the court, plaintiffs closely monitored DOE’s developments with respect to the SNF program as planning, budgeting, applications, regulatory approvals, and the like necessitated industry awareness. In the late 1980s and throughout the 1990s, DOE correspondence and announcements caused Yankee Atomic, Connecticut Yankee and Maine Yankee to reasonably anticipate that DOE would not commence acceptance of SNF by January 31, 1998 as required by the Standard Contract, and would not commence performance until 2010 at the earliest.

*270 Shortly after the NWPA was enacted and the Standard Contracts signed, DOE’s public statements raised concern in Congress and with nuclear utilities that the January 31, 1998 deadline was not going to be met. While defendant points out that many of these statements concern compliance with the NWPA, not the Standard Contract, as DOE’s obligations under the Act and the Standard Contracts are significantly co-extensive, plaintiffs’ growing anxiety (later confirmed) was justified.

DOE’s June 1987 Mission Plan Amendment stated acceptance at a permanent repository would not commence until 2003 and then only at a rate of 400 MTUs annually. (PX 99 at 6, 10, 61.) In DOE’s November 1989 “Reassessment” Report to Congress, that date slipped to 2010. (PX 101 at vii and 9-11; PX 99 at 61.) Tom Bennet joined Yankee Atomic in 1995 after nine years as a financial manager at Vermont Yankee. He was the Vice President and Chief Financial Officer of Yankee Atomic and Connecticut Yankee. As such, Mr. Bennet was responsible for all financial matters, including long-term cost estimates, FERC submissions and the damage calculations submitted in this matter. Mr. Bennet testified the 1989 OCRWM report to Congress telegraphed numerous problems with the repository program and “really did a thorough assessment of the project as being in trouble, In fact, itremared [sic] that the view at the time was that repository operations would be delayed until 2010. So 6 years into the contract, they were looking at a 12-year delay.” (Tr. 1718-19.)

In its November 1989 “Reassessment Report to Congress,” DOE predicted a 2010 repository commencement date. (PX 101 at vii, 9-1.)

DOE suggested in the 1987 Mission Plan and the 1989 “Reassessment” that the 1998 start date could be met by accepting SNF at a Monitored Retrievable Storage (“MRS”) facility. During 1985-1987, DOE was concerned about missing the 1998 commencement date and proposed to Congress a plan to utilize an MRS as an interim solution until the repository was operational. See Tenn. Valley Auth. v. United States, 69 Fed.Cl. 515,

520 (2006). Amendments to the NWPA in 1987 included provisions for an MRS subject to several conditions. See Nuclear Waste Policy Amendments Act of 1987, Publ. L. No. 100-203, §§ 5001-5065, 101 Stat. 1330 , 1330-227 to 1330-255 (1987) (codified in scattered sections of Title 42 of the United States Code, including 42 U.S.C. § 10168 .). First, assuming a location site was “negotiated” (and efforts of an MRS negotiator were not successful), an MRS could not be built until a permanent repository site had been selected and approved. 42 U.S.C. § 10168 (d)(1). Also, the total capacity of the MRS was limited to 10,000 MTUs until the permanent repository became operational. 42 U.S.C. § 10168 (d)(3). In its 1989 Reassessment, DOE estimated it would not receive construction authorization for a repository until 2004. (PX 101 at x (“the current linkages between the repository and the MRS program make it impossible for the DOE to accept waste at an MRS facility on a schedule that is independent from that of the repository.”), 12 (“If the current statutory linkages to the repository are maintained, an additional delay of 5 years would result, with startup estimated at 2007 for the basic MRS facility.”).)

As noted in Indiana Michigan, DOE made announcements in 1987 and 1989 “projecting delays in the scheduled January 1998 acceptance start date.” 422 F.3d at 1376.

DOE’s published ACRs for 1991 and 1992 assumed an operational MRS for ten years starting in 1998. The lowered acceptance rates in those ACRs reflected the MRS’s pre-repository 10,000 MTUs maximum capacity. The 1994 combined ACR and Annual Priority Ranking (“APR”) published in March, 1995 continued to show an acceptance rate based on the limited capacity of an MRS. (PX 63.)

David Zabransky at the time of trial was the Contracting Officer for the Standard Contract and previously served as the Contracting Officer’s technical representative from July of 1995 to 2002 (Tr. 4110-11.) Prior to that time he had been employed at Wisconsin Electric Power Company where he monitored DOE’s performance. Mr. Zabransky testified that in the 1992 time frame *271 “there was some uncertainty as to whether [DOE] would actually come and perform in 1998,” so storage plans did not assume DOE would timely perform. (Tr. 4156.)

DOE’s May 1994 Federal Register Notice stated that DOE would not be able to begin disposing of spent fuel in 1998 because a repository would not be operational until 2010 at the earliest. (PX 951, “Waste Acceptance Issues,” 59 Fed.Reg. 27,007, 27,008 (1994) (soliciting comments).) By that date, at the latest, nuclear utilities’ mitigation duty began. Ind. Mich., 422 F.3d at 1373; Hughes Commc’n Galaxy, 271 F.3d at 1064 ; Wisconsin Power & Light Co. v. Century Indem. Co., 130 F.3d 787 (7th Cir.1997) (disclaiming contractual duty is breach of contract even if time specified in contract for performance has not yet arrived). Following the comment period, in May of 1995, DOE issued its “Final Interpretation of Nuclear Waste Acceptance Issues” (PX 516; 60 Fed. Reg. 21,793 , 21,795 (1996), that its obligation to commence SNF acceptance by January 1998 was conditional upon either an operating repository or an interim storage facility under the NWPA.).

Following the May 1994 “Notice of Inquiry,” in June 1994, Yankee Atomic’s President, Dr. Kadak, wrote to Secretary of Energy Hazel O’Leary on April 20, 1994: “when does DOE expect to begin the acceptance process?” and “[w]hat is your best estimate of the shipping schedule when you begin accepting spent fuel?” (DX 218 at YDK007566-67.) The response by Ronald Milner (Associate Director for Storage and Transportation, Office of Civilian Radioactive Waste Management) on the Secretary’s behalf was:

It is the Department’s preliminary view that it has no statutory obligation under the Act to accept spent nuclear fuel beginning in 1998 in the absence of an operational repository or other facility constructed under the [NWPA], though such an expectation may have been created through implementation of the Standard Contract____ [T]he earliest possible date for acceptance of waste for disposal at a repository is 2010 ... The 1992 Annual Capacity Report represents the best current estimate of the rate at which [Yankee Atomic’s] spent nuclear fuel would be accepted ... assuming availability of an MRS ... [and] developing a meaningful waste acceptance schedule for the period beyond the initial ten years is not possible at this time.

(Id. at YDK007570-72.) Yankee Atomic was aware of and relied upon these representations in its planning. (Tr. 2342 (Bennet) (noting reliance on Kadak/Milner exchange in preparing Yankee Atomic’s 1995 FERC case).) (See also Tr. 2277-91 (Heider) (discussing DX 218).)

DOE’s May 1995 Federal Register statement that its obligation to commence SNF acceptance was conditional upon an operating repository or interim storage facility under the NWPA, had been previously articulated in communications to Yankee Atomic approving delivery dates in delivery commitment schedules “dependent upon the existence of an operational repository or interim storage facility____” (DX 30.18.) As a repository was then admittedly not going to commence operations in 1998, at some point DOE abandoned contingency planning for an MRS.

Rates and impact on causation

Early program documents not only confirmed the 1998 date for commencement of performance at a repository, but planned a robust rate of acceptance. DOE’s July 1983 report to Congress on the adequacy of fees under the Standard Contract assumed repository commencement in 1998 with a design capacity of 72,000 MTUs and receipt rate of 1800 MTUs for the first five years and 3000 annually thereafter. (PX 420 at PA-178250-01.) The July 1984 report used the same commencement date, design and receipt rate. (PX 421 at PA-177342). DOE’s 1983 Draft Mission Plan recited an annual acceptance rate of 1800 MTUs for five years starting in 1998 and 3000 MTUs thereafter. (PX 636); A December 1984 draft report assumed a repository design rate of 70,000 metric tons, retained the 1998 start date, but lowered the receipt rates to 400 MTUs for the first three years, 900 MTUs in year four, 1800 MTUs in year five, and 3000 MTUs thereafter. The February 1985 and March 1986 reports were *272 the same. (PX 415 at DER 003-0972; PX 545 at PNL-023-0473-74.)

The 1987 ACR warned utilities that an acceptance schedule was uncertain and that both a repository and an MRS was necessary in order to commence acceptance in 1998. 26 (DX 16.) Discussing priority for shut down reactors (one of several factors considered by the court herein), DOE stated that such priority was “possible” and “would result in a reordering of the Final Delivery Schedules (approved delivery commitments).” (Id., at HQR-001-2724.) “Illustrative” annual acceptance rates commencing in 1998 were 1200 MTUs for the first five years, 2000 MTUs in 2003, and 2650 MTUs in 2004 through 2007. (Id., at HQR-001-2717.) The June 1988 ACR also warned of a delay in the repository and cautioned that while an MRS was possible in the interim, its capacity was limited. 27 (DX 17.) “Illustrative” annual acceptance rates starting in 2003 and assuming an MRS facility would operate simultaneously were 1200 MTUs for 2003 and 2004; 2000 for 2005 and 2006; 2700 for 2007; and 3000 for 2008 through 2012, for a total acceptance of 24,100 MTUs. (Id. at HQR0012621.) The 1990 ACR contained “upper bounding” and “lower bounding” acceptance schedules. The upper bounds annual rate starting in 1998 was 1200, 1200, 2000, 2000, 2700 and then 3000 MTUs through 2007 for a total acceptance of 24,100 MTUs. The lower bounds annual rate starting in 1998 was 300, 400, 550, and then 875 MTUs through 2007 for a total acceptance of 7375 MTUs. (DX 18 at HQR-001-2499.) The upper bounding rates came from the 1998 Draft Mission Plan Amendment and the June 1988 ACR. The lower bounding rates assumed an MRS and the 10,000 MTUs limit prior to repository operation. The 1990 ACR also stated that it was “not contractually binding on either DOE or the Purchasers” and that it would be the last ACR. (DX 18 at HQR0012494; See also DX 130 at EDB0011518.)

