# Pacific Gas & Electric Co. v. United States

> United States Court of Federal Claims · October 13, 2006 · 73 Fed. Cl. 333

URL: https://www.frixlaw.com/law-library/cases/6655348

## Case

- **Full name:** PACIFIC GAS & ELECTRIC COMPANY v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** October 13, 2006
- **Citations:** 73 Fed. Cl. 333; 64 ERC (BNA) 1395; 2006 U.S. Claims LEXIS 302
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Hewitt
- **Judges:** Hewitt
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part, on other grounds by Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6655348

## How later opinions describe it (automated extraction)

- concluding on evidence presented, that Pacific Gas and Electric believed that DOE’s proffered performance in the 1991 ACR, even with the capacity constraints of the 1987 amendments, would have satisfied its contractual obligations.
- rejecting argument that a utility “failed to meet its burden of establishing when DOE was obligated to accept [PG & E’s] failed fuel . . . because it is possible that PG & E’s failed fuel would not have been accepted upon the [standard] OFF queue”
- noting there was no evidence that DOE’s commencement of performance at the 1991 ACR rates would have been a breach

## Opinion text

OPINION 1
HEWITT, Judge.
This case is before the court following a trial on a claim by plaintiff, Pacific Gas & Electric Co. (PG & E or plaintiff), for partial breach of contract against the federal government (government or United States or defendant). Plaintiff’s action is one of many similar actions against the government that are either pending before this court or that have already been tried in this court involving contracts for the disposal of spent nuclear fuel (SNF) and/or high-level radioactive waste (HLW) between nuclear electric utilities (utilities) and the government. In a previous opinion in this case, the court granted defendant’s motion for summary judgment with respect to counts II and III of plaintiffs complaint, which sought restitution from defendant arising from the Department of Energy (DOE)’s alleged breach of contract and damages from defendant arising from DOE’s alleged taking of plaintiffs property without just compensation. Pac. Gas & Elec. Co. v. United States (PG & E II), 70 Fed.Cl. 766, 767, 782 (2006).
In count I of plaintiff’s complaint—the count addressed in this Opinion—plaintiff seeks damages from defendant arising from an alleged partial breach by DOE of its contractual obligations under the Nuclear Waste Policy Act. Complaint (Compl.) ¶¶ 1, 25. 2 Specifically, plaintiff seeks a total of $92.1 million in damages incurred through December 31, 2004 3 as a result of defen *338 dant’s partial breach of a contract executed between the parties in 1983 for the acceptance, transportation and disposal by DOE of SNF and/or HLW generated at two power plants owned and operated by PG & E — the Humboldt Bay Power Plant Unit 3 (Humboldt Bay) and the Diablo Canyon Power Plant (Diablo Canyon). See Pacific Gas & Electric’s Post-Trial Brief (PL’s Br.) at 2-3.
The terms of the parties’ contract are substantially the same as the terms of a standard contract executed by DOE individually with all utilities in 1983. Compare PX 54 (parties’ contract) with 10 C.F.R. 961.11 (2006) (standard contract). Each of these individual contracts obligates DOE to accept SNF and/or HLW 4 beginning no later than January 31, 1998 and ending when all such substances have been disposed of, under a schedule to be established that would specify the place in an acceptance queue for each individual utility’s SNF and/or HLW. See generally 10 C.F.R. 961.11, Art. II. DOE did not accept utilities’ SNF and/or HLW beginning on January 31, 1998, nor has it begun to do so with respect to any utility, including PG & E, as of the date of this Opinion. See Trial Transcript (Tr.) at 992:18-21 (Womack). The utilities have sued the government for damages for partial breach of contract, including continued storage and related costs incurred as a direct result of the government’s failure to begin acceptance of SNF and/or HLW by January 31,1998. See Compl. ¶ 1.
In Maine Yankee Atomic Power Co. v. United States, the United States Court of Appeals for the Federal Circuit held that DOE had breached the standard contract by not beginning to accept, transport, and dispose of SNF and/or HLW by the deadline of January 31, 1998. 225 F.3d 1336 , 1343 (Fed.Cir.2000). In Indiana Michigan Power Co. v. United States (Indiana Michigan III), the Federal Circuit held that a claim against the government for its breach was a claim for partial breach of contract. 422 F.3d 1369, 1376-77 (Fed.Cir.2005). Defendant does not appear to dispute that it has partially breached the standard contract by not beginning to accept SNF and/or HLW by January 31, 1998. See generally Defendant’s Memorandum of Contentions of Fact and Law (Def.’s Memo.) passim; Defendant’s Posh-Trial Brief (Def.’s Br.) passim. Accordingly, as an initial matter, the court finds that defendant has partially breached the parties’ contract in
*339 this case. See Maine Yankee, 225 F.3d at 1343; accord Sacramento Mun. Util. Dist. v. United States (SMUD I), 63 Fed.Cl. 495, 502-503 (Fed.Cl.2005); Tenn. Valley Auth. v. United States (TVA I), 60 Fed.Cl. 665, 679 (Fed.Cl.2004). It is the impact that DOE’s breach had on PG & E on which this Opinion focuses.
The impact of DOE’s breach is dependent upon the resolution of the issue most sharply-disputed by the parties, about which the court heard the most testimony at trial, and of paramount importance to the resolution of this case: namely, the scope of DOE’s performance obligation under the standard contract generally, and the parties’ contract specifically, within the unique regulatory environment in which such contracts were negotiated, executed and implemented. Central to this disputed issue is the rate at which DOE would have accepted utilities’ SNF and/or HLW had DOE begun to perform on January 31, 1998. In brief, the higher DOE’s acceptance rate, the earlier in time plaintiff’s SNF and/or HLW would have been accepted by DOE under the schedule containing the acceptance queue, and the earlier DOE would have completed performance of the parties’ contract had it performed beginning on January 31, 1998. The higher DOE’s acceptance rate, the greater the amount of continued storage and related costs that would be the direct result of DOE’s failure to begin performance of the standard contract by January 31, 1998, and therefore, the greater the award of damages to plaintiff.
Plaintiff’s main theory of the case is that DOE’s acceptance rate was left as an open term in the parties’ contract, see Pl.’s Br. at 7, and that the court should therefore supply such a term based on the intent of the parties, see PG & E’s Reply to the Government’s Post-Trial Brief (Pl.’s Reply) at 2. Defendant’s main theory of the case is that, after negotiation on the issue and, by choice, the parties’ contract does not contain a specific acceptance rate obligation and that, as was envisioned by the express terms of the parties’ contract, DOE’s acceptance rate eventually was “sufficiently definitized ... to create an enforceable schedule against which damages can be measured.” Def.’s Memo, at 2. Plaintiffs theory posits a high acceptance rate; DOE’s a low one.
The court conducted nine days of trial and heard the testimony of seventeen witnesses 5 *341 in June of 2006. In addition to the trial record, the court has considered extensive post-trial briefing and certain deposition designations filed by the parties. The court addresses first the scope of DOE’s performance obligation to accept PG & E’s spent fuel under the parties’ contract. Principally, this issue focuses on DOE’s acceptance rate. 6 Resolution of the scope of DOE’s performance obligation to accept PG & E’s spent fuel under the parties’ contract will facilitate the court’s remaining analysis, which will focus on whether the costs claimed as damages by PG & E were incurred as a direct and reasonably foreseeable result of defendant’s partial breach of the contract. Based on these analyses, the court will enforce DOE’s performance obligation to accept PG & E’s spent fuel by determining to a reasonable certainty the total amount of damages to be awarded plaintiff for defendant’s partial breach of contract.
I. The Scope of DOE’s Performance Obligation Under the Parties’ Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste and Under the Nuclear Waste Policy Act
A. Background Facts Relevant to the Scope of DOE’s Performance Obligation Under the Parties’ Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste and Under the Nuclear Waste Policy Act 7
1. Introduction
In the late 1970s, the Federal Government issued a moratorium on commercial reprocessing of SNF. Tr. at 995:17-20 (Womack); id. at 124:25-125:6 (Mills). This decision had a significant impact on SNF storage because reprocessing reduces the volume of SNF. The nuclear utility industry responded “[w]ith considerable anxiety” to the moratorium because, without reprocessing, utilities had “no good alternative” for the storage and disposition of the SNF they were then gener *342 ating and had generated in the past. Tr. at 125:24-126:16 (Mills). At that time and into the early 1980s, SNF was primarily stored in deep pools of water adjacent to nuclear power reactors. PX 82 (1985 Mission Plan) at 8. 8 The water cools the fuel and serves as an effective shield to protect workers at the utilities’ reactor sites from radiation. Id. The level of radiation begins to decline immediately, and within ten years it decreases to approximately one-tenth the level measured at the time of removal from the reactor. Id. However, some of the elements contained in SNF remain radioactive for many thousands of years; SNF therefore requires permanent isolation from the public and the environment. Id. Accordingly, DOE and the nuclear utility industry worked together to develop a codified national policy for the permanent storage and disposal of SNF. See Tr. at 129:19-130:24 (Mills); 135:24-136:7 (Mills).
2. The Formation of the Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste Under the Nuclear Waste Policy Act
a. The Nuclear Waste Policy Act
On January 7, 1983, Congress enacted 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)). Congress identified four objectives to be achieved by the NWPA: (1) to develop repositories to ensure the protection of the public and the environment from the hazards posed by SNF 9 and HLW; 10 (2) to establish federal responsibility and a definite federal policy for the disposal of SNF and HLW; (3) to define the relationship between the federal government and state governments with respect to the disposal of SNF and HLW; and (4) to establish a Nuclear Waste Fund, financed by the nuclear utilities, to pay for the costs of the disposal of SNF and HLW, ensuring that such costs would be borne by those responsible for generating such SNF and HLW. 42 U.S.C. § 10131 (b).
The NWPA assigned distinct regulatory roles to DOE, the Environmental Protection Agency (EPA), and the Nuclear Regulatory Commission (NRC). Congress charged DOE with finding, selecting, designing, and ultimately operating the repository. See id. §§ 10132-10134. Congress required EPA to establish generally applicable standards to protect the environment from releases of radioactive materials. Id. § 10141(a). Congress directed NRC to assume responsibility for licensing a DOE-proposed repository. Id. § 10141(b); see also Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1259 (D.C.Cir.2004) (describing these distinct regulatory roles under the NWPA).