Despite that statement of finality, in December of 1991 DOE issued another ACR. “Although the 1990 ACR indicated that it would be the last ACR published, DOE has elected to continue publication of the ACR after discussions with the Purchasers.” (DX 24 at HQR0012362.) The December Report again provided that “[a]s specified in the Standard Contract, the ACR is for planning purposes only and thus is not contractually binding on either DOE or the Purchasers.” (Id. at HQR0012362-63.) Projected annual acceptance rates starting in 1998, assuming Congressional action to ehminate restrictions on an MRS, were 400 in 1998, 600 in 1999 and then 900 MTUs annually, for a total acceptance through 2007 of 8200 MTUs. (Id. at HQR0012366.) Absent further Congres *273 sional action, “it is estimated that commencement of facility operations and initial acceptance of SNF by DOE could not start until at least 2007.” (Id. at HQR0012365.)

The 1992 ACR (DX 26), dated May 1993, stated that absent removal of the statutory limitations on an MRS, initial acceptance by DOE would not commence until 2007. (DX 26 at HQR0012323.) If the linkages were removed, nominal annual acceptance rates of 400 MTUs in 1998, 600 in 1999 and 900 in years 2000 through 2007 were given. (Id. at HQR0012324.) There was no ACR in 1993.

“Due to the uncertainty associated with the commencement of operations of the waste management system,” the 1994 consolidated APR and ACR as well as the 1995 combined APR and ACR dated September 1996 (which, like the others, was for planning purposes and was not contractually binding) abandoned calendar years of commencement in favor of ubiquitous years of operation with annual rates of 400 MTUs for ‘Year 1,” 600 MTUs for ‘Year 2,” and 900 MTUs thereafter. (PX 63; DX 27.)

There was testimony that the low rates in the 1991 ACR were an attempt to limit DOE’s liability for breach of contract, not because of statutory capacity limitations on an MRS because by then, that interim storage option was not realistic. Scott Vance was called as an impeachment witness by plaintiffs. He had been present for most of the more than 35 days of trial and during trial (and unsolicited), he informed one of plaintiffs attorneys that testimony of one of defendant’s witnesses concerning the 1991 ACR was not accurate. On that basis, and over defendant’s objections, Mr. Vance was called as an impeachment witness. Defendant asks that his testimony be stricken.

Mr. Vance testified he was employed as a nuclear regulatory specialist at the law firm of Shaw Pittman in Washington, D.C. 28 Mr. Vance has a bachelor of science degree in general engineering from Idaho State University and two master’s degrees from the Massachusetts Institute of Technology in nuclear engineering and in technology and policy. Mr. Vance testified he assisted in the preparation and editing, and provided input into the 1991 ACR while he was employed by Pacific National Laboratories (“PNL”). 29 PNL’s role was to support the Office of Waste Acceptance which had the task of dealing with contractually required documents. Mr. Vance testified he was aware of the annual acceptance rates in the 1991 ACR (DX 24 at HQR-001-2366), (400 in 1998, 600 in 1999 and 900 in years 2000 through 2007) and “[a]t least one of the foundations for that rate was DOE’s desire to limit their liability to purchasers from the standard contract.” (Tr. 7618-21.)

I was told at that time specifically from Alan Brownstein that the lower rate was going to be used. The decision had already been made. And the reason for that was that it was obvious at that point that @98 was not going to be met and that they desired to limit the liability to purchasers.

(Tr. 7622 (Vance).) See (Tr. 3995-97 (Pollog) (DOE stopped processing DCS submittals in late 1996/early 1997 and thought that might limit liability).) Defendant moved to strike Mr. Vance’s testimony because he was not disclosed pre-trial and his testimony was substantive rebuttal, not impeachment.

“[I]t is clear that ‘exclusion of critical testimony by unlisted witnesses is disfavored.’” Berroyer v. Hertz, 672 F.2d 334, 338 (3rd Cir.1982) (citation omitted.) Plaintiffs cite the wide discretion afforded the court in considering testimony regardless of whether a witness was disclosed on a witness list. The bona tides of the 1991 and 1995 ACRs has relevance as these documents do appear as pivotal evidence in the government’s arguments on rate in the non-breach world which in turn impacts directly on causation. Factors include (1) prejudice *274 or surprise; (2) the ability to overcome any prejudice or surprise; (3) any disruption of the trial by calling the unlisted witness; (4) bad faith or willfulness. Defendant does not dispute that Mr. Vance came to plaintiffs’ counsel of his own volution. Also, Mr. Brownstein, a DOE employee was deposed extensively, and could have been called to rebut Vance’s statement. While at trial defendant did request an opportunity to depose Mr. Vance, which the court denied, leaving open however, any objection to use of his testimony as substantive evidence. (Tr. 6472, 7624.)

Mr. Vance’s testimony was brief and not technical, consisting primarily of testimony concerning DOE’s reason for using lower rates. He was subject to extensive cross-examination. His testimony was similar to that of Mr. Zabransky, DOE’s Contracting Officer, who testified that among other reasons, “the Department was trying to minimize its obligations to utilities,” in using the low 900 MTU rate in the 1995 ACR. (Tr. 4166-67 (Zabransky).) Furthermore, the government could have, but did not seek any time or brief recess to refute Vance. Finally, given Mr. Zabransky’s testimony, the substance of Mr. Vance’s testimony should not have been a total surprise.

Defendant asserts that the decision to admit or reject the testimony depends on whether the witness is rebuttal or impeachment. It is true, plaintiffs argued for admission of Mr. Vance’s testimony on the grounds that he was an impeachment witness. Defendant points to plaintiffs’ counsel’s representation that Mr. Vance was an impeachment witness. (Tr. 6466 (plaintiffs’ counsel: “It’s impeachment”); Tr. 7618 (plaintiffs’ counsel: “Mr. Vance, since you’re called as an impeachment witness....”).) “ ‘Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explain, repel, counteract, or disprove evidence of the adverse party.’ ” Martinez v. Union Pac. R.R. Co., 82 F.3d 223, 227 (8th Cir.1996) (citing Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir.1992) and affirming the trial court’s exclusion of a previously undisclosed rebuttal witness). Plaintiffs’ counsel identified two issues upon which Mr. Vance would testify: (1) that Mr. Pollog who had testified about the 1991 ACR had very little to do with it; rather, Mr. Vance had the major drafting role; and (2) that “everybody” in the DOE knew that GTCC waste was “going to the repository” and he was instructed to minimize any written statement to that effect. (Tr. 6467-68.) And, Mr. Vance testified to neither. After Vance testified, plaintiffs’ counsel defended his impeachment characterization on the grounds that Vance’s testimony impeached Pollogg’s testimony as to the rationale for the 1991 rates and was thus impeachment by contradiction. (Tr. 7623-24.)

Impeachment witnesses are not subject to disclosure requirements. RCFC, App. A, VI(13)(b). For compelling reasons, an unlisted witness can be called but shall be subject to discovery. “Failure of a party to list a witness shall result in the exclusion of a witness’s testimony at trial absent agreement of the parties to the contrary or a showing of a compelling reason for the failure. Any witness whose identity has not been previously disclosed shall be subject to discovery.” Id.

There were compelling reasons for not listing Mr. Vance. His identity as a witness was not known to counsel until trial. His direct testimony was very limited, and cross-examination was more extensive. The court finds no substantial prejudice. In its exercise of its discretion, the court considers Mr. Vance’s testimony. See Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1122 (Fed.Cir.1996) (reviewing decision whether or not to allow witness testimony for abuse of discretion); Guise v. Department of Justice, 330 F.3d 1376, 1379 (Fed.Cir.2003) (noting substantial discretion of administrative law judge to allow or exclude witness testimony). However, even if Mr. Vance’s testimony were not considered, the court’s findings herein would not differ in that rates based on a proposed MRS which could exist only in conjunction with an approved repository lacked credibility.

Accordingly, it was reasonable for these three plaintiffs to believe that DOE would not commence performance by January 31, 1998, and to question the level of perform *275 anee that would evolve once it was commenced. Subjectively, their reasonable concern pre-dates the 1994 Federal Register pronouncement cited in Indiana Michigan.

Connecticut Yankee and Maine Yankee reracked their spent fuel pools. A substantial causal factor in their decisions to rerack was DOE’s partial breach(es). These at-reactor costs were reasonably foreseeable to DOE at the time of contracting, and decisions were commercially reasonable and the costs were shown with reasonable certainty.

As about one-third of the rods in the reactor core are replaced approximately every eighteen months to two years (“fuel cycles”). With each fuel cycle, spent fuel rods are discharged and stored in the wet pool. Accordingly, pool capacity was carefully monitored and the ever-decreasing amount of available space inventoried.

Connecticut Yankee seeks reraeking costs of $8,350,893. Maine Yankee seeks $10,069,018. (PX 2043a.l9; PX 2043a.22.) Yankee Atomic did not rerack in this relevant time frame.

Defendant argues that the decisions to rerack were not the result of DOE’s delay. It is asserted that both Connecticut Yankee and Maine Yankee expected to run out of wet pool space before 1998 and would have to rerack anyway. “[B]ecause they were expected to run out of storage space before DOE was to begin acceptance from utilities in 1998, any reraeking decisions were unrelated to DOE’s delay in accepting SNF.” (Def.’s Supp. Br. at 10 (citing Ind. Mich.).) Defendant also claims these expenditures were unnecessary in that both utilities permanently shut down their reactors before the end of their license period, and “[t]o the extent that they would have had sufficient wet pool space to continue operations until DOE was obligated to begin accepting their SNF, they could have waited to incur those reraeking costs to ensure that they would be necessary.” (Id.)

Connecticut Yankee and Maine Yankee counter that DOE’s partial breach(es) were a substantial causal factor in their decisions to rerack, that those decisions were commercially reasonable and that their costs were established with reasonable certainty.

Maine Yankee reraeking

Mindful of storage limitations and implementation lead time, from at least the mid-1980s, Maine Yankee monitored DOE’s preparation for commencement of performance under the Standard Contract and was well aware of significant delays. (Tr. 2861 (Whittier) (Maine Yankee “always considered that there would come a time where we would need to increase storage capacity unless DOE honored its contract obligations. So we always had ... a low-level effort monitoring ... DOE developments.”); Tr. 403 (Mills) (describing concerns raised by low acceptance rates in 1983 draft Mission Plan and by DOE’s failure to meet statutory deadline for issuing repository siting guidelines); Tr. 408-09 (Mills) (“great anxiety” caused by statements by Mr. Morgan at a December 1983 conference, which “did not satisfy our understanding earlier in the year when we signed the contract”); DX 1 at 11-12.)

Maine Yankee’s spent fuel pool (also referred to as a “pit”) comprised “a water filled, stainless steel-lined concrete structure approximating a cube with 40 foot sides and 6 feet of concrete on all sides except the top, which is open to the enclosed fuel building atmosphere.” (PX 1456MY at MPA022571.) Radiation levels prevent repairs or maintenance to the reactor core or to the fuel inside the core while the fuel is in the core, so fuel from the reactor core must be transferred to the pool. (MY PFF 111 and Def.’s Resp.) Accordingly, to allow for repairs or maintenance, Maine Yankee always maintained a full core reserve (“FCR”). There was always sufficient capacity in its pool to discharge all the fuel assemblies from the reactor core. (MY PFF ¶ 111 and Def.’s Resp.) While it was operating, Maine Yankee discharged all the assemblies from the reactor core into the pool to repair the thermal shield and also to inspect the reactor vessel. (MY PFF 114 and Def.’s Resp.)

While NRC prefers that a licensee maintain FCR and NRC in-service inspections performed every ten years require all assemblies from the reactor core be discharged into the spent fuel pool, maintenance of FCR *276 was not required. (MY PFF 113 and Def.’s Resp.) (“NRC did not require that we maintain full core offload capability, but they did state it as a preference. And Maine Yankee also believed that it was a prudent business decision____If you were to lose the ability to offload the core, and a need came up to offload the core for a maintenance reason, then the plant might not be able to operate.”) (Tr. 2856 (Whittier).)

Michael Thomas, Vice President and Chief Financial Officer, joined Maine Yankee in 1991 and is the formal contracting officer— the Standard Contract corporate contact. He testified that before joining Maine Yankee, he was aware of and monitored DOE’s performance under the Standard Contract. At the time he joined Maine Yankee in 1991, it was “understood ... that there was certainly risk that the [DOE] would not come beginning in 1998 and remove our fuel” and it “was very much in serious jeopardy, that the DOE would actually begin performing under the contract.” Operation of Maine Yankee’s reactor until 2008 was planned, although earlier shut down was always possible. The “primary concern was to make sure we had enough room for the spent fuel in the pool.” (Tr. 2734-36 (Thomas).)

In January 1993, Maine Yankee still did not expect DOE to perform in 1998. (Tr. 2866 (Whittier).) Starting in the late 1980s and early 1990s, faced with DOE’s impending nonperformance, Maine Yankee considered several options in detail — dry storage, off-site storage and fuel or pin consolidation. Pin consolidation (taking the fuel assembly apart, removing the individual fuel pins and placing them in a tighter cage or a cage with no array at all so that more fuel pins can fit in the pool) was rejected as too labor intensive, costly and dangerous (removing pins could potentially release radioactivity into the pool). (Tr. 2861-62.)

Maine Yankee submitted its application to the NRC on January 25, 1993 to rerack to increase the storage capacity of the wet pool from 1,417 to 2,019 assemblies. (PX 829.) The NRC approved. The design of the racks was finalized and the racks were fabricated in 1994. The physical installation of the racks was in December of 1996 when the reactor was shut down. (Tr. 6226-27 (Jordan); Tr. 2869-70, 2909-11 (Whittier).) At that time, Maine Yankee still intended to continue operations. (Tr. 2735-36 (Thomas); Tr. 2910 (Whittier) (Maine Yankee expected to continue plant operations); Tr. 6240 (Jordan) (when he was Maine Yankee’s project manager for reracking, he had no understanding that the plant was going to shut down in 1997).) Defendant does not dispute that Maine Yankee planned to operate until 2008 when its license would expire, until its decision to permanently cease operations in 1997. (Def.’s Resp. to MY PFF 109.) Maine Yankee’s reracking created an additional 576 spaces at a cost of $10.3 million.

Maine Yankee’s January 25, 1993 application to the NRC for this reracking is probative on causation. “The spent fuel storage pool with the existing racks will be unable to accommodate the fuel planned to be discharged after the 1999 refueling. The unavailability of a high-level waste repository and lack of assurance that the Federal. Government will take possession of the spent fuel by the date that the spent fuel pool is full necessitates the reracking of the pool.” (PX 829 at MOF035617); Tr. 2868, 2870-71 (Whittier) (“If we had believed that DOE was going to perform its contract obligations, we would not have performed the third reracking” because “additional storage ... capability beyond what we already had, assuming that DOE was going to perform, was not required,” but instead Maine Yankee would have used “the temporary rack ... that we were licensed to use [to] provide[ ] sufficient additional storage such that the full core could have been offloaded on a temporary basis, should it have been required.”); Tr. 6256-57 (Jordan) (stating that Maine Yankee pursued alternative storage options because “[w]e recognized at that time ... the probability of the successful transfer of fuel to the Department of Energy was low.”); Tr. 2866 (Whittier) (by January 1993, Maine Yankee “did not expect DOE to perform in @98”); Tr. 2870-74, 2904-06 (Whittier) (January 1993 and January 1996 fuel data projections confirm that only a temporary rack would have been needed.); Tr. 2899 (Whittier) (stating that the Maine Yankee Board of *277 Directors approved the decision for a third rerack in 1991-92); Tr. 6226 (Jordan) (the project was started in the 1992-93 time frame.)

Douglas Whittier, started working for Maine Yankee in approximately 1983. He has an MBA from the University of Miami and was as officer in the United States Navy with formal training in the Navy’s nuclear power program, assigned to a nuclear submarine. His civilian experience included a position as a start-up engineer for Consolidated Edison of New York at Indian Point nuclear plant and various nuclear engineering positions for Florida Power and Light including managing interface with the NRC. He was then with a private nuclear consulting firm. At Maine Yankee he was licensing section head, responsible for communicating with NRC, EPA, FEMA and state regulatory agencies. He was manager of nuclear engineering licensing in the 1990 time-frame (the licensing effort for the first rerack started in 1983) during which Maine Yankee went through a second reracking, the cost of which is not sought in this litigation but he was aware of it. In 1990 he became vice president of licensing and engineering. In 1997, he left Maine Yankee to become a consultant. (Tr. 2840-46.) Mr. Whittier testified that following the second reracking, either DOE would have to begin performance in 1998 or additional reracking was going to be necessary. (Tr. 2853.) He testified that growing uncertainty over DOE honoring its contractual commitments lead to the decision to perform the third rerack.

Q. And what was your understanding— what was Maine Yankee’s understanding, expectations, really, as to what DOE would do as far as picking up Maine Yankee’s spent fuel?

A. We were doubtful that DOE would be able to perform its obligations under the contract to begin taking possession of spent fuel in 1998.

Q. And how did this doubt, this uncertainty over DOE’s picking up Maine Yankee spent fuel on a timely basis influence Maine Yankee’s planning with respect to its storage of spent fuel?

A. What we decided to do is wait as long as possible before committing to any additional on-site storage capability or projects. And that had really a couple of benefits. It would defer expenditures. It would allow us to monitor changes in technology with respect to spent fuel storage. And, also, it would give DOE every opportunity to perform under their contractual obligations to pickup fuel in @98.

(Tr. 2853-54.)

Using a series of demonstratives, 30 Mr. Whittier illustrated that following the second reracking, the spent fuel pool had a 1,476 assembly capacity. The reactor core held 217 assemblies,121 assemblies could be stored in a temporary rack. He charted fuel cycles and remaining space.

Total assemblies discharged pool (cumulative) Remaining space in pool (FCR is 217)

Cycles 1-12 (from June 1974 to approximately February of 1992) 1,058 418

Cycle 13 (77 assemblies discharged July 1993) 1,135 341

Cycle 14 (81 assemblies discharged January 1995) 1,216 260

Cycle 15 (65 assemblies discharged May 1997) 1,281 195

(22 spaces needed)

Under this schedule, FCR would be lost at the end of Cycle 15 then projected for May of 1997. Defendant also argues that Maine Yankee periodically evaluated the potential loss of FCR and in 1992, 1993 and 1994 predicted the loss of FCR in 1996. (Tr. 5432-34 (Abbott); Abbott demonstrative, unnumbered 27; Tr. 2851-52.) This, defendant insists, establishes that Maine Yankee would lose FCR before DOE was required to commence performance, thus the third reracking *278 could not have been caused by DOE’s partial breach.