The NWPA set forth a detailed process by which the Secretary of Energy, the President of the United States, and the United States Congress would determine a site for a repository for the permanent deep geologic disposal of SNF and HLW. See 42 U.S.C. §§ 10132 , *343 10134,10135; see also Nuclear Energy Inst., 373 F.3d at 1259 (describing process); Tr. at 127:8-25 (Mills, explaining that an environmental impact statement developed in the late 1970s determined “that the best solution was to dispose of the waste either in the form of spent fuel or as separated high-level waste in deep underground geologic repositories”). Congress also provided in the NWPA for the Secretary of Energy to study the possibility of utilizing monitored retrievable storage (MRS) facilities. 11 See 42 U.S.C. § 10161 (b). Congress found that “long-term storage of [HLW] or [SNF] in [MRS] facilities is an option for providing safe and reliable management of such waste or spent fuel.” Id. § 10161(a)(1); see also Tr. at 194:21-195:3 (Mills, stating that “the [NWPA] authorized a repository, but it did not authorize an MRS. It asked for a study of the MRS concept, and the MRS concept could be used if it was authorized at a later point”).
Whether the government chose to use a permanent geologic repository or an MRS to dispose of SNF and HLW, the NWPA provides that, in return for the payment by nuclear utilities of fees “in an amount equivalent to an average charge of 1.0 mil per kilowatt-hour for electricity generated by ... [SNF], or ... [HLW] derived therefrom,” id § 10222(a)(3), DOE was required to begin disposal of the utilities’ SNF and HLW “not later than January 31, 1998,” id. § 10222(a)(5)(B); see also Tr. at 2502:11-15 (Morgan, stating that a requirement of the NWPA was that DOE was “to provide a geologic repository in 1998. If that didn’t work, then we would have a[n MRS] program to back that up.”); 195:1-3 (Mills, stating that an MRS “was identified as a possible alternative to actually having a repository operating in 1998”). In addition, the NWPA provided that, “following commencement of operation of a repository, the Secretary shall take title to the [HLW] or [SNF] involved as expeditiously as practicable upon the request of the generator or owner of such waste or spent fuel.” 42 U.S.C. § 10222 (a)(5)(A).
In order to accomplish the goals of the nuclear waste disposal program, the NWPA authorized the Secretary of Energy “to enter into contracts with any person who generates or holds title to [HLW], or [SNF], of domestic origin for the acceptance of title, subsequent transportation, and disposal of such waste or spent fuel.” Id. § 10222(a)(1). The NWPA “effectively made entry into such contracts mandatory for the utilities by prohibiting the Nuclear Regulatory Commission [ (NRC) ] from issuing licenses to any operator who has not ‘entered into a contract with the Secretary' or who ‘is [not] actively and in good faith negotiating with the Secretary for a contract.’ ” Maine Yankee, 225 F.3d at 1337 (quoting 42 U.S.C. § 10222 (b)(1)(A)). The NWPA required that contracts between DOE and nuclear utilities be entered into no later than June 30, 1983. 42 U.S.C. § 10222 (b)(2)(A)-(B).
b. Notice of Proposed Rulemaking Regarding the Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste
Rather than negotiating the terms of individual contracts with each nuclear utility, DOE implemented the NWPA by promulgat *344 ing the Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste (Standard Contract). See 10 C.F.R. § 961.11 (2006); Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste, 48 Fed.Reg. 16,590 (1983). The Standard Contract was the product of notice and comment rulemaking. See Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste, 48 Fed.Reg. 5,458 (1983). On February 4,1983 DOE issued a Notice of Proposed Rulemaking, which stated:
The proposed standard contract would establish the rights and duties of ... (DOE) and the owners and generators of SNF and HLW. The Act authorizes DOE to enter into contracts with owners or generators of SNF and HLW and strongly encourages these owners and generators to enter into such contracts. The proposed contract terms will cover transfer of title to DOE, transportation, and disposal of civilian SNF and HLW of domestic origin and procedures for collection and payment of fees for such services, as provided by the Act. Revenues derived from such activities will be deposited into the Nuclear Waste Fund as provided in the Act. The Act directs DOE to begin repository operations no later than January 31,1998. shall issue an annual acceptance ranking for receipt of SNF and/or HLW at the DOE repository. This priority ranking shall be based on the age of SNF and/or HLW as calculated from the date of discharge of such material from the civilian nuclear power reactor. The oldest fuel or waste will have the highest priority for acceptance, except as provided in paragraph B.3 of Article VI of this contract. 12
Id. The Notice of Proposed Rulemaking went on to provide the proposed text of the Standard Contract. Id. at 5,462. The proposed Standard Contract in the Notice of Proposed Rulemaking provided that, beginning on April 1, 1992, DOE
Id. at 5,463 (Art. V.B.6). The proposed Standard Contract further provided that, “[ajfter DOE has issued its proposed acceptance ranking, ... the Purchaser 13 shall submit delivery commitment sehedule(s) at least sixty-three (63) months prior to the delivery date specified therein. DOE shall approve or disapprove such schedules within three (3) months after receipt.” Id. (Art. IV.B) (footnote added). Finally, the proposed Standard Contract provided that
[f]inal delivery sehedule(s) ... for delivery of SNF and/or HLW covered by an approved delivery commitment sehedule(s) shall be furnished to DOE by Purchaser. The Purchaser shall submit to DOE final delivery schedules not less than 12 months prior to the delivery date specified therein. DOE shall approve or disapprove a final delivery schedule within forty-five (45) days after receipt. In the event of disapproval, DOE shall advise the Purchaser in writing of the reasons for such disapproval and shall request a revised schedule from the Purchaser, to be submitted to DOE within thirty (30) days after receipt of DOE’s notice of disapproval.
*345 Id. (Art. IV.C). The Notice of Proposed Rulemaking requested written comments to be submitted no later than March 7, 1983. Id. at 5,458.
e. The Utility Industry’s Comments in Response to the Notice of Proposed Rulemaking
DOE received numerous comments in response to the Notice of Proposed Rulemaking. The Edison Electric Institute (EEI), a trade association of the nuclear power industry to which PG & E and many other utility companies belong, 14 made a number of comments, requests, and suggestions. See generally Defendant’s Exhibit (DX) 2.34 (March 7,1983 EEI comments on proposed Standard Contract). EEI commented, in part, as follows:
Article II states that the disposal services shall commence not later than January 31, 1998, a provision consistent with the [NWPA]. However, no other milestones are included. Nor does the contract commit DOE to accept any given quantity of SNF/HLW. And, of most significance to utilities, the contract provides no specific remedies in the event that DOE fails to meet the 1998 deadline____We recognize that these issues are complicated ones and not easily resolved. On the other hand, they deserve serious study, even if their resolution comes after the draft contract has been promulgated. We would therefore strongly urge that DOE meet with purchasers to negotiate a mutually acceptable solution to these open items.
Id. at 8. In addition, EEI stated that
[t]he contract should include a recognition that DOE will design its facilities with the capacity to receive SNF/HLW at a rate commensurate with the amount of SNF/ HLW then being generated together with the accumulated backlog of SNF/HLW. We believe that DOE should be able to take delivery of SNF/HLW equal to that year’s generation plus a reasonable share of the backlog. While the contract may not be the appropriate place to commit DOE to a specific, numerical receiving rate, DOE should recognize, at least qualitatively, the need to have adequate annual receiving capacity to handle industry needs.
Id. Attachment (Att.) A, at 2; Tr. at 319:14-320:10 (Mills). Further to the foregoing comments, EEI formulated a proposed clause and suggested that it be added to the Standard Contract:
WHEREAS, DOE recognizes that its ability to take delivery of [SNF] and/or [HLW] must be commensurate with the amount of such fuel and waste then being generated together with the amount of such fuel and waste previously generated, and consistent with its obligation to take title to such fuel and waste as expeditiously as practicable upon the request of the owner or generator of such fuel and waste.
DX 2.34 Att. A, at 3; Tr. at 320:11-321:1 (Mills); see also DX 35 (February 18, 1983 draft of EEI comments on proposed Standard Contract submitted to members of the Nuclear Fuels Committee) at 4-5 (stating the same).
Certain individual utilities also submitted comments seeking a firm commitment from DOE regarding the rate of DOE’s acceptance of SNF from utilities. For example, Tennessee Valley Authority (TVA) submitted a comment, stating that “a commitment to do no more than start accepting deliveries by 1998 is empty and meaningless without setting forth some reasonable minimum rate of acceptance which corresponds with the purposes of the Act.” DX 2.63 (TVA comments on proposed Standard Contract) at 5. While TVA recognized that, “under the priority ranking system in the draft contract, it would be difficult at the time contracts are executed to give each Purchaser assurances of delivery acceptance at any specific rate,” TVA suggested that “[t]his could ... be done on an industrywide basis.” Id. Accordingly, TVA suggested that the following provisions be added to the Standard Contract:
*346 DOE shall start accepting delivery of SNF or HLW not later than January 31, 1998, at not less than the annual rate SNF and/or HLW is then being produced from civilian nuclear power plants covered by contracts with DOE for the disposal of SNF and/or HLW.
After January 31, 1998, DOE shall be prepared to accept delivery of SNF and/or HLW produced prior to said date on a schedule sufficient to provide for delivery consistent with decommissioning plans for Purchaser’s nuclear power plants____
Id.; Tr. at 2481:14-2482:7; see also Tenn. Valley Auth. v. United States (TVA II), 69 Fed.Cl. 515, 518 (2006) (“TVA was one of the active participants in DOE’s rulemaking and urged DOE to specify a rate of pick up in the Standard Contract to enable utilities better to plan their arrangements for spent fuel storage.”).
Similarly, Northeast Utilities submitted a comment on the proposed Standard Contract, stating:
[I]t is necessary for the Spent Fuel Contract to contain an obligation by the Federal Government to remove specific quantities of spent fuel from each reactor over a specific period of time. We suggest that this removal rate be equal to the amount of fuel generated plus an amount that will eliminate the backlog of spent fuel over a five year period.
DX 2.26 (March 3, 1983 Northeast Utilities comments on proposed Standard Contract) at 2.
Cleveland Electric Illuminating Company (CEIC) submitted a comment suggesting that DOE create an obligation in the Standard Contract for DOE to
have a repository in operation by January 31, 1998 capable of receiving SNF and/or HLW at a rate at least equivalent to the rate at which such material is being discharged in the year 1998 by all civilian nuclear power reactors covered by contracts.