Maine Yankee counters that its decision to rerack was reasonably motivated, at least in substantial part, by concern that DOE was not going to timely commence performance. Some early predictions of loss of FCR by 1998 were overcome by technological innovations which allowed for more efficient “burning” of the reactor fuel, thus lengthening fuel cycles and extending the time when the pool would reach capacity. Smaller reload batches and higher burn-ups of spent fuel resulted in smaller discharges of spent fuel into the pool. Also, a plant shutdown for repair of steam generator tubes further delayed the need for additional slots. Any need for full-core reserve could have been met by the use of so-called “temporary” racks. (Tr. 6258-59 (Jordan).) A temporary rack for 30 assemblies could have handled the full core reserve deficit. The rack would not have been inserted into the pool unless and until it was actually needed so that the cask loading area would have been open. (Tr. 2874 (Jordan).) Mr. Whittier testified he took these numbers from two snapshots in time-one beginning in 1993 and another was the beginning of 1996 using actual Maine Yankee data with projections then being made for future reloads, both as to the timing and the size of those projections. (Tr. 2905-06.) Maine Yankee’s operating license allowed for the use of a temporary rack for up to 121 assemblies. The $115,000 cost of a 30-assembly temporary rack was deducted from Maine Yankee’s claim. Mr. Whittier estimated the cost by looking at actual costs of the third reracking, subtracted the cost of inserting the racks into the pool and then computed a per module cost and multiplied that number by 30. (Tr. 2875-76.) The government does not dispute the amount of this offset or that it was taken. (Def.’s Resp. to MY PFF 120.)

Robert Jordan, one of the government’s witnesses, was the project manager for this the third rerack and reported to Mr. Whittier. (Tr. 6225-27.) Mr. Jordan prepared a draft report of the evaluation of long term spent fuel storage at Maine Yankee (DX 129) acknowledging that Maine Yankee was going to lose full core reserve in 1996, before DOE’s performance was to commence. (Tr. 6228.) His draft report concluded at that time that dry storage was the best storage option. (Tr. 6230.) The report dated December 18,1990 warned that DOE’s admitted delay necessitated examination of storage. “One of the challenges confronting Maine Yankee in the next several years is the question regarding the temporary disposition of the spent fuel now residing in the spent fuel pool. This challenge is necessitated by the failure of DOE to meet its contractual obligation to assume timely control of the spent fuel for placement in a repository.” (DX 129; Tr. 6257.) That report was finalized and presented to Maine Yankee’s corporate officers who decided to proceed with the third reraek nevertheless. (Tr. 6231.)

Mr. Jordan testified that if DOE had commenced pickup in 1998, Maine Yankee still would have needed space for approximately 150 to 225 additional assemblies. He favored dry storage. Maine Yankee spent approximately $10.3 million to create space for 576 additional assemblies. (Tr. 6238-40.) He explained the cost would have been about the same regardless of the number of additional racks because of the configuration. (Tr. 6242.) In connection with decommissioning studies, Mr. Jordan wrote that he assumed Maine Yankee would shut down in 2008 and DOE would remove SNF starting in 1999 and concluding in 2018 based on the 1992 ACR. (DX 743; Tr. 6246-47.) When the decision to reraek was made, Maine Yankee intended to operate until 2008.

On cross-examination, Mr. Jordan testified that if Maine Yankee had a fair degree of confidence that DOE was coming in a timely manner to pickup Maine Yankee’s SNF, and they were confident with the schedule, “then in all probability, we would have accepted the loss of full core discharge and we would have accepted the use of the temporary rack in the cask pit area and be able to have waited for the Department of Energy to alleviate the storage problem in the spent fuel pool.” (Tr. 6259-60.) Maine Yankee could have lived with loss of FCR for a short time. (“[Maine Yankee] would have considered loss of full core offload capability if that loss was *279 for a limited period of time.”) (Tr. 2857 (Whittier).)

Maine Yankee finalized the design of the racks and then obtained concurrence to proceed with the manufacturing of the racks. Following a delay of approximately one year 31 and one refueling cycle, the racks were installed. Most of the racks (26 out of 29) were installed when in August of 1997, the plant was shut down and installation ceased. (Tr. 2868-70.) The reracking efforts and attendant costs were from 1992 to 1997. (MY PFF 90.)

The circumstance that Maine Yankee shut down in 1997, before loss of FCR, does not convert the prior reasonable mitigation decision into an unreasonable decision. Reracking was a result of Maine Yankee’s understandable anxiety and skepticism over the timing and extent of DOE’s performance. DOE’s delay was a substantial causal factor. (MY PFF 126.)

Defendant does not dispute that the costs for the reracking totaled $10.3 million. (MY PFF 127 and Def.’s Resp. 32 ); Tr. 2780 (Thomas) (the cost of the third reracking was $10.3 million); Tr. 6240 (Jordan) (agreeing that “Maine Yankee incurred costs totaling [approximately] $10.3 million to create space for 576 additional assemblies”); PX 1731MY (summary of categories of reracking costs.)

The court concludes and finds that DOE’s delays substantially caused Maine Yankee’s decision to reraek for the third time. If DOE had commenced performance by January 31, 1998, Maine Yankee may have had to operate with less than FCR, but that risk would have been assumed and alternate short-term measures would have been taken. The decision to rerack was commercially reasonable and defendant did not show to the contrary. That Maine Yankee might need to rerack was reasonably foreseeable to DOE at the time of contracting.

Connecticut Yankee reracking

Although Connecticut Yankee’s 40-year license was to expire in 2007, the plant ceased operations in December 1996 based on a study that replacement power from other sources would save ratepayers as much as $130 million. (DX 471; Def.’s PFF 282; CY PFF 119 and Def.’s Resp.) In 1976, prior to the cessation of reprocessing in this country, Connecticut Yankee sent 82 of its spent fuel assemblies to a Morris, Illinois facility owned by General Electric where they have remained. (Tr. 2301; CY PFF 20 and Def.’s Resp.) In settlement of litigation, General Electric agreed that for a fee, the SNF could remain. (Tr. 2302.)

In October of 1992, Connecticut Yankee estimated that there was less than a 25% probability that DOE would commence performance by 1998. (Tr. 2596 (Mellor); PX 1444CY (October 1992 Spent Fuel Storage Strategy by Northeast Utilities) at CDB006684 (reporting conclusion of Nuclear Fuel Engineering that “there is less than a 25% probability that DOE would remove fuel from utility sites by 1998”) and at CDB006685 (“There is some likelihood (perhaps 50%) that DOE may begin to remove fuel by 2010.”).) From 1995 through 1996 Connecticut Yankee expanded its spent fuel racks for the second time. (Tr. 2588-2620 (Mellor).) Russell Mellor, with bachelor’s and master’s degrees in chemistry, initially worked for Yankee Atomic starting in 1973 as a chemist responsible for the radiochemical analyses of the primary coolant and subsystem. His responsibilities increased through the years, and in 1984 he became chemistry manager. In 1987, he was technical director, responsible for chemistry, health physics, reactor engineering and emergency *280 planning. In late 1990, he moved to corporate headquarters as engineering project manager, then decommissioning manager, responsible for all decommissioning. He joined Connecticut Yankee in March of 1997 where he worked until April of 2003. (Tr. 2584.) He was promoted to director of operations and decomissioning, then vice president of operations and decomissioning, then President and CEO of Connecticut and Yankee Atomic. His duties included oversight of the spent fuel pool at Connecticut Yankee. (Tr. 2585.) At the time of trial in 2004, he was president of West Valley Nuclear Services Company in charge of managing, operating and decommissioning the West Valley Nuclear Center in West Valley, New York. (Tr. 2588.)

From his review of Connecticut Yankee documents, he familiarized himself with the 1996 reracking. (Tr. 2589.) He testified it was his understanding that the pool was reracked in 1996 in order to assure full core offload capability. (Tr. 2591.) As for the importance of full core reserve, Mellor’s testimony is credited in reaching the court’s findings herein, as to all three plaintiffs, that the maintenance of full core reserve (FCR) was a common and important operational concern that, while not required by the NRC, was preferred. Accordingly, decisions based on maintenance of FCR, were neither unreasonable nor unforeseeable. “It’s an operational consideration. Any time the reactor is shut down and there may be some repairs that may have to be accomplished that would require removal of the fuel, you really do need a place to store the fuel when it is removed from the reactor.” (Tr. 2591-92 (Mellor).) He also explained the consequences of not having FCR: ‘Well, you wouldn’t undertake repairs that required the full core offload capability until you had it.” (Tr. 2592.) At the time this reracking was under consideration in the summer of 1996, and at the time the reracking was completed, the permanent shutdown of the plant was not under consideration. The expectation at that time was for the plant to continue to operate. (Id) Connecticut Yankee concluded, as early as 1992, that the most reasonable cost-effective method to avoid loss of full core reserve in the spent fuel pool was to rerack the spent fuel pool. (PX 1444CY at CDB006681; PX 1445CY at CDB005938, CDB006692, CDB006697; PX 1448CT at CDB006660-661; PX287CY at 2, ¶2; CY PFF 117 and Def.’s Resp.)

Mr. Bennet, Chief Financial Officer of Connecticut Yankee, testified that from his review of documents and discussions (coupled with his knowledge of DOEs delays from his prior experience at Yankee Atomic) that Connecticut Yankee reracked in 1996 33 in order to avoid loss of full core reserve around 2000. (Tr. 1531, 2297, 2307 (Bennet) (“Since the [DOE] ... was believed to not be capable of removing fuel in 1998, and that would cause Connecticut Yankee to lose full-port [sic- — core] discharge approximately around the year 2000,” Connecticut Yankee decided to rerack in 1996.).)

A September 1992 spent fuel study (PX 1444) authored by Northeast Utilities (the manager of Connecticut Yankee’s plant), in a section titled “DOE Acceptance Uncertainties,” reported DOE’s then estimated 12 year delay in the commencement of its contract obligations.

DOE’s latest Draft Mission Plan (dated September, 1991) noted that two fuel disposal avenues are currently being pursued. First, DOE is hopeful of beginning receipt of spent fuel at a Monitored-Retrievable Storage (MRS) facility in 1998. The responsibility for cutting a deal to site a MRS currently rests with a Presidentiallyappointed, Nuclear Waste Negotiator. Unless extended by Congress, the Negotiator’s term expires on January 1, 1993. In the event that no MRS-site materializes, DOE is hopeful of receiving fuel at a repository in 2010. Since the Nuclear Waste Policy Act was passed nine (9) years ago, the start-date for a repository has slipped by twelve (12) years.