DX 2.17 (March 4, 1983 CEIC comments on proposed Standard Contract) at 5.
Florida Power & Light Company (FPL) submitted a comment suggesting that DOE create an obligation in the Standard Contract requiring DOE to accept SNF and HLW at a rate commensurate with “the schedule and capacities detailed in the approved 1984 DOE Mission Plan,” 15 and, should DOE fail to meet such schedule and capacities, FPL proposed that the Standard Contract state that “DOE shall ... bear the reasonable and necessary incremental costs of storage or alternative disposal incurred by the Purchaser.” DX 2.43 Att. 1 (FPL comments on proposed Standard Contract) at 1.
On March 4,1983, PG & E submitted a 31-page document to DOE entitled Comments Regarding the Proposed Contract For Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive Waste and Related Regulations. DX 2.60 (March 4, 1983 PG & E comments on proposed Standard Contract). PG & E’s comments requested, inter aha, the inclusion in the Standard Contract of language adapted from Section 302(a)(5)(A) of the NWPA to state that, “Hollowing commencement of operation of a repository, DOE shall take title to the SNF and/or HLW of the Purchaser as expeditiously as practicable upon the request of the Purchaser.” Id. at 11; see 42 U.S.C. § 10222 (a)(5)(A); Tr. at 2487:1-19 (Morgan). PG & E’s comments also stated that “[a] ‘swap’ system should be permitted by the contract.... [A] more explicit authorization should be included to assure that exchanges among and within utilities will be permitted.” DX 2.60 (March 4, 1983 PG & E comments on proposed Standard Contract) at 7. Accordingly, PG & E suggested a clause to be added to the Standard Contract which stated, in pertinent part:
*347 Purchaser shall have the right to exchange approved delivery commitment schedules with parties to other contracts with DOE for disposal of SNF and/or HLW, provided that DOE shall have the right to approve such exchanges, based upon the feasibility of necessary transportation arrangements, which approval shall not be unreasonably •withheld.
Id.; see also DX 2.34 (March 7, 1983 EEI comments on proposed Standard Contract) at 15-16 (suggesting that the same clause be added to the Standard Contract).
PG & E also requested that a provision be included in the Standard Contract requiring DOE to approve or disapprove a resubmitted Delivery Commitment Schedule within 30 days, DX 2.60 (March 4, 1983 PG & E comments on proposed Standard Contract) at 6, that a provision be included in the Standard Contract allowing for DOE to offer and utilities to accept an earlier delivery schedule in the event that another utility is delayed, id. at 9, and that a provision be included in the Standard Contract to account for delay, upon the grounds that, “[s]ince waste disposal is a cooperative effort which is funded by a common fund, there should be no monetary liability or damages for delay either by a Purchaser or DOE,” id. at 20-21. Finally, PG & E requested that a provision be included in the Standard Contract that allowed for the modification or amendment of its terms “without additional consideration,” a request supported by the reasoning that “[t]he provisions of this contract have been developed in the light of the uncertainties necessarily attendant to long-term contracts.” Id. at 28.
Unlike many other utilities’ and EEI’s comments, notably absent from PG & E’s comments on the proposed Standard Contract was any request or suggestion to include a firm commitment from DOE regarding the rate of DOE’s acceptance of spent fuel from utilities. See id. passim.
d. DOE Issuance of the Standard Contract as a Final Rule
i. Modifications Made by DOE to the Standard Contract
On April 18, 1983 DOE issued the Standard Contract as a final rule. See 48 Fed. Reg. at 16,590; 10 C.F.R. 961.11. The final rule, as promulgated, made certain modifications to the Standard Contract as it was set forth in the proposed rule. First, while the proposed Standard Contract defined “disposal” of SNF and HLW as that involving emplacement in a permanent repository, 48 Fed. Reg. at 5,462, and stated that “disposal services to be provided by DOE under this contract shall commence not later than January 31, 1998,” id. at 5,463 (emphasis added), the Standard Contract in the final rule required only that DOE begin SNF acceptance by January 31, 1998, “after the commencement of facility operations,” 10 C.F.R. § 961.11 , Art. II 16 (emphasis added). The “facility” to which the final Standard Contract refers is not necessarily a permanent repository, but is defined as “a facility operated by or on behalf of DOE for the purpose of disposing of [SNF] and/or [HLW], or such other facilityfies) to which [SNF] and/or [HLW] may be shipped by DOE prior to its transportation to a disposal facility.” Id., Art. 1.10. As stated in the final rule,
[t]he definition of “DOE facility” (Article 1.10) was expanded to expressly state, in accordance with the [NWPA], that there may be an interim storage facility (or facilities) which DOE may utilize prior to emplacement in a repository.
48 Fed.Reg. at 16,591; see also Notice of Inquiry, Office of Civilian Radioactive Waste Management: Waste Acceptance Issues, 59 *348 Fed.Reg. 27,007, 27,008 (May 25, 1994) (“The use of the term ‘facility' in the Standard Contract, as contrasted with the use of the term ‘repository’ in the Act, was in recognition that a[n MRS] facility may be available before a repository and could meet the intent of the statute.”).
In addition, to accommodate PG & E’s and other utilities’ requests, the final Standard Contract added “[a] new second Whereas’ clause, relating to the responsibility of DOE to take title to SNF or HLW ‘as expeditiously as practicable’ ... to follow the language of the [NWPA].” 48 Fed.Reg. at 16,591 (citing 42 U.S.C. 10222(a)(5)). This “Whereas” clause states that
the DOE has the responsibility, following commencement of operation of a repository, to take title to the [SNF] or [HLW] involved as expeditiously as practicable upon the request of the generator or owner of such waste or [SNF].
10 C.F.R. § 961.11 ; see also Tr. at 2484:20-2485:11 (Morgan, explaining that this language was incorporated into the Standard Contract as a result of various comments from nuclear utilities).
DOE also added an “Exchanges” provision to the Standard Contract, as was requested by PG & E and other utilities. See 10 C.F.R. § 961.11 , Art. V.E. 17 The final rule stated that
[t]his new provision allows Purchasers to exchange DOE-approved delivery commitments with one another, subject to DOE approval____ [T]his procedure will allow the Purchaser greater flexibility in arranging its inventory of spent fuel and delivery thereof____
48 Fed.Reg. at 16,592.
Finally, DOE added an “Amendments” provision to the Standard Contract, as was requested by PG & E and other utilities. See 10 C.F.R. § 961.11 , Art. XV. 18 The final rule stated that “[t]his clause was added to expressly recognize that DOE or the Purchaser may wish to amend the contract in the future to more accurately or equitably reflect their respective interests.” 48 Fed.Reg. at 16,595.
ii. Rate and Schedule of Acceptance of SNF and/or HLW Under the Standard Contract
DOE did not adopt the suggestion of EEI and many of the utilities (not including PG & E) to incorporate into the Standard Contract a firm commitment from DOE regarding the rate of DOE’s acceptance of SNF from utilities. See Tr. at 2466:12-2467:2 (Morgan); 2515:1-5 (Morgan); 562:13-21 (Bartlett). In particular, DOE did not include in the Standard Contract the two-part qualitative rate acceptance obligation suggested by EEI and many of the utilities (not including PG & E) for DOE to accept SNF and/or HLW at a rate commensurate with the amount of SNF *349 and/or HLW then being generated by utilities together with the accumulated backlog of SNF and/or HLW so as to avoid the need for utilities to construct additional at-reactor storage. See Tr. at 2477:15-2478:5 (Morgan); 10 C.F.R. § 961.11 passim. In fact, unlike many other comments that were addressed and rejected with specific reasons for their rejection, see 48 Fed.Reg. at 16,591-16,598, DOE did not address or mention specifically in the final rule its non-inclusion in the Standard Contract of a firm commitment regarding the rate of DOE’s acceptance of SNF from utilities, see id. passim; Tr. at 156:16-157:21 (Mills). However, DOE did state that, “at the request of a substantial number of commentators, a new provision has been added as subparagraph IV.B.5(b), which states that DOE will issue ‘an annual report for planning purposes ... set[ting] forth the projected annual receiving capacity for the DOE facility.” 48 Fed.Reg. at 16,592. 19 At trial, Robert L. Morgan explained that this addition “was a response to the numerous people that wanted us to commit to an acceptance rate in the contract at the time of the rule-making, and ... that was premature, in my mind.” Tr. at 2496:9-2497:1 (Morgan). Mr. Morgan explained that uncertainties surrounding the waste acceptance program— which was to commence 15 years in the future — prevented DOE from committing to any particular rate of acceptance in 1983. See Tr. at 2466:18-2467:2 (Morgan, explaining that “it was too early to tell with the uncertainties of the program, and I just couldn’t feel that I could commit to any rate, but we did change some of the wording in the final rule-making, but it did not give an acceptance rate”); 2477:15-2478:8 (Morgan, explaining that DOE “did accept [the ‘]as expeditiously as practicable clause],’ but we did not commit to delivery dates in the contract” “[b]ecause of the uncertainties of the program”). At this time, PG & E also appeared to understand that these uncertainties existed. See DX 2.60 (Mar. 4, 1983 PG & E comments on proposed Standard Contract) at 28 (“The provisions of this contract have been developed in the light of the uncertainties necessarily attendant to long-term contracts.”).
Accordingly, instead of including a specific acceptance rate or qualitative obligation in the Standard Contract, DOE expanded upon the provisions in the proposed Standard Contract regarding acceptance capacity, ranking and delivery commitment schedules, see supra Part I.A.2; Tr. at 2476:22-2477:8 (Morgan), and provided a specific — albeit complicated, vaguely defined and gradually implemented — mechanism by which parties to the Standard Contract eventually would determine final delivery rates and schedules for the shipment of SNF/HLW from the utilities to DOE, see generally 10 C.F.R. § 961.11 , Art. IV.B.5, Art. V, Art. VLB.