(PX 1444 at CDB006671.)

Maintenance of FCR is noted as a goal and challenges include pursuing technological *281 storage options that are economical but allow for flexibility “to accommodate DOE progress.” (Id.) Cost was estimated at $8 million if DOE did not timely perform and there was less than a 25% probability that DOE would timely perform by 1998; but if DOE was going to perform, reracking would not be necessary. (Id. at CDB006683-84.) There was “some likelihood (perhaps 50%) that DOE may begin to remove fuel by 2010” so planning was done incrementally with flexibility to scale down if DOE began to perform. (Id. at CDB006685.) The study predicted loss of FCR in August of 2000 if DOE did not begin to perform; with reracking, there would be no loss of FCR through 2012, the end of the life of the plant. (Id. at CDB006991.) Engineering for reracking would be in 1993, with rack installation complete by the end of cycle 18, 19 or 20 as appropriate. (Tr. 2597.)

An update of the fuel study in late 1993 reiterated that DOE was not expected to meet its 1998 commitment and there was no firm performance date. By reracking, storage needs would be meet.

The Department of Energy, DOE, is not expected to meet its contractually required 1998 commitment to begin removing the spent fuel from our nuclear units. Furthermore, there is no firm date by which they can be expected to begin this removal. It is therefore necessary to pursue a strategy that does not depend on DOE action through the end of the license life of each of our plants. It is also desirable to defer major expenditures as long as reasonably possible in the event that DOE ... [d]oes begin to accept fuel.

(Tr. 2600-01, quoting from PX 1445 at CDB 006692.)

Similar to testimony summarized above, Mr. Mellor testified to technical innovation that increased the amount of energy that could be extracted from fuel in the reactor core thereby lengthening the time between re-loads, postponing storage demands. (Tr. 2602-03.) As then adjusted, Connecticut Yankee expected to lose FCR in 2000. A partial rerack to add approximately 1,500 spaces would prevent loss of FCR through 2012, 34 which was consistent with the company plans at that time. (Tr. 2597-98.) Engineering work in 1994 was anticipated with actual implementation planned for 1995. (Tr. 2603.) For technical reasons, in order to have adequate available space to install the racks, installation was planned during fuel cycle 19. The 82 fuel assemblies from GE Morris might have to be added to the pool. (PX 1445 at CDB006697.)

Connecticut Yankee was licensed to store 1,172 assemblies (1,168 “usable” spaces 35 ) (Mellor Demonstratives 1-8.) 36 Existing inventory as of December 15, 1993 was 816 which means the pool had unused capacity of 352 spaces not including full core reserve of 157 assemblies. With projected reactor discharges commencing in 1994 of from 52 to 56 assemblies about every two years (approximately one third of the core), total storage space for 1,439 assemblies would be needed by 2006 considering full core reserve of 157 assemblies. (Id. at CDB006706.)

In March of 1995, Connecticut Yankee submitted its reracking application to the NRC. (PX 287.) The reracking, including replacing some racks with higher density modules “will increase the total storage space from 1,168 to 1,480 which will provide sufficient capacity to allow operation until the end of the current plant operating license.” (Id. at 5.) Connecticut Yankee’s decision to rerack was caused by DOE’s delay, breach(es) and lack of confidence if and/or when performance would commence.

At the present time, [Connecticut Yankee] has contracted with [DOE] to begin taking delivery of its spent fuel in 1998. Howev *282 er, DOE has indicated that all of [Connecticut Yankee’s] spent fuel may remain on site until a repository is operational or until some other facility is constructed under the [NWPA], Since 1987, DOE had made no legislative proposal to construct any facility other than a repository. Accordingly, in [Connecticut Yankee’s] judgement, [sic] it is not likely that a facility will be constructed and operational early enough to avoid loss of full-core-discharge capability at the Haddam Neck site, even if Congress mandates an interim storage facility, in an amendment to the NWPA____

[Following evaluation of alternatives] a partial reraek would provide an increase in storage capacity which would maintain the Unit’s capability to accommodate a full-core-discharge.

(PX 287 at 2.)

The NRC approved the application and the reracking, which was completed in the summer of 1996, expanded the storage capacity of the pool from 1,168 assemblies to 1,480 assemblies. (CY PFF 120-22 and Def.’s Resps.) The reracking provided the capability to maintain full core reserve to the end of Connecticut Yankee’s operating license in 2007.

Defendant does not dispute that Connecticut Yankee always maintained FCR. (CY PFF 111 and Def.’s Resp.) The court rejects the government’s assertion that Mellor’s testimony and opinions lack foundation because he was not employed by Connecticut Yankee during relevant times. (CY PFF 109 and Def.’s Resp.) The foundation of Mr. Mellor’s knowledge in this regard is considered and weighed appropriately, giving due regard to knowledge he acquired prior to coming to Connecticut Yankee when employed by another nuclear utility. Having observed his demeanor and considered the documents that corroborate his testimony, Mellor’s testimony is duly credited.

Defendant also agrees that in October 1992, Connecticut Yankee estimated that, absent DOE performance, FCR would be lost in 2000. But, defendant adds, Connecticut Yankee also estimated it would lose FCR in 1996 and 1997 before the DOE’s performance was to commence. (CY PFF 114 and Def.’s Resp.) Indeed, as the government points out, the October 1992 estimate of loss of FCR by 2000 was arguably superceded by a later estimate — the March 1995 submittal to the NRC, CY PFF 95, that estimated loss of full core reserve capacity in 1997. Therefore, it is argued, DOE’s breach(es) and delay were not the cause of these expenses and cannot be attributed to the government. Defendant also relies on the testimony of Mr. Abbott, one of its expert witnesses, that the reracking would have been done regardless of DOE’s breach or delay. (Def.’s PFF 328.) The document relied upon by Mr. Abbott was a July 24,1992 multi-utility study of potential allocation exchanges among New England reactors, (DX 156 at YDK008475 (Table B).) The reported date for loss of FCR for several utilities including Connecticut Yankee was 1996. The document was authored by Yankee Atomic, and as Mr. Abbott, the government’s expert admitted, the derivation of that number could not be determined from the document and it “could have been wrong.” (Tr. 5620-21 (Abbott).)

An internal memorandum recited loss of full-core capability after fuel cycle 19, predicted to be in December of 1996 assuming 64-assembly batch size and 18-month cycle. (PX 286CY at A1 of A.) This statement was contained in a 437-page proposal to the NRC to revise the technical specifications of Connecticut Yankee’s spent fuel pool. (Id. at Table 5.3.1; 5-19.) The application included an evaluation of the thermal-hydraulic limits of the pool with the expanded capacity based on a conservative or worst-case scenario to create the maximum heat offloading. It was assumed that 64 assemblies would be offloaded in each cycle as opposed to the more typical 53 to 56. (Tr. 2612, 2618 (Mellor).) The spent fuel projections that Connecticut Yankee actually used to plan for reraeking employed actual fuel batch sizes of 52 to 56 assemblies. (PX 1445CY at CDB006706.) Mr. Abbott admitted these projections were to calculate maximum heat load not for planning for storage. (Tr. 5637-39 (Abbott).) These statements do not alter the court’s conclusions in this regard.

Documents subsequent to the July 24,1992 Yankee Atomic memo which show plans for a *283 loss of full core reserve in 2000 because of DOE’s inactions are accorded substantial weight. (PX 1445CY at CDB006672 and 6691; PX 1445CY at CDB005938 and 6705-06; PX 1448CY at CDB006668.) Furthermore, the actual application, licensing and construction were not consistent with loss of full core reserve in 1997.

Commencement of performance was a long way off regardless of what acceptance rate(s) would be used or was contemplated at the time these mitigation decisions were made. Testimony and documents confirm that the breach was a substantial causal factor in the decision to incur these reracking .charges, particularly given the long lead time for application, licensing and construction. The mitigation decisions were commercially reasonable at the time and the government did not establish unreasonableness. Subsequent events do not vitiate the reasonableness of the decisions when made.

The rerack increased pool capacity from 1,168 to 1,480 assemblies at a cost of $8,350,893. (Tr. 2589.) Defendant does not dispute that Connecticut Yankee incurred reracking costs of $8,350,893. (Tr. 3256-57 (Wise); Tr. 2307 (Bennet); CY PFF 125 and Def.’s Resp.; PX2043a.19 (Wise demonstrative).)

Defense that reracking subsequently proved to be unnecessary

For both Maine Yankee and Connecticut Yankee, defendant asserts that reracking ultimately became unnecessary because both utilities shut down before the need for the additional space materialized. (Def.’s Opening Br. at 69 (“They could have waited to incur those reracking costs to ensure that they would be necessary.”)); (Id., at 70, citing Standard Fed. Bank v. United States, No. 95-478C, slip. op. at 17 (Fed.Cl. Oct. 2, 2004) (unpublished opinion) (“plaintiff has pointed to no reason why plaintiff was compelled to take action immediately, rather than wait until the need was clear, [several] years hence, before making the decision.”).) Rather, they should have waited until January 31, 1998, the date of the breach according to the defendant before taking action. Indiana Michigan eliminates defendant’s argument that plaintiffs’ should or even could have waited until January 31, 1998 to rerack. The obligation to mitigate commenced no later than May 25, 1994. Witnesses testified to the lead time measured in years, for licensing, design and construction of spent fuel racks as well as most of the components of these nuclear power plants. Spent fuel racks are simply not an off-the-shelf commodity that these utilities could wait to design, license, fabricate and install on February 1, 1998. Defendant’s argument does not cast sufficient doubt on the reasonableness of the reracking to warrant rejection of the costs as damages.

As DOE’s delays and level of performance continued to slip, Maine Atomic, Connecticut Yankee and Yankee Atomic each built dry storage facilities. A substantial causal factor in their respective decisions was DOE’s partial breach(es). In the main, these at-reactor costs were reasonably foreseeable to DOE at the time of contracting, the decisions were commercially reasonable and the costs were shown with reasonable certainty.

Maine Yankee’s ISFSI

The motivations which led to Maine Yankee’s development, licensing and construction of its ISFSI and the licensing, purchasing and loading of dry storage containers were disputed by the parties. Fuel assemblies were taken from the racks in the spent fuel pool, placed into canisters, transported and placed in 250-ton concrete casks. The magnitude of this endeavor was demonstrated in photos, miniature displays, and video tape at trial.

In December 1996, while the plant was shut down, analysis determined that some $190 million in repairs to steam generators were needed and there was no guarantee the repairs would work. Repairs would have had to go through a three-year approval process and there were defective fuel and cable separations issues. (Tr. 273-39.) These “dual uncertainties concerning the steam generators and the cable separation issue ... led [Thomas] to compare that to the cost of purchasing alternative power.” (Tr. 2740.) Examining the cost-benefit from a ratepayer standpoint, particularly with relatively lower *284 costs of electricity and oil and some opportunities to import power from Canada, Maine Yankee decided not to take the financial risk of continued operation. (Tr. 2741.) In May 1997, the decision was made to either shut down or sell the plant. A potential sale did not go through. (Tr. 2742.) In August of 1997, the decision was made to permanently shut down. (Tr. 2741-42.)

After its nuclear plant ceased operation in 1997, although the third reracking alleviated the immediate need to maintain full core reserve, focus shifted to long-term storage and comparison of leaving all the spent fuel in the pool or making other arrangements. This planning was done in the breach world, caused and necessitated by DOE’s delay. Long-term options were explored:

Q. What options was Maine Yankee considering in terms of long-term storage of its spent fuel?

A. Well, we really were faced with dispositioning or dealing with the fuel in one way or another____[W]e considered maintaining the spent fuel pool in a wet storage condition. We considered dry cask storage, which we ultimately established and have now completed. And we were also mindful, as we had been previously, to look for any — any other alternatives should some develop whereby we would be able to remove the fuel responsibly from the site.

(Tr. 2747-48 (Thomas).)

Maine Yankee retained Raytheon to make fuel storage recommendations resulting in a November 3, 1997 “Independent Assessment of Wet v. Dry Spent Fuel Storage.” Thomas testified that, to his recollection, the Raytheon study gave an approximate $30 million nod to dry storage. (PX 1456MY at MPA022596, ¶ 1); “[T]he ISFSI option provided significant economic (from 31 to 42 million dollars), decommissioning 37 interfacing, and public acceptance benefits.”; MPA022596 at ¶2; MPA022597 at Figure 7.1; MPA022598 at Figure 7.2 (an ISFSI with a 1997 start would become more economical than wet storage commencing in 2008.) In this regard, Maine Yankee also recognized that the plant could not be decommissioned if the spent fuel pool was there and was also concerned about low-level waste associated with the wet pool. Flexibility was important. (Tr. 2748-49.) Private fuel storage was considered as a mitigating option, but rejected. (Id.) Dry storage had higher initial costs, but lower annual maintenance costs. (Tr. 2751.)

That DOE’s delay and partial breach was at minimum a substantial causal factor in the underlying assumption of long-term storage that prompted the analysis is replete in the Raytheon study. (PX 1456MY.) “[T]he history of government actions (or inactions) regarding removal and disposal of commercial utility spent fuel despite contractual commitments and the difficulties and costs for implementation of private centralized interim fuel storage imply that Maine Yankee planning should be based on some spent fuel remaining on-site until year 2023, or more realistically, year 2028.” (Id. at MPA022574.) The schedule assumed a 1997 Request for Proposal (“RFP”), and with selection of a vendor, licensing, receipt of storage and transportation canister, loading would be completed in August of 2003. (Id. at MPA 022575.)

[I]f the DOE would have shown up on site at Maine Yankee and removed the fuel in the committed time frame per the contract, there would have been no need to even construct the ISFSI or to transfer fuel____ [T]he real point, the real fact is that if the DOE would have performed according to their contract, [there] would never have been a need to construct an ISFSI or move spent nuclear fuel.

(Tr. 7345 (Smith).)

Following the decision to go with dry storage, implementation proceeded. After bid solicitation, Maine Yankee selected Stone & Webster to design, license and construct an ISFSI and decommission the plant in phases. *285 (Tr. 2750-53.) Safety, experience, financial qualification, as well as technical terms, were among the factors cited in selecting Stone & Webster. 38 (Tr. 2756.) Payment bonds were required. (Tr. 2757.) The contract was signed in 1998. The contract was designed to be flexible. (Tr. 2754.) Stone & Webster would construct an ISFSI unless Maine Yankee removed it from the phased contract. (Tr. 2758.) Early effort included soil and foundation work 39 and procuring canisters. (Tr. 2757-58.) This work was done in 1999 and the beginning of 2000. (Tr. 2758-59.)

Concerned about the contractor’s financial condition, Maine Yankee terminated its contract with Stone & Webster on May 4, 2000. (Tr. 2763.) Stone & Webster subsequently filed for bankruptcy. (Tr. 2765.) Maine Yankee exercised its right to have certain subcontracts assigned to it, including the NAC International contract for the hardware for dry storage — canisters and related equipment. (Tr. 2766.) NAC International was chosen to move the fuel from the pool to the pad. (Tr. 2768.) The NAC contract was later terminated in January of 2003. (Tr. 2770.)

Multi-purpose containers

For their dry storage systems, plaintiffs acquired containers that could be used for both storage and transportation — sometimes referred to as dual purpose containers, or multipurpose canisters (“MPCs”). (MY PFF 93.) When questioned why Maine Yankee decided to use a dual purpose transportable dry storage system, Thomas responded:

[F]rom a practical point of view, we knew the fuel was going to leave the site, and that’s consistent with our wishes and finishing our responsibility and meeting that liability. And we understood that that was what the DOE has intended and intends to do, to come in and remove the fuel.

So, therefore, it made sense to make sure that is was licensed both for storage, [and transport] since the period of time is not certain, and today remains uncertain, as well as from a practical matter of having it ready to go and ready to be shipped.

(Tr. 2749-50.)

MPCs are also included in the claims of Yankee Atomic and Connecticut Yankee. SNF, failed fuel and GTCC waste (discussed hereinafter) is placed inside the canister which is then placed inside a sophisticated concrete cask on the ISFSI pad where it waits for DOE. (Def.’s PFF 301; DX 801.) Maine Yankee acquired the NAC-UMS storage system, designed by NAC International. Maine Yankee’s canisters each hold 24 spent fuel assemblies. (Def.’s PFF 301(c); DX 801.) Connecticut Yankee used the NAC-MPC storage system also provided by NAC International. Connecticut Yankee’s canisters hold 26 assemblies. (Def.’s PFF 301(b); DX 801A.) Yankee Atomic also used the NAC-MPC storage system with a canister that holds 36 assemblies. (Def.’s PFF 301(e); DX 404 at YDK029229.) NRC approved all three systems, a nod to their commercial reasonableness. (DX 801 at NCT0050047 (Maine Yankee); DX 801A (Connecticut Yankee); DX 401 at YDK029219 & YDK029228 (Yankee Atomic).)

Defendant contends multipurpose canisters were not required under the Standard Contract, their use in mitigation was not reasonably foreseeable to DOE at the time of contracting, nor was their expenditure caused by DOE’s anticipated and announced partial breach. Under the Standard Contract, DOE is required to provide casks to transport SNF from the utility site to DOE’s facility. Casks must be suitable for use at the utility’s site. Art. IV(B)(2). The utility is responsible for loading the casks; DOE supplies *286 “[w]ritten procedures for cask handling and loading, including specifications on Purchaser-furnished canisters for containment of failed fuel.” Art. IV(A)(2)(a) and (B)(2)(a). Defendant does not suggest the design for any eventual cask or other mode of transportation has been established. Neither was it established that canisters of SNF or material other than failed fuel could or would not be taken by DOE. Thus it is speculative whether or not these canisters will be able to be placed inside a yet-to-be developed transportation mode defendant argues. However, if plaintiffs have to unload the canisters when DOE performs, any appropriate adjustments can be asserted at that time. See Tenn. Valley Auth. v. United States, 69 Fed.Cl. 515, 543 (2006) (denying offsets for costs the utility did not have to spend because of DOE’s breach as speculative, finding “the ‘benefits’ the government seeks to setoff are too speculative to meet the standards set forth by the Federal Circuit in Indiana Michigan .... ”). At least as of the time of trial, the Yucca Mountain repository design included a facility to open closed containers and remove the individual rods, although this may not have been considered as a “normal throughput activity,” (Tr. 4188 (Zabransky)), any adjustment to these plaintiffs’ commercially reasonable mitigation decisions would be sheer speculation.

Even if the precise storage system had not been finalized in 1983 at the time the Standard Contracts were signed, mitigation in a contract that spans the ages is not limited to decades-old technology. At the time of the Standard Contract, the program was in its infancy — indeed the hundreds of million of dollars paid by utilities to DOE were to be used to finance the development and implementation of the program. It would be ironic if the utilities, required to pay these very substantial sums to and for DOE to develop a program, are denied recompense for equipment that had not been developed by the very program they are funding. Noticeably, the government does not contest the commercial reasonableness of their use. Because of DOE’s announced partial breach(es) and delays, plaintiffs did and were required to mitigate and their selection of these containers was commercially reasonable and defendant did not establish that it was unreasonable. Costs incurred were established with reasonable certainty.