As an initial matter, under the Standard Contract, acceptance priority generally is based upon the age of the SNF and/or HLW as calculated from the date of discharge of such material from a utility’s nuclear power reactor. Id., Art. VI.B.l(a); see also id., Art. IV.B.5(a) (“[P]riority ranking shall be based on the age of SNF and/or HLW as calculated from the date of discharge of such material from the civilian nuclear power reactor. The oldest fuel or waste will have the highest priority for acceptance____”). Unless negotiated and agreed upon otherwise, see id., Art. V.B, or unless an emergency delivery is required, see id. Art. V.D, “DOE will first accept from Purchaser the oldest SNF *350 and/or HLW for disposal in the DOE facility,” id., Art. VI.B.l (a). The acceptance plan whereby DOE gives priority acceptance to SNF and/or HLW that has been discharged from a utility’s nuclear power reactor at an earlier date over such materials discharged at a later date, and whereby DOE accepts first the oldest of such materials from any given utility, is often referred to as the “oldest fuel first,” or “OFF” scheme. See, e.g., Tr. at 163:9-15 (Mills); 501:10-14 (Bartlett). The court refers to this acceptance plan as the “oldest fuel first” or “OFF” acceptance plan throughout this Opinion. As explained by John Bartlett,
the order of acceptance was basically governed by the standard contract, ... and the baseline for that contract was what’s known as the OFF approach, oldest fuel first. The priorities for receipt would be established by the time, in sequence, that spent fuel had been discharged from the reactors. So the fuel that came out first would have the first priority for acceptance. That’s the baseline of the standard contract.
Tr. at 501:10-20.
The Standard Contract contemplated, but did not more specifically implement, an exception to OFF for shut-down reactors: “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.” 10. C.F.R. § 961.11, Art. VLB.1(b) (emphasis added). In its final rule, DOE stated that “[t]his 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. at 16,593.
The following describes the process envisioned by the terms of the Standard Contract for the eventual formulation of a rate and schedule for acceptance by DOE of utilities’ SNF and/or HLW.
Under Article IV of the Standard Contract, no later than July 1, 1987, DOE was required to issue an annual capacity report (ACR) “for planning purposes,” which “set forth the projected annual receiving capacity for the DOE facilityfies) and the annual acceptance ranking relating to DOE contracts for the disposal of SNF and/or HLW including, to the extent available, capacity information for ten (10) years following the projected commencement of operation of the initial DOE facility.” Id., Art. IV.B.5(b); see also 48 Fed.Reg. at 16,592 (stating that DOE added this provision “at the request of a substantial number of commentators”). Then, beginning on April 1, 1991, DOE was required to issue an annual acceptance priority ranking (APR) “for receipt of SNF and/or HLW at the DOE repository.” 10. C.F.R. § 961.11, Art. IV.B.5(a).
Article V.B.l provides that, after DOE has issued its proposed APR, beginning on January 1, 1992, the utilities are required to submit to DOE a delivery commitment schedule (DCS), “which shall identify all SNF and/or HLW the Purchaser wishes to deliver to DOE beginning sixty-three (63) months thereafter.” Id., Art. V.B.l. Each utility was required to submit to DOE a DCS 63 months prior to the date provided on the ACR/APR for acceptance by DOE of that utility’s SNF and/or HLW, identifying the SNF and/or HLW it wished to deliver. See Tr. at 236:4-16 (Mills). A March 4,1992 letter from DOE to PG & E explains this process in further detail:
The allocations in the 1991[ACR] should be the basis for the DCS submittals. An allocation is a specified acceptance capacity (measured in metric tons of uranium) in a particular year for an individual Purchaser.... Once a Purchaser has an allocation, any equivalent quantity of [SNF] owned by the Purchaser can be designated for delivery within the limits of that allocation. A Purchaser may submit DCSs for as many of their allocations as they choose, throughout the 10 year period identified in the ACR.
DX 201 (March 4, 1992 letter from M. Detmer, Contracting Officer, Office of Placement and Administration, DOE to Jene (sic) Barrett, Contract Administrator, PG & E) at 1; see Tr. at 1486:22-1487:4 (Stock).
After a utility submits a DCS, DOE must approve or disapprove such DCS within *351 three months of its receipt. 10 C.F.R. § 961.11 , Art. V.B.l. In the event of disapproval, DOE is required to “advise the Purchaser in writing of the reasons for such disapproval and request a revised schedule from the Purchaser, to be submitted to DOE within thirty (30) days after receipt of DOE’s notice of disapproval.” Id. Then, DOE must “approve or disapprove of such revised schedule(s) within sixty (60) days after receipt.” Id., Art. V.B.2. If DOE again disapproves of a utility’s DCS, “DOE shall advise the Purchaser in writing of the reasons for such disapproval and shall submit its proposed schedule(s). If these are not acceptable to the Purchaser, the parties shall promptly seek to negotiate mutually acceptable schedule(s).” Id.
At least twelve months prior to the delivery date specified on an approved DCS, a utility under the Standard Contract is required to submit to DOE a final delivery schedule (FDS) for delivery of SNF and/or HLW covered by the approved DCS. Id., Art. V.C. After a utility submits an FDS, a similar round of negotiations as that described above with regard to DCSs is to take place in the event of disapproval of an FDS by DOE. See id. A utility has “the right to adjust the quantities of SNF and/or HLW plus or minus (+/-) twenty percent (20%), and the delivery schedule up to two (2) months, until the submission of the [FDS].” Id., Art. V.B.2. Besides the “Exchanges” provision described above, see supra note 17, the terms of the Standard Contract do not discuss further the ACR/APR or DCS/FDS process set forth for determining the rate or schedule of acceptance by DOE of utilities’ SNF and/or HLW beginning on January 28, 1998. See generally id.; see also Commonwealth Edison Co. v. United States (Commonwealth Edison II), 56 Fed.Cl. 652, 665-66 (2003) (describing this process).
iii. Non-Standard Fuel and Failed Fuel Under the Standard Contract
Appendix E of the Standard Contract provides three broad classifications of SNF: (1) Standard Fuel; 20 (2) Non-Standard Fuel; 21 and (3) Failed Fuel. 22 10 C.F.R. § 961.11 , app. E.A. As stated in the Standard Contract, “Fuel may have ‘Failed Fuel’ and/or several ‘Nonstandard Fuel’ classifications.” Id. app. E.A, l.d. The Standard Contract provides that, although “DOE’s obligation for disposing of SNF under th[e Standard Contract also extends to other than standard fuel ..., for any SNF which has been designated by the Purchaser as other than standard fuel ..., the Purchaser shall obtain delivery and procedure confirmation from DOE prior to delivery.” 10 C.F.R. § 961.11 , Art. VI. A.2(b). Once DOE receives a delivery and procedure confirmation request from a utility, DOE is to advise the utility “within sixty (60) days after receipt of such confirmation request as to the technical feasibility of disposing of such fuel on the currently agreed to schedule and any schedule adjustment for such services.” Id. A change or delay in the schedule for disposing of other than standard fuel (i.e., “non-standard” or “failed” fuel) because of the “technical feasibility” of doing so may occur, for example, where the other than standard fuel requires “special handling.” See id., app. E ¶B.6.a; Pl.’s Reply at 10; Def.’s Memo, at 68. However, in general, it appears that, at least as late as September 13,1985, DOE’s intent was that “all currently designed nuclear fuel, including that falling outside the maximum physical dimensions *352 specified in Appendix E [of the Standard Contract], will be subject to the same scheduling procedures,” and that “[flailed fuel canned in a container provided by or approved by [DOE] also will be subject to the same scheduling procedures as other spent fuel.” PX 84 (September 13, 1985 letter from Robert H. Bauer, Associate Director for Resource Management, Office of Civilian Radioactive Waste Management to James B. Hall, Director, Utility Nuclear Waste Management Group) at 1.
iv. Greater-Than-Class-C Waste
The Standard Contract does not contain a specific provision for the collection by DOE from utilities of Greater-Than-Class-C (GTCC) waste, see 10 C.F.R. § 961.11 passim; Tr. at 616:6-16 (Bartlett), a type of waste defined elsewhere in the Code of Federal Regulations as “low-level radioactive waste that exceeds the concentration limits of radionuclides established for Class C waste in § 61.55 of [Chapter 1, Title 10 of the Code of Federal Regulations].” 23 10 C.F.R. § 72.3 (2006). This court has described GTCC waste as
a category of radioactive material that is produced as a secondary result of the operation of a nuclear reactor. Such waste “comes from metal components in the reactor that absorb neutrons during the reactor’s operation and become irradiated.” ... As such, GTCC waste is not typically generated for disposal until a reactor is shut down.
TVA I, 60 Fed.Cl. at 673 n. 9. 24
v. Fees to be Paid by Utilities Under the Standard Contract
Article VIII of the Standard Contract requires utilities to pay a one-time fee to DOE, based on the amount of electricity generated and sold by the utility prior to April 7, 1983, and an ongoing fee to DOE based on the amount of electricity generated and sold thereafter. See 10 C.F.R. § 961.11 , Art. VIII. The fees are “in the amount of 1.0 mill per kilowatt hour (1M/kWh) electricity generated and sold,” 25 id., Art. VIII.A.1, an amount proposed by the utility industry, see Tr. at 133:12-134:23 (Mills). “In-core” fuel, i.e., fuel in a utility’s reactor core as of April 7, 1983, plus any fuel removed from such reactor with plans for reinsertion, 10 C.F.R. § 961.11 , Art. VIII.A.3, is not subject to the one-time fee, Tr. at 1418:4-8 (Stock). In exchange for the fees received by utilities, in accordance with the NWPA, DOE was required under the Standard Contract to take title to, transport, and dispose of the nuclear waste stored at the utilities’ facilities, 10 C.F.R. § 961.11 , Art. IV, beginning “not later than January 31, 1998,” id., Art. II.
vi. Merger Clause in the Final Standard Contract
Finally, Article XXII of the Standard Contract contains a merger clause which states:
This contract, which consists of Articles I through XXII and appendices A through G, annexed hereto and made a part hereof, contains the entire agreement between the parties with respect to the subject matter hereof. Any representation, promise, or condition not incorporated in this contract shall not be binding on either party. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any provision contained in this contract.
*353 10 C.F.R. § 961.11 , Art. XXH.A. 26
3. PG & E’s Nuclear Power Plants
PG & E owns two nuclear power plants: Humboldt Bay and Diablo Canyon. Pl.’s Br. at 2. Humboldt Bay is a permanently-shutdown reactor located on Humboldt Bay near Eureka, California, just south of the Oregon border. Id,.; Tr. at 979:8-13 (Womack). Diablo Canyon is an operational two-unit generating facility located on the Pacific Coast near San Louis Obispo, California. Pl.’s Br. at 2; Tr. at 978:13-979:17 (Womack).
a. Humboldt Bay
Humboldt Bay began operation in 1963. DX 792 (Decommissioning Cost Study for Humboldt Bay SAFSTOR) at 7851; Pl.’s Br. at 2. The plant last operated to generate electricity in 1976, when Humboldt Bay entered a planned shutdown for refueling. Tr. at 981:15-18; Pl.’s Br. at 2. For various reasons, including the accident at the nuclear power plant on Three Mile Island in March of 1979, concerns about potential seismic activity, and uncertainty regarding regulatory requirements, several years went by before PG & E ultimately decided not to restart Humboldt Bay in 1984. See Tr. at 1419:14— 1420:8 (Stock); Pl.’s Br. at 2; PG & E’s Memorandum of Contentions of Fact and Law (Pl.’s Memo.) at 4. Once PG & E made this decision, it moved the last load of fuel from the reactor core at Humboldt Bay to the plant’s spent fuel storage pool. Tr. at 1420:1-8 (Stock). Humboldt Bay contains “a number of failed fuel assemblies,” Pl.’s Memo, at 49; see Tr. at 713:18-21 (Stuart); 1243:20-22 (Womack), and it also contains a small amount of GTCC waste, see Tr. at 715:12-20 (Stuart).
PG & E commissioned Batelle, Pacific Northwest Laboratory (Batelle) to perform an independent assessment of the alternatives for extended storage of the 390 fuel assemblies at Humboldt Bay. See PX 83 (July 1985 Batelle Report) at 1. That study, completed in July of 1985, concluded that continued storage of the SNF in the spent fuel pool was the most attractive option for PG & E. Id. at 2.3; Tr. at 1001:7-24 (Womack). Accordingly, PG & E decided to put Humboldt Bay into “SAFSTOR” status. Tr. at 1002:9-22 (Womack). The NRC defines SAFSTOR as “[a] method of decommissioning in which the nuclear facility is placed and maintained in such condition that the nuclear facility can be safely stored and subsequently decontaminated to levels that permit release for unrestricted use.” U.S. Nuclear Regulatory Commission Glossary, http://www.nrc. gov/reading-rm/basic-refiglossary/safstor. html (last visited July 28, 2006). At trial, Larry Womack described SAFSTOR: “[In] SAFSTOR, in essence, you put the facility in [’]mothballs[’] for a period of time, waiting for the right opportunity, in this case, the removal of fuel by [DOE, to dismantle the plant].” Tr. at 1002:23-1003:2. Waiting for removal of spent fuel from Humboldt Bay before dismantling the plant, while not necessary, was considered appropriate because it would have been substantially more difficult for PG & E to complete decommissioning of the plant with spent fuel in the pool. Id. at 1003:3-22 (Womack). Humboldt Bay officially entered SAFSTOR status in 1988 with an effective date in 1985. Pl.’s Memo, at 5.
b. Diablo Canyon
Diablo Canyon was designed in the 1960s, substantially constructed in the 1970s, Tr. at 995:2-4 (Womack), and began commercial operation in the mid-1980s, Pl.’s Memo, at 6; Pl.’s Br. at 3. Diablo Canyon consists of two nuclear reactors, or “units,” each with its own, independent spent fuel pool. See Pl.’s *354 Memo. at 6; Pl.’s Br. at 3; Tr. at 984:15-25 (Womack). As constructed, the capacity of the spent fuel pools in Diablo Canyon was quite limited, which was consistent with comparably-sized commercial nuclear reactors designed in the 1960s and 70s because at that time, it was envisioned that spent fuel would be reprocessed and thus regularly removed. Tr. at 995:2-14 (Womack); Pl.’s Memo, at 6; Pl.’s Br. at 3. However, as explained at trial by Larry Womack, “during the Carter Administration, the U.S. determined that for nonproliferation purposes, it would abandon the plutordum recycle or reprocessing direction.” Tr. at 995:17-20 (Womack). Accordingly, soon after the Diablo Canyon units began operation in the mid-1980s, PG & E had to provide for additional storage capacity there. Tr. at 995:25-996:3 (Womack). To accomplish this, PG & E used “reracking,” which involves the replacement of some or all of the storage racks in a spent fuel pool. See id. at 988:17-23 (Womack). Through such reracking, PG & E added storage capacity sufficient to continue to store spent fuel in the spent fuel pools at both units until approximately 2006. Id. at 996:4-7 (Womack); Pl.’s Memo, at 7. Both units at Diablo Canyon continue to operate today, supplying approximately 20% of PG & E’s customers’ energy needs and approximately 10% of people of California’s energy needs. Tr. at 981:8-14 (Womack).
4. Execution of the Standard Contract between PG & E and DOE
On June 30, 1983, PG & E executed a contract with DOE concerning its two power plants, Humboldt Bay and Diablo Canyon, the terms of which were consistent with the Standard Contract. See PX 54 (Standard Contract). The court refers to PG & E’s contract with DOE as the “Standard Contract” because the terms of the parties’ contract do not deviate from the Standard Contract published by Doe in its final rule. As in the final rule and consistent with the NWPA, the parties’ Standard Contract required DOE to begin accepting SNF and/or HLW, “after commencement of facility operations, not later than January 31, 1998.” Id. at 6, Art. II. The parties’ Standard Contract states that the SNF and/or HLW to be accepted by DOE “shall be specified in a[DCS] as provided in Article V,” and requires DOE to continue to accept SNF and/or HLW “until such time as all SNF and/or HLW from [Humboldt Bay and Diablo Canyon] ... has been disposed of.” Id.
5. PG & E’s Payment of the One-Time Fee
Under Art. VIII of the Standard Contract, PG & E was required to pay a one-time fee for non-“in-core” fuel in the spent fuel pool that it had used to generate electricity prior to April 7, 1983. See PX 54 (Standard Contract) at 17, Art. VIII.A.2. In order to calculate the one-time fee, PG & E treated the spent fuel that remained in the Humboldt Bay reactor core at the time the Standard Contract was executed and until 1984 — despite Humboldt Bay’s 1976 shutdown — as “in-core” fuel under the Standard Contract and thus not subject to the one-time fee. Pl.’s Br. at 3; see Tr. at 1420:11-18 (Stock); 1418:4-8 (Stock). After the Standard Contract between PG & E and DOE was executed, PG & E paid this one-time fee to DOE in the approximate amount of $4 million. Tr. at 1418:9-1419:7 (Stock).
6. Nuclear Waste Disposal Program Developments, December 1983 Through June 1987
a. The December 20, 1983 Draft Mission Plan
Under the NWPA, the Secretary of Energy was required to submit a Mission Plan “[n]ot later than 15 months after [January 7, 1983], ... to the States, the affected Indian tribes, the Commission, and other Government agencies as the Secretary deems appropriate for their comments.” 42 U.S.C. § 10221 (b)(1). The Mission plan was to “provide an informational basis sufficient to permit informed decisions to be made in carrying out the repository program and the research, development, and demonstration programs required under th[e NWPA].” Id. § 10221(a). In furtherance of this requirement, on December 20, 1983, the DOE’s Office of Civilian Radioactive Waste Manage *355 ment (OCRWM) 27 created a Draft Mission Plan. See PX 59 (December 20, 1983 Draft Mission Plan). In the section of the Draft Mission Plan entitled “Program Strategy,” OCRWM stated:
The objective of [DOE]’s radioactive waste management strategy is to accept high-level radioactive wastes for safe management, storage, and permanent disposal on a firm schedule, beginning not later than January 31, 1998. The Department has executed contracts with all current owners and generators of civilian nuclear wastes specifying the obligations and terms whereby the Department will accepts these wastes. The waste materials will be accepted in accordance with a Waste Acceptance Schedule designed to provide an acceptance rate in the first five years such that no utility will have to provide additional storage capacity after January 31, 1998. Subsequently, the acceptance rate will be equal to or greater than the actual discharge rate of spent fuel each year.
Id. at 2-1; see Tr. at 196:17-197:2 (Mills).
The Draft Mission Plan provided a preliminary Waste Acceptance Schedule in which DOE, beginning in 1998, accepted for disposal in a repository 1,800 Metric Tons Uranium (MTU) per year from utilities until 2003, when DOE began to accept 3,000 MTU per year. See PX 59 (December 20, 1983 Draft Mission Plan) at 2-3; see also PX 51 (June 1983 Report on Financing the Disposal of Commercial Spent Nuclear Fuel and Processed High-Level Radioactive Waste) at 8 (“Each repository has a design receipt rate of 3,000 metric tons (MT) a year, although a receiving rate of 1,800 MT annually is assumed for the first five years.”); PX 55 (July 1983 Report on Financing the Disposal of Commercial Spent Nuclear Fuel and Processed High-Level Radioactive Waste) at 8 (same); Tr. at 2554:15-2561:6 (Morgan, discussing PX 51 and PX 55). With respect to the preliminary schedule and acceptance rate proposed in December of 1983, at trial, Loring Mills stated, “That was not [EEI’s] understanding.” Tr. at 198:9 (Mills). Rather, Mr. Mills explained, “The 3,000 [MTUs] was the design capacity for the facilities. That was ... an understood number. [3,000 MTUs] was the number that we really expected, and that was [EEI’s] understanding of what [DOE] w[as] going to do starting in 1998.[EEI] w[as] somewhat surprised at this point that they were dealing with a rate that was lower than [3,000 MTU] for the first five years.” Tr. at 199:3-12 (Mills); see also PX 73 (June 23, 1984 letter from Michael Lawrence, Manager of the Richland Operations Office (ROO), DOE at that time, to Ben C. Rusche, Director of OCRWM, DOE at that time, containing comments from ROO on the Draft Mission Plan (June 23,1984 ROO comments on Draft Mission Plan)) at 1 (“It should be noted that to eliminate the need for additional at-reactor storage after January 31,1998, the initial waste acceptance rate for 1998 should be about 2,800 MTU plus some amount up to 630 MTU____”); Tr. at 222:18-225:22 (Mills); cf. PX 73 (June 23, 1984 ROO comments on Draft Mission Plan) at Enclosure 1 (“We understand that, as a practical matter, the achievable initial acceptance rate of the first repository will likely be less than the design rate, probably on the order of ... 400 MTU/yr____The implication here is that the first repository should start acceptance operations 2-3 years before 1998 in order to meet the 1998-and-beyond acceptance rate requirements intended in the NWPA.”).