DOE’s contemplation of dual-purpose containers on-site guides the court’s analysis of their subsequent use in mitigation. As early as December 30, 1983 in the Draft Civilian Radioactive Waste Management Program Mission Plan, contingency planning included multi-purpose casks. “As a further contingency, [DOE] will continue to explore the feasibility of a multipurpose storage cask that could be used for the [federal interim storage] either at commercial reactors or at a federal site. If feasible, such a cask would be designed so that it would later be used in the repository program, the MRS program, or in the transportation of spent fuel.” (PX 636 at 2-15.) “[I]t may be more practical to have a standard waste canister which is then stored and shipped in reuseable ‘dual purpose’ casks.” (Id. at 3-E-2; See also PX 647 at 3-C-5 (1984 prediction that transportable storage casks would be available and licensable in 1986-87).) “The casks will be designed ... for ... storage as well as transportation so that once a particular cask is loaded it may remain at that reactor site in a storage mode until the repository is ready to receive that particular batch of fuel.” (PX 641 at 2.) Despite a “draft” moniker, the court relies on these and other documents for foreseeability and reasonableness of decisions made by the utilities.

Incorporating changes based on responses to the October 20, 1983 plan, in early 1984 DOE revised its Mission Plan prior to submitting it to Congress. (PX 683 at 2.) Under the NWPA, the plan was “to permit informed decisions ... in carrying out the repository program and the research, development, and demonstration programs required under this Act.” (Id.) In discussing system integration, particularly an integrated waste packaging and handling system, “as an example of a system that appears to have considerable promise in this regard ... [is]” “ ‘all purpose’ nuclear waste canisters and disposable self-shielded casks that could be loaded at the source, sealed, stored at the reactor site or transported and stored either at a Federal Interim Storage site, a Monitored Retrieva *287 ble Storage site or geologic repository without being reopened.” (PX 683 at 2-12). “[Transportable storage casks appeared to be ‘feasible.’” (Id. at 2-9). Availability of this system by the late 1980s was predicted. (Id. at 2-12.)

A March 30, 1984 internal Memorandum from Michael J. Lawrence, Acting Director of OCRWM, seeking comments on Draft Civilian Radioactive Waste Management Program, included contingent planning for federal storage in transportable storage containers at the reactor site. “To provide this federal storage, the Department will consider the possibility of taking title to spent fuel according to the waste acceptance schedules, but arranging for continued storage at the utilities. This federal storage could be in dry storage casks, or, alternatively, in transportable storage casks or containers....” (PX 643 at 2-1.) “This alternative has minimal technical and economic uncertainty since such casks have been designed, fabricated, licensed and used in Europe.” (Id. at 2-14.) “As a further contingency, [DOE] will continue to explore the feasibility of a multipurpose storage cask that could be used for Federal Interim Storage either at commercial reactors or at a Federal site. If feasible, such a cask would be designed so that it could later be used in the repository program, the Monitored Retrievable Storage Program, or in the transportation of spent fuel.” (Id. at 2-19.)

Contingency planning in the 1985 Mission Plan predicted full pools and dry storage in casks if there were significant delays.

The baseline program assumption, of course, is that the repository is built on schedule. Should the repository be substantially delayed, one of two contingency approaches would be pursued. If the MRS facility is authorized by Congress and constructed, it can begin to accept spent fuel in a timely manner and package and store it (up to the authorized storage-capacity limit) until a repository becomes operational. If the MRS facility is not authorized, or if it is significantly delayed, increasing quantities of spent fuel will have to be stored at reactor sites. In that event, the pools for storing the fuel will continue to be filled, and additional onsite storage capacity through the use of dry storage in casks or similar technologies will have to be employed.

(PX 95 at HQ0005299.)

In July of 1994, Ivan Selin, Chairman of the NRC spoke of the preference for dry storage for shut down plants and spoke favorably of multi-purpose containers at the International Nuclear Materials Management Association. (PX 1457YA at PPL 007230 (“Pool storage requires a greater and more consistent operational vigilance and the satisfactory performance of a larger number of active systems, while dry storage is almost passive.... [T]he NRC increasingly views dry storage as the preferred method of interim storage at mature spent fuel for plants in permanent shutdown.”).) Chairman Selin also spoke favorably of the dual purpose cask. 40 “In the very near future we expect to certify the nation’s first dual purpose cask, that is designed for both storage and transportation, a design developed by the Nuclear Assurance Corporation.” Ivan Stuart, who was working on the very design Mr. Selin referenced, testified that this published report, expressing NRC preference for dry storage by such a senior government official, was unusual and dramatic for NAC. (Tr. 1351 (Stuart).)

Plaintiffs’ respective decisions to use containers that could both store and transport SNF were based, in part, on DOE’s statements of preference for multipurpose containers and their decisions were commercially reasonable. 41 (Tr. 1355-65 (Stuart) *288 (noting that Secretary of Energy Watkins advocated multipurpose canisters); PX 947; Tr. 1358 (Stuart) (listing advantages of multipurpose canisters); Tr. 1360-61 (Stuart) (“I believe everyone in the industry at that point in time [early 1990s] felt that the handwriting was on the wall by DOE that MPC concept would be the acceptable way for the program to progress.”); Tr. 1578-79 (Bennet) (giving reasons for selecting multipurpose containers: (1) “that was the path that was envisioned by DOE. In fact, they even went through a process of going to procure multipurpose casks themselves,” and (2) “[b]ut to us, and our stakeholders at Yankee Atomic, the most important issue was, since this fuel was to go to Yucca Mountain, that is, indeed, be transportable”); Tr. 1603-07, 1609 (Bennet) (discussing DOE’s 1994 initiative to procure multipurpose canisters decision and adoption of that method); Tr. 1826-27 (Bennet) (elaborating significance of having SNF transport-ready); Tr. 2749-50 (Thomas) (Maine Yankee chose a “dual purpose transportable dry storage system” with fuel “ready to go and to be shipped” because Maine Yankee “understood that ... DOE has intended and intends [to] come in and remove the fuel”); Tr. 3142-44 (Meisner) (Maine Yankee used containers “designed for storage and later transportation”); Tr. 2329-30 (Bennett) (“The type of canisters were essentially the same type of canisters that Yankee Atomic procured .... that would allow for potential synergies on down the road for commonality of transport casks and simplification of our oversight of Bechtel during the licensing engineering and design of that equipment.”); Tr. 2352 (Bennet) (“We had already made the decision at the award of the Bechtel contract that we would be using the same transportable cask designed as Yankee Atomic.... [W]e had always wanted to follow the DOE plan that these casks be transport ready.”).)

In its Spent Fuel Storage Study for Connecticut Yankee, in comparing costs of wet versus dry storage, Duke Engineering cited several advantages of the dry storage option being considered including that the SNF would be “transport ready” with the use of an MPC which DOE had indicated “might” be acceptable.

A major advantage of dry storage is that, once fuel is transferred to an ISFSI, it is ready to be placed in a transport cask for shipment to an off site storage/disposal facility. Using a canister/cask system design which complies with the DOE MPC Design Procurement Specification, provides some assurance that the fuel may be acceptable in this form. DOE has indicated that NRC licensed canisters may be acceptable as long as they are transportable.

(DX 266 at 17 (citing an October 4, 1991 DOE letter to Congressman Dicks).) The report cautioned however, that “there is a risk that the design requirements of a future DOE facility would be incompatible with the current canister system. This would require that the fuel be repackaged, at significant expense.” (Id. at 18.)

The court finds that substantial SNF and HLW dry storage costs were reasonably foreseeable to DOE, the breaching party at the time of contracting. At the time the mitigation decisions were made, while the details of the implementation of dry storage may not (and likely could not) have been foreseen due to the state of technology in 1983 compared to performance some decades in the future, the nature and magnitude of alternate storage was, and the decisions were commercially reasonable.

The court in Sacramento Municipal Utility District v. United States found on the evidence presented there that dual-purpose containers were not foreseeable to DOE at the time of contracting. “There [was] no evidence in the record ... that the Government anticipated or was aware on June 14, 1983 that any breach of the Standard Contract might require the Government to be *289 responsible for the costs of ‘dual-purpose’ dry storage. At the time, the NRC was more than a decade away from issuing the requisite license for a utility to implement a ‘dual-purpose’ system. While dry storage was foreseeable, DOE could not foresee that interim storage might include ‘dual-purpose storage.’ ” 70 Fed.Cl. at 361 . Unlike Sacramento Municipal Utility, the record in this case reflects DOE’s awareness of, and later contingency planning involving multi-purpose storage and transportation containers to store SNF at reactor sites if the repository was significantly delayed. That these plaintiffs made that same decision was not only foreseeable, but foreseen. And, defendant did not prove the utility decisions were other than commercially reasonable.

If any friction exists between foreseeability at the time of contracting and commercial reasonableness of the mitigation decisions made more then ten years later, particularly in handling radioactive waste, the nod goes to commercial reasonableness. It was reasonable for plaintiffs to choose a type of storage then being contemplated by DOE. Defendant did not establish it was unreasonable to do so.

Connecticut Yankee’s ISFSI

Thomas Bennet, was hired by Connecticut Yankee in 1997. Connecticut Yankee had been shut down for about a year at that time and was looking for management with experience in decommissioning, which Bennet had from his prior employment at Yankee Atomic. Mr. Bennet testified that from at least 1989 he was skeptical of the DOE’s performance based in part on the 1989 OCRWM report to Congress which outlined numerous problems including a delay in the repository. “So 6 years into the contract, they were looking at a 12-year delay.” (Tr. 1718-19.) From his experience, he was well aware of these delays.

By vote of the Board of Directors, Connecticut Yankee permanently shut down in December of 1996. (Tr. 2302.) Including discharge of the core, a total of 1,019 fuel assemblies were stored in the wet pool together with five or so metal canisters of failed fuel pins. (Tr. 2303.)

DOE’s actions (and lack thereof) were a substantial causal factor in Connecticut Yankee’s decision to design, license, apply for regulatory approval, and eventually construct and load its ISFSI. Company planning documents during the 1990s, leading up to the construction of the ISFSI, reflect the company’s serious concern and growing awareness that DOE could not and would not begin pickup of SNF by January 1998. Planning documents during this time were crafted in the breach world, on a worst case type of outcome, a premise confirmed by testimony. (Tr. 1705,1842.)