With respect to the first five years of DOE’s acceptance of SNF and/or HLW from nuclear utilities, the Draft Mission Plan stated that, while the 1,800 MTU acceptance rate “is set to prevent, in the aggregate, the need for utilities to provide additional on-site storage after 1998, it is possible that an individual utility may face a need for expanded storage due to the timing of its shipment allocation.” PX 59 (December 20, 1983 Draft Mission Plan) at 2-2 to -4. Accordingly, OCRWM assumed in this Draft Mission Plan
*356 that, after 1998, individual utilities who actually realize this need will arrange for the right to ship spent fuel to [DOE] from a utility who is next in the queue in shipment allocation (subject to prior approval by [DOE] 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 transshipments.
Id. at 2-4. The court assumes that this OCRWM statement refers to the utilities’ use of the Exchanges provision in the Standard Contract. See 10 C.F.R. § 961.11 , Art. V.E; supra, note 16; see also Tr. at 201:7-18 (Mills).
The Draft Mission Plan contained many other program plans, goals and aspirations that were, at that early date, necessarily based on assumptions that OCRWM recognized may or may not be realistic or accurate as the waste disposal program further developed:
The main plan and primary effort is to have an operating geologic repository in 1998.
....
In order for the first repository to begin operation by January 31, 1998, a demanding set of technical, regulatory and institutional challenges will have to be met. The schedule leading to the 1998 initial operation date is optimistic as it is based on the assumption that all problems with each of the activities in the schedule will be resolved without impacting the schedule. Although [DOE] will make every responsible effort to meet the 1998 initial operation date, the potential for further delays must be considered in the program planning.
By the date on which the maximum lead time necessary to construct a[n MRS] facility by 1998 is reached, [DOE] will assess the progress on the first repository. If by this date it is known that the first repository will not be available by January 31, 1998, then [DOE] will request Congressional authorization to construct a[n] MRS facility to be in operation by January 31, 1998 (if Congress has not already approved such action). Should this plan be executed, the MRS facility may continue to be used to receive and store spent fuel until and concurrent with repository operations, before emplacement of the spent fuel in the repository.
PX 59 (December 20, 1983 Draft Mission Plan) at 2-5 to -7; see Tr. at 2502:21-2504:14 (Morgan). Thus, at the end of 1983, one of DOE’s contingency plans in the event that a repository would not be available by January 31, 1998, was to build an MRS facility for spent fuel storage in the meantime. See Tr. at 2502:11-15 (Morgan, stating that a requirement of the NWPA was that DOE was “to provide a geologic repository in 1998. If that didn’t work, then we would have a[n MRS] program to back that up.”); 2504:8-14 (Morgan, explaining the MRS contingency plan).
b. Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting
In February of 1984, OCRWM released a document which recorded speeches, presentations and other proceedings that took place at an OCRWM information meeting on December 12 through 15, 1983 (1984 Proceedings Document). See PX 60 (Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting); Tr. at 2506:1-13 (Morgan). The Proceedings Document provides a transcript of a speech given by Robert Morgan, Acting Director of OCRWM at the time, in which he provides an overview of the nuclear waste disposal program. See PX 60 (Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting) at 11-12. In this speech, Mr. Morgan stated, in pertinent part:
I think most of you know that the [NWPA] requires that we receive waste from the utilities by January l[sic], 1998. Technically, the Act does not specify how much waste or spent fuel we must begin receiving at that time. In fact, if we accepted one spent fuel element in 1998 we would technically be in accordance with the Act. However, we did not believe that that meets the intent of the Act. The basic strategy which we’ve outlined in the mission plan, is that beginning in 1998, utili *357 ties 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 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 the reactors. It is anticipated that at that point, it would look at bringing home the second repository____ [W]e may use the second repository to start working on the backlog of fuel.
Id.; see also PX 62 (February 22,1984 statement of Michael J. Lawrence, Acting Director of OCRWM at that time, to the House Committee on Energy and Commerce, Subcommittee on Energy Conservation and Power) at 2 (“By ... implementing an appropriate waste acceptance schedule, this will initially preclude the need for additional at-reaetor storage by nuclear utilities after January 31, 1998, and, ultimately, remove all eligible waste from at-reactor storage.”).
Mr. Morgan continued:
We are concerned [that] the schedule on the repository is extremely optimistic for getting to 1998. We believe that there are challenges [and] some will say risks to obtaining that date. Therefore, we must have an alternative plan or a parallel plan to begin receiving waste by January 31, 1998. Monitored Retrievable Storage could serve as that alternative.
....
As we develop better schedules, we will present those schedules to the states and to the public....
To summarize, the basic strategy is to have a repository in operation in 1998. We will, however, keep a parallel program going on an MRS so that if a repository is not available by 1998 or if Congress decides to authorize the construction of an MRS prior to that time, we will be able to comply with the law — to begin accepting waste in 1998.
PX 60 (Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting) at 12; see Tr. at 2508:1-17 (Morgan).
The Proceedings Document also provides the transcript of a speech given by Loring Mills, Vice President of Nuclear Activities at EEI at the time. See PX 60 (Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting) at 31-33. In this speech, Mr. Mills stated, in pertinent part:
There are some who are concerned about the equity associated in the contracts, but we are pleased to have them. They provide the lubrication to get the job .done. We really were never under an illusion that we would get a fair and equitable contract with DOE, with firm commitments and detailed performance standards, with penalties for non-performance .... [However, bjeeause several concerns were not handled satisfactorily, we fully expect to see a petition initiated for rule-making to achieve a more reasonable understanding on several issues. The money question is not involved. It is a matter of some of the performance assurances, to include some of the things we heard this morning which were not embodied in the contract.
Id. at 31; see Tr. at 331:3-332:3 (Mills). At trial, Mr. Mills’ testimony was ambiguous— intentionally so, it appeared to the court — as to what were the unsatisfactory “performance assurances” Mr. Mills had mentioned in his 1983 speech. When asked by counsel whether he was referring specifically to the lack of an acceptance rate obligation for DOE in the Standard Contract, Mr. Mills stated, “I do not believe that was one of the unresolved issues that was included in our discussions as I talked to them ... here. There were many others, but ... I do not recall it being the one with regard to rate because we believed that we had the rate determined.” Tr. at 332:21-333:5 (Mills). However, Mr. Mills also testified that acceptance rate “could be a performance standard” not embodied in the contract that EEI wanted to discuss further with DOE. Id. at 333:6- *358 14 (Mills). Mr. Morgan testified that he interpreted Mr. Mills’ statement as indicating that EEI was “still going after a commitment of fuel acceptance rate, and it’s a repeat of what we had received in the rule-making process.” Id. at 2509:15-2510:9 (Morgan).
It appears to the court more likely than not that Mr. Mills was in fact referring, inter alia, to an acceptance rate in his statement about “performance assurances” at the 1983 Civilian Radioactive Waste Management Information Meeting. In any event, it is clear from the preponderance of other credible evidence discussed in Part I of this Opinion that an acceptance rate was not “determined” by December of 1983. Indeed, following Mr. Mills’ speech, on March 19, 1985, representatives of EEI prepared a draft memorandum in support of a petition for rulemaking that proposed that “DOE provide for a minimum receiving rate for SNF — an annual receiving rate not less than the rate at which SNF is being discharged — and that DOE commit to accept the entire backlog of SNF over a ten year period.” DX 88 (March 18, 1985 Memorandum in Support of Petition for Rulemaking) at 8; see Tr. at 339:2-340:22 (Mills). Furthermore, on April 28, 1987, the Utility Nuclear Waste Management Group (UNWMG), an industry activity administered by Mr. Mills on behalf of EEI and other utilities, see Tr. at 276:21-277:3, 252:3-24 (Mills), submitted a formal request that made the exact same proposal, see DX 111 (April 28, 1987 UNWMG formal request for interpretation, amendment or clarification) at 3; Tr. at 343:23-344:18 (Mills). Finally, as late as December 3, 1992, Mr. Mills advised the American Committee on Radioactive Waste Disposal (ACORD), a group of utility executives whose mission was to advise Standard Contract holders, that a rulemaking on the Standard Contract could achieve the industry goal of establishment of a “minimum spent fuel acceptance rate.” DX 236 (December 3, 1992 Draft of ACORD Goals for Mid-1993) at 4; Tr. at 346:11-348:20 (Mills). DOE never adopted these suggestions or engaged in a rulemaking establishing a minimum spent fuel acceptance rate under the Standard Contract. See, e.g., Tr. at 344:5-345:3 (Mills).
c. The 1985 Mission Plan
In June of 1985, pursuant to the NWPA, see 42 U.S.C. § 10221 (a), (b)(1), OCRWM issued a Mission Plan for the Civilian Radioactive Waste Management Program (1985 Mission Plan), see PX 82 (1985 Mission Plan). The 1985 Mission Plan sets forth an overview of then current plans for the waste disposal program and provides information to interested utilities. See generally id. The 1985 Mission Plan includes an “Improved Performance Plan,” in which OCRWM states: “Analyses to date continue to reinforce the tentative conclusion that an MRS facility fully integrated into the overall waste-management system can significantly enhance several important program objectives.” Id. at 17. Among the improvements that an MRS facility could bring to the waste disposal program, OCRWM stated, an MRS could allow for “[ijmproved confidence in the DOE’s ability to meet schedules, particularly in beginning to accept quantities of waste no later than January 31, 1998,” and provide the “[ajbility to accept significantly larger quantities of waste in the early years of operation, substantially reducing the added cost of providing increased at-reactor storage capabilities.” Id. at 18; see Tr. at 2770:19-2771:13 (Kouts).
Under the “Contingency Plans” section of the 1985 Mission Plan, OCRWM stated:
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.
*359 PX 82 (1985 Mission Plan) at 19; see Tr. at 2772:1-24 (Kouts). Based on these and other observations, as well as multiple assumptions necessarily uncertain at that time, OCRWM proposed two waste-acceptance schedules in the 1985 Mission Plan, one that employed an MRS facility to accept the utilities’ spent fuel beginning as early as 1996, and another that did not involve an MRS facility and simply projected the use of a repository to accept utilities’ spent fuel beginning in 1998. See PX 82 (1985 Mission Plan) at 22-29; Tr. at 229:24-230:9 (Mills). The acceptance schedule involving the MRS facility called for DOE’s acceptance of spent fuel at a pre-1998 rate of 2,200 MTU/year, and, beginning in 1998, a rate of 3,000 MTU/year. PX 82 (1985 Mission Plan) at 27. The acceptance schedule not involving the MRS facility called for DOE’s acceptance of spent fuel beginning in 1998 at a rate of 400 MTU/year, ramping up to 3,000 MTU/year after the first five years of the acceptance program, i.e., in 2003. Id. at 26.
According to Loring Mills, the acceptance schedule in the 1985 Mission Plan involving the MRS facility “allow[ed DOE] to achieve what [EEI] thought [it] had as an understanding in 1983 when [the utilities] signed the contracts.” Tr. at 230:5-9 (Mills). According to Christopher Kouts, this schedule and its pre-1998 acceptance “was over and above that level of performance required” under the NWPA and the Standard Contract. Id. at 2603:20-25. Regardless of trial testimony about DOE and utilities’ understanding at this time, the 1985 Mission Plan stated in multiple places that the schedules it contained were tentative and were for planning and illustrative purposes only, and that they could be subject to considerable variation as the program developed. See, e.g., PX 82 (1985 Mission Plan) at 28 (“These schedules are for illustrative purposes only at this time. The amount of defense waste to be disposed of in the repository, and the actual acceptance rates, have not yet been determined by the DOE.”); id. at 29 (“It should be emphasized that this schedule is only an approximation of how the system may operate and is subject to considerable variation. The DOE will further define and specify the system acceptance parameters as the program progresses.”). Similarly, Mr. Mills acknowledged that the numbers in the 1985 Mission Plan were speculative. “This was a document that was issued in 1985, which was still 13 years prior to the time that they were going to start taking the spent fuel, or the waste, and it was understood that there was no way to actually give the precise numbers of what was going to happen in 13 years in advance.” Tr. at 426:21-427:2 (Mills). OCRWM concluded the “Program Strategy” section of the 1985 Mission Plan by stating the following:
The waste-acceptance schedule will serve as a planning base that will be updated annually in response to the latest forecasts of nuclear power growth. Under the terms of the contracts for disposal services that have been signed between the DOE and the utilities, an annual capacity report with projected annual receiving capacities and rankings will be issued by the DOE beginning in 1987. In 1991, the DOE will begin to publish firm waste-acceptance schedules for individual reactors, including shipment allocations.
PX 82 (1985 Mission Plan) at 29; see Tr. at 431:23-432:20 (Mills).
d. The 1987 Mission Plan Amendment and MRS Proposal
In June of 1987, OCRWM submitted to Congress a Mission Plan Amendment to inform Congress of recent changes and developments that had occurred in the nuclear waste disposal program. See PX 97 (1987 Mission Plan Amendment). The Mission Plan Amendment stated that, based on experience gained in achieving other milestones under the program and due to uncertainties or decreases in the budget, DOE had reassessed the 1998 date as being a realistic date for the opening of a geologic repository. Id. at 6. Accordingly, the Mission Plan Amendment explained, “[t]he new schedule shows a 5-year extension of the date for waste acceptance at the first repository, from 1998 to 2003.” Id. However, the Mission Plan Amendment recommended that Congress authorize the use of an MRS facility in order that DOE continue to meet its obligation to begin accepting SNF and/or HLW from utili *360 ties beginning no later than January 31, 1998. See id. at 43-47; Tr. at 2628:22-2629:16 (Kouts). As explained at trial by Christopher Kouts, “[a]t this point in time, [DOE] was acknowledging the fact that the only way we were going to be able to [meet our contractual obligations] was going to be with an MRS facility.” Tr. at 2620:5-12 (Kouts).
The MRS recommendation in the 1987 Mission Plan Amendment was consistent with a previous submission to Congress in March of 1987 proposing that Congress authorize the use of an MRS facility. See DX 107 (March 1987 MRS Submission to Congress). In this submission, DOE explained how it expected the waste disposal program to progress with an MRS facility:
To dispel doubts about the resolve to develop a repository, the DOE proposes a direct linkage of MRS operations and the development of a repository. Specifically the DOE proposes that waste acceptance at the MRS facility be precluded until a construction authorization for the first repository is received from the [NRC]. In addition the DOE recommends that the storage capacity of the MRS facility be limited to 15,000 MTU. This capacity is sufficient to offset potential storage shortfalls at reactors for approximately 5 years, but it is less than one-third of the spent-fuel inventory expected by the year 2000.
Id. at 27. Mr. Kouts explained that the linkage of MRS facility operations with the construction authorization of a repository, as well as the 15,000 MTU limit for an MRS facility, was requested by DOE because “there was great concern that the MRS, if deployed, would essentially become a de facto repository if [DOE] was unable to implement a repository.” Tr. at 2622:9-2623:21 (Kouts).
Accordingly, in the Mission Plan Amendment, OCRWM included a revised acceptance schedule in which DOE began accepting SNF and/or HLW from utilities beginning in 1998 (linked to receipt of construction authorization for a repository from NRC), at a rate of 1,200 MTU/year, and ramping up to 2,000 MTU/year in 2003 and 2,650 MTU/year in 2004 (with a total capacity of 15,000 MTU). See PX 97 (1987 Mission Plan Amendment) at 12-13, 61; Tr. at 2645:3-22 (Kouts). As with the acceptance schedules in the 1985 Mission Plan, DOE acknowledged that this acceptance schedule “is only an approximation of how the system may operate and is subject to considerable variations.” PX 97 (1987 Mission Plan Amendment) at 110. DOE concluded its discussion about the waste acceptance schedule as follows:
The DOE will ... continue to examine system options and will work with the utilities to see whether the waste-acceptance rate can be increased.
The DOE is planning to start issuing, beginning in July 1987, an annual capacity report for planning purposes. As required by Article IV B(5)(b) of the contract with the utilities, the report will inform utilities of the projected annual receiving capacity and the annual acceptance ranking, based on accepting the oldest fuel first, the DOE intends to use beginning in 1998.
Id.; see Tr. at 2896:15-2897:8 (Kouts).
DOE submitted the 1987 Mission Plan Amendment as a draft to utilities for public comment and included the comments received in the final submission to Congress. See PX 97 (1987 Mission Plan Amendment) at 163; Tr. at 2642:17-2647:2. EEI’s comments stated, in pertinent part:
Previously EEUUNWMG/NTG indicated strong support for the MRS concept for numerous, and still valid, reasons. Now, the MRS is more important to NWPA implementation, because it is the only feasible way that DOE can meet its 1998 statutory and contractual obligation.
PX 97 (1987 Mission Plan Amendment) at 414. However, EEI stated that it disagreed with the “so-called linkage between MRS operation and receipt of the NRC construction authorization for the first repository,” because “[t]he effect of the proposed linkage would be to raise a significant question whether DOE will be able to meet its statutory and contractual commitment to begin to accept spent fuel in January 1998.” Id.; see Tr. at 2648:14-2652:20 (Kouts).
*361 In addition, EE I commented on the acceptance rate proposed in the 1987 Mission Plan Amendment:
A significant change between the [1985] Mission Plan and the [Draft Mission Plan Amendment (DMPA) ] occurs in the magnitude, time of, and the rate at which DOE will accept spent fuel. Not only is the start of spent fuel acceptance delayed, but the maximum rate drops from 6000 MTU/ year to 3000 MTU/year. In the 1985 Mission Plan, DOE began accepting spent fuel in 1996 at 400 MTU, increasing to 1800 MTU in 1997 and 3000 MTU in 1998____ The DMPA on the other hand, shows no spent fuel accepted in 1996 or 1997, first acceptance in 1998 at 1200 MTU, and the rate of 3000 MTU once the first repository reaches its design receiving rate in 2008. The much lower acceptance rate now proposed will require greater at-reactor inventories and will adversely impact the ability to dispose of spent fuel from reactors being decommissioned. DOE should ensure that the repository and MRS receiving rates are set such that the original Mission Plan acceptance rate is retained.
PX 97 (1987 Mission Plan Amendment) at 417; see Tr. at 2657:13-2658:14 (Kouts). In response to these comments, DOE stated that it would not retain the MRS receiving rates from the 1985 Mission Plan, but emphasized that the 1987 Mission Plan Amendment continued to be “only an approximation,” and that, “[i]f future developments indicate the need for” a higher acceptance rate, “the waste-acceptance schedule can be adjusted accordingly.” PX 97 (1987 Mission Plan Amendment) at 110.
e. The Nuclear Waste Policy Amendments Act
After DOE submitted the 1987 Mission Plan amendment to Congress, on December 22, 1987, Congress amended the NWPA “to redirect the program for the management and disposal of [SNF] and [HLW] under the [NWPA],” S.Rep. No. 100-152, at 1 (Sept. 1, 1987), by passing the Nuclear Waste Policy Amendments Act of 1987 (1987 Amendments Act), Pub.L. No. 100-203, §§ 5001-5065, 101 Stat. 1330,1330 -227 to -255 (codified in scattered sections of the NWPA, 42 U.S.C. §§ 10101-10270 ). The Senate Committee on Energy and Natural Resources reported, in consideration this legislation, that, “[i]n the four and a half years since passage of the NWPA, it has become clear that the program laid out in the Act will take longer to complete than was anticipated and that completion will be at much greater cost.” S.Rep. No. 100-152, at 5 (Sept. 1, 1987). The Committee further reported that, “[i]n addition to cost and scheduling considerations,” a number of other circumstances have changed since passage of the NWPA, including the fact that, “as we approach major decision points in the nuclear waste program, there will be great potential for political opposition.” Id.
The 1987 Amendments Act directed DOE to characterize a single site — at Yucca Mountain in Nevada — for development of a permanent geologic repository and to terminate activities at all other sites. See 42 U.S.C. § 10172 (a). The 1987 Amendments Act also established the OfSee of the Nuclear Waste Negotiator to
attempt to find a State or Indian tribe willing to host a repository or [MRS] facility at a technically qualified site on reasonable terms and [to] negotiate with any State or Indian tribe which expresses an interest in hosting a repository or [MRS] facility.