After evaluating alternatives, an April 1996 Decommissioning Cost Study by Northeast Utilities Service Company, concluded that technically and economically, prompt dismantlement (“DECON”) was the appropriate shutdown procedure. (DX 236 at 2.) As noted earlier, prompt dismantlement assumes the spent fuel pool is emptied and fuel stored dry. Storage in an ISFSI was assumed. (Id. at CDB000135.) The study also assumed the DOE would not commence performance until 2003 (assuming the availability of an interim storage facility in 2003) with all fuel removed by 2025. (Id. at CDB000084.) The study warned that long-term storage of spent fuel would be “a significant expense. Therefore, the assumptions used to construct the current scenario need periodic evaluation as DOE moves closer to developing a repository for high-level waste and finalizes its acceptance schedule.” (Id. at CDB000119.)

Northeast Utilities Service Company updated the report in December of 1996. (DX 89.) The update was necessitated because of Connecticut Yankee’s decision to permanently cease operations as of December 4, 1996 instead of operating until 2007 — the end of its license. (Id. at 1.) Prompt dismantlement remained as the recommended alternative, both technically and economically. The study assumed the DOE would commence performance in 2006 and spent fuel would remain on-site until 2022. (Id. at 3.) Decommissioning costs are reduced with dry storage because dismantling the reactor and other structures is simplified. (Id. at 38 (“One advantage of isolating the fuel assemblies from the remainder of the site is that decom *290 missioning can commence unimpeded by the presence of the fuel, providing a substantial cost saving.”).) Estimated cost for the prompt dismantling was approximately $427 million; cost of the SAFSTOR and ENTOMB alternatives considered along with DECON were approximately $592 million and $584 million respectively. (Id. at 47.)

Apparently at the request of the NRC, Duke Engineering and Services prepared a Spent Fuel Storage Study dated February 1998. (DX 266.) The report recommended wet pool storage based on the optimistic assumption that DOE would commence performance in 2006. (Id. at COF8006449.) If that start date was pushed back 4 years, which would push the final fuel-out date back 8 years, dry would be economically advantageous. The report is consistent with the basic principle seen in these studies — that as the number of years of storage increases, the reduced annual operation and maintenance costs of dry storage makes dry storage more and more economically attractive. (Id. at COF006440, COF006451.) The study included a recommendation for an MPC Design Procurement Specification which provides some assurance that the fuel may be acceptable in this form and the DOE has indicated NRC licensed canisters may be acceptable as long as they are transportable. (Id. at COF006435 (referencing a DOE letter to Congressman Dicks dated October 4, 1993); Id. at COF006447.)

Although the reracking was completed in the summer of 1996 (following approval of its 1995 NRC application), in December of 1996, the plant was shut down and Connecticut Yankee was evaluating decomissioning costs. When Bennet arrived in 1997, a FERC rate case concerning decommission plans and costs was pending, and Connecticut Yankee was in the process of creating a spent fuel island — essentially maintaining a wet pool while dismantling the surrounding plant. (Tr. 2315.) There was tremendous opposition by interveners in the FERC proceedings, particularly the Connecticut Department of Public Utilities (“CDPU”). Connecticut Yankee’s decision to go to dry storage was litigation-driven in part by the CDPU. In this regard, the government does not dispute that the CDPU was a “forceful proponent” in favor of dry storage, but cites testimony from Connecticut Yankee in the rate ease in opposition to CDPU’s advocation of dry storage. (DX 87.) A 117-page decision issued August 31, 1998, recited CDPU’s criticism of wet versus dry conclusions; asserted the costs of spent fuel storage should be born by DOE, not by the ratepayers; and complained that Connecticut Yankee’s study did not take into consideration priority for shut down reactors. Conn. Yankee Power Co., 84 FERC ¶ 63,009 at *77-80 (1998). Connecticut Yankee defended adding costs to the rate base, pointing out that there were no other sources of funds to pay for these very real costs, and any recovery from DOE could be later used to reduce customer costs. Id. at *45 . The administrative law judge (“ALJ”) also questioned the inclusion of costs to cover the possibility that DOE would charge an additional fee for GTCC waste disposal (discussed infra), finding “there is a reasonable likelihood that GTCC waste removal and disposal is covered in the standard DOE contract.” Id. at *56 . He did, however, conclude that the decision to continue to rely on wet storage was well-supported, and 80 percent of shut down reactors have stored their fuel in a wet pool. The ALJ ordered Connecticut Yankee to prepare a new submittal. 42

Following the ALJ’s determination, Connecticut Yankee proceeded with a new cost estimate and worked with CDPU with the end result being a fixed price decommissioning operations contract (“DOC”) similar to that Maine Yankee used, “a newly emerging seemingly growing business of large architect engineers getting involved with fixed-price decommissioning contracts at nuclear power plants.” (Tr. 2321 (Bennet).) As a result, Connecticut Yankee issued a Request for Proposals in December of 1998, a concept embraced and advocated by CDPU. As Ben-net explained CDPU was in favor of a DOC contract because a fixed price contract “would ... account for a significant compo *291 nent of costs that previously had to go through cost estimates. And [CDPU] liked that. The second was that they believed that the burgeoning industry in New England for decommissioning these plants would yield cost savings and cost energies [sic] that could be achieved by doing this. And they also thought that it would streamline and help Connecticut Yankee decommission efficiently.” (Tr. 2323.) An Offer of Settlement between Connecticut Yankee and CDPU was approved by letter order of July 26, 2000. Conn. Yankee Atomic Power Co., 92 FERC ¶ 61,055 , 2000 WL 1196019 (2000). In the end, however, a settlement agreement required for these expenditures (whether wet or dry), following an adverse decision by an administrative law judge, was a reasonable solution. Defendant has not established that the decision was unreasonable.

There were two bidders — Bechtel and Stone & Webster. (Tr. 2323.) Both bids contained both wet and dry options. (Id.) Dry storage was economically advantageous in the Bechtel bid. (Tr. 2364.) Independently, Connecticut Yankee had been re-evaluating the wet versus dry costs. Length of storage pointed to dry because, despite high initial capital costs, maintenance costs were lower. Basically, because dry storage is closed and passive compared to an open wet pool which needs more monitoring, dry storage becomes more economical as the period of storage extends. “Cost information we had done through the analysis as well as the additional cost information we got from the bids were significant factors as well as what I had said earlier, the length of time we would be looking at fuel storage and a number of other risks that I’m not specifically mentioning here.” (Tr. 2326 (Bennet).) Connecticut Yankee entered into a contract with Bechtel in April 1999. (Tr. 2324.) The Bechtel contract covered transfer of the fuel from wet storage to dry storage and projected project completion in 2004. (Tr. 2327.) The Bechtel contract was a fixed price turn-key agreement with numerous milestones upon which payment was contingent and included, licensing, design, engineering and fabrication of canisters. (Tr. 2329 (Bennet).)

Mr. Bennet, over defendant’s objection, testified that Connecticut Yankee would not have built the ISFSI if DOE had commenced performance:

Q: [w]ould Connecticut Yankee have decided to convert its fuel storage from wet to dry storage absent the government’s breach of contract?

[Government counsel]: Objection. Calls for speculation.

THE COURT: Well, if the witness has knowledge in that respect, he can testify. [Plaintiffs’ counsel]: Do you have knowledge?

A. Yes.

Q. Okay.

A. We wouldn’t have built the ISFSI if the government was performing.

Q. Okay. And why do you say that?

A It’s fairly clear, not to denigrate the positions, but the construction of an ISFSI is not something that’s what I call fun to do. And, clearly you wouldn’t do it if fuel was being removed from the site. There wouldn’t be a need to, if you will.

(Tr. 2328 (Bennett).)

At the time these storage decisions were made, Connecticut Yankee believed that dry storage was the most reasonable method of storing its spent fuel. (Tr. 2361-62 (“Based on the amount of time that DOE would not be performing, dry storage was believed to be the most reasonable way to store the fuel.”).)

[Bennet] Well, [the] most significant factor [in Connecticut Yankee’s decision to go to dry storage] is the fact that DOE would not be performing on the contract by starting fuel removal as of January 1998. And the expected long duration of that nonperformance was the most critical factor in our mind.

But once that factor was undertaken in terms of our analysis and understanding of other factors, economics, the cost of dry storage is, over long periods of time such as that, much cheaper than wet storage.

It helps address risk such as the availability of low-level waste sites to complete the decommissioning of the plant. As well as the costs that I mentioned the other *292 day, decommissioning usually doesn’t get less expensive and cheaper over time, it tends to get more complicated and more costly.

So those element, as well as since the performance breached by DOE was going to be so long, so exceptional, the desire to have the fuel in a transportable stage such that there became opportunity to move it someplace, either to the DOE site, such transportability was factored in. And/or if we were able to see private fuel storage come to fruition, that would also provide for the need for transportability as well.

(Tr. 2362-63 (Bennett).)

Integrated into Connecticut Yankee’s decision-making at the time was uncertainty about when DOE would be coming to remove SNF and HLW and indications were that it would be very long time. “My understanding that we integrated into our decision making was that we didn’t know absolutely when they would be coming. We had a lot of information that it would be a very long time before they came and, importantly, a long time before the repository was opened or a long time before they were even starting to do things such as build the canister hardware necessary to do that.” (Tr. 2363 -64 (Bennet); see also CY PFF 99(h) (p. 111-12).)

Although planned to commence in 2002, actual construction of the ISFSI did not start until 2002 because the City of Haddam denied a zoning permit. (Tr. 2345.) Litigation over the building permit and zoning issues ended in a settlement and consent order. (Tr. 2346-47.) Under the consent order, Connecticut Yankee is prohibited from bringing the SNF back from the GE Morris site. (PX 1920; Tr. 2347-48.) The settlement a

This text is long and has been trimmed here. Open the source document for the complete record.