Id. § 10242(a), (b)(2). In addition, the 1987 Amendments Act authorized the Secretary of Energy to site, construct and operate one MRS facility. Id. § 10162(b). However, the 1987 Amendments Act provided that “construction of [the MRS] facility may not begin until [NRC] has issued a license for the construction of a repository under section 115(d).” Id. § 10168(d)(1). This “linkage” between the MRS facility and the repository went “over and above what [DOE] had originally intended” and proposed to Congress. Tr. at 2659:9-11 (Kouts). Instead of simply linking waste acceptance at an MRS facility with receipt of construction authorization for a repository from NRC, as DOE had proposed, see DX 107 (March 1987 MRS Submission to Congress) at 27, DOE could not *362 begin construction of an MRS facility until a construction authorization for a repository was received, see Tr. at 2660:2-8 (Kouts). Moreover, unlike the 15,000 MTU limit for the MRS facility proposed by DOE, see DX 107 (March 1987 MRS Submission to Congress) at 27, the 1987 Amendments Act provided that “the quantity of [SNF] or [HLW] at the site of [an MRS] facility at any one time may not exceed 10,000 [MTU] until a repository under this [chapter] first accepts [SNF] or solidified [HLW].” 42 U.S.C. § 10168 (d)(3). Once a repository began to accept SNF or HLW, the 1987 Amendments Act provided that such quantity may never exceed 15,000 MTU, id. § 10168(d)(4); see Tr. at 2660:2-14 (Kouts); 474:18-475:14 (Bartlett).
7. Developments Among the Parties Regarding the MRS Facility, December 1987 Through June 1995
At trial, Dr. John W. Bartlett stated that the linkages set forth in the 1987 Amendments Act “[v]irtually made it impossible for the MRS to be effective,” because DOE “could not get it done in time and these limitations reduced its role, limited its role to provide flexibility in the operation of the system and to begin receipt from the reactors in a timely fashion.” Tr. 475:19-476:1 (Bartlett). Accordingly, although DOE did not attempt to remove the 10,000 MTU capacity limitation on an MRS facility, 28 its strategy during this period was to reach an agreement with the state hosting an MRS facility or with Congress that modified the schedule linkages of the MRS facility and the repository so that DOE could begin performance in 1998. Tr. at 2656:2-16, 2663:17-2664:2 (Kouts). Indeed, it appeared to DOE that removal or modification of the linkages was necessary because the expected startup date for a repository was moved again, from 2003 to approximately 2010. See PX 125 (1989 Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program) at vii (“In developing the revised schedule, the DOE was mindful that certain activities, such as the issuance of environmental permits by the State of Nevada and [NRC] review of the license application, are outside [of] the DOE’s control.”); Tr. at 2663:8-16 (Kouts, explaining the impact that the change in the repository start-up date from 2003 to 2010 had on the commencement of MRS operations: “[DOE] did not think it was still viable to get a construction authorization in 1998, and that was going to take several more years of time. As a result, the linkages to the MRS needed to be addressed and removed, if you will, if [DOE] was going to have an MRS facility available in 1998.”). In a report to Congress in November of 1989, DOE stated:
[T]he 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. Therefore, the DOE plans to work with ... Congress to modify the current linkages between the repository and the MRS facility and to embark on an aggressive program to develop an integrated MRS facility for spent fuel. The DOE believes that if the linkages are modified, it is likely that waste acceptance at an MRS facility could begin by 1998 or soon thereafter.
*363 PX 125 (November 1989 Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program) at x; see also Tr. at 2666:15-25 (Kouts, stating that, “[e]ssentially, ... [DOE] still wanted to meet its 1998 obligation ... under the [NWPA] and obligation under the contracts to begin accepting in 1998. The MRS facility was the only mechanism to do that. With existing linkages, that would not be possible. Therefore, [DOE] was signaling ... that it intended to work with Congress to modify those linkages so we could still meet our obligation in 1998.”).
Around this time, EEI and other groups representing the utilities agreed with DOE that an MRS facility with a schedule unlinked to the repository was essential in order for DOE to meet its obligation under the Standard Contract to begin accepting spent fuel from utilities by January 31, 1998. See Tr. at 374:13-23 (Mills). Within PG & E, on January 5, 1990, in a letter between executives J.D. Schiffer and George Maneatis, Mr. Schiffer wrote:
In November 1989, DOE filed its Report to Congress outlining the steps it plans to take to meet its commitments under the NWPA. In this report, DOE delayed the scheduled startup of a high-level waste repository until 2010, but stated that it plans to use [MRS] to meet the mandated 1998 date.
...
....
EEI is currently finalizing comments on the DOE’s report to Congress ..., and this document should applaud the reassessment of the program and the effort of DOE to meet its contractual responsibilities, but emphatically state that the industry is displeased with the progress to date by DOE and demand that effective oversight of the program be established.
DX 143 (January 5, 1990 letter from J.D. Shiffer, Vice President of Nuclear Power Generation, PG & E, to George Maneatis, President, PG & E) at 1-2; see also DX 155 (August 7, 1990 PG & E meeting notes) at 2 (“One part of DOE’s Civilian Radioactive Waste Management Program involves the development of a[n MRS] facility for spent fuel. DOE has indicated that this is how it intends to comply with the requirement (in the spent fuel Standard Contract) to begin accepting spent fuel in 1998.”). In addition, the meeting notes of an April 16, 1991 internal PG & E meeting on SNF/HLW issues, while acknowledging that the 1987 Amendments Act to the NWPA and the linkages place constraints on the use of an MRS facility “that could greatly reduce its usefulness,” state that “[t]he only apparent option that would allow DOE not to violate the Standard Contract would be the construction of a[n MRS] facility.” DX 148 (April 16,1991 PG & E meeting notes) at 4; see Tr. at 105:16-23 (Warner).
In September of 1991, DOE issued another Draft Mission Plan Amendment. PX 155 (1991 Draft Mission Plan Amendment). In it, DOE stated:
To achieve the objective of timely and adequate waste acceptance, we plan to develop an MRS facility that is to start waste acceptance in 1998. To make this possible, the President’s legislative package for the National Energy Strategy includes a provision to repeal the schedule linkages established in the Nuclear Waste Policy Amendments Act of 1987____This could also be achieved by congressional enactment of a negotiated siting agreement reached through the efforts of the Nuclear Waste Negotiator.
Id. at 18; see Tr. at 589:18-590:10 (Bartlett). The 1991 Draft Mission Plan Amendment set forth a projected waste acceptance schedule for the MRS facility in which DOE began receiving 300 MTU in 1998 and gradually ramped up to 875 MTU in 2001, a rate of acceptance per year that DOE maintained in this schedule until 2010, when the repository was projected to open. See PX 155 (1991 Draft Mission Plan Amendment) at 207. By 2010, the MRS was to begin accepting 1,800 MTU. Id. This schedule was “for planning purposes only,” id., and, as Christopher Kouts explained at trial, “it makes the assumption that the linkage on the construction authorization for the repository is removed ... so ... the MRS could operate starting in 1998 and receive spent fuel up to the 10,000- *364 ton limit,” Tr. at 2675:21-2676:5. DOE explained that these
plans are based on the statutory storage-capacity limits specified in the Amendments Act for an MRS facility sited by the Department of Energy: 10,000 [MTU] before the start of waste acceptance at the repository and 15,000 [MTU] at any time thereafter. This capacity would provide enough Federal storage, between the start of operations at the MRS facility and at the repository, to substantially reduce the need for utilities to add new storage capacity at existing facilities after 1998 and to be able to initiate the orderly decommissioning of reactors.
PX 155 (1991 Draft Mission Plan Amendment) at 19; see also Tr. at 2676:12-18 (Kouts, explaining that “[t]hose acceptance rates were based on a slow steady ramp-up to a steady state acceptance rate of 875 metric tons, and as you can see from the chart, the total amount would not have exceeded 10,000 metric tons until the repository was operational at that point projected in 2010”). 29 As is apparent, the acceptance schedule in the 1991 Draft Mission Plan Amendment — with its assumption of an unlinked MRS facility and a 10,000 MTU acceptance limitation until operation of a repository in 2010 — projected a significantly reduced spent fuel acceptance rate as compared to the 1985 Mission Plan, see supra Part I.A.6.C, and even the 1987 Mission Plan Amendment, see supra Part I.A.6.d.
On August 25, 1992, a strategic planning attachment to an internal PG & E memorandum approved by Gregory M. Rueger, Senior Vice President, Generation, and Chief Nuclear Officer at PG & E, see Tr. at 1715:10-16, 1729:21-1730:9, stated that “DOE plans to have a[n MRS facility] open for the temporary storage of spent nuclear fuel in 1998,” DX 226 (August 25, 1992 PG & E memorandum) at 2. Noting that “DOE will use the oldest fuel first concept in assigning priority for the acceptance of spent fuel at the repository or MRS,” id., the attachment states that “[c]urrent DOE projections indicate that the first allotment of [Diablo Canyon] spent fuel would be accepted in the 13th year of facility operation,” or “the year 2011 if [Diablo Canyon] spent fuel is shipped to a[n] MRS,” id. at 3. The attachment recommends that PG & E’s “[Nuclear Operations Support] continúen to participate in industry groups (e.g., ... EEI) that support DOE efforts toward establishing a[n] MRS or geologic repository.” Id.; see also Tr. at 1756:7-16 (Rueger, agreeing that PG & E actively supported the construction of an MRS facility, which would allow DOE to begin meeting its obligation to accept spent nuclear fuel from utilities); Tr. at 90:17-91:2 (Warner, agreeing that prior to this litigation, PG & E believed DOE could satisfy its contractual obligations by accepting spent fuel at an MRS facility beginning in 1998).
On December 17, 1992, the Secretary of Energy, Admiral James D. Watkins, wrote to the Chairman of the Committee on Energy and Natural Resources, J. Bennet Johnston, to summarize the Secretary’s “new strategy to provide SNF interim storage in 1998.” PX 177 (December 17, 1992 letter from Admiral James D. Watkins, Secretary of Energy, to the Honorable J. Bennett Johnston, Chairman of the Committee on Energy and Natural Resources (December 17, 1992 Secretary of Energy Letter)) at 1. The Secretary wrote:
The Office of the Nuclear Waste Negotiator, established under the NWPA as amended in 1987, has spent more than two years seeking a voluntary host and site for an MRS facility. That office has not been able to identify a viable candidate site that can be recommended to Congress by June 1993 and that will permit spent fuel receipt by January 1998 as planned. Thus, alternative actions are required.
Id. at 2; see Tr. at 477:23-478:7 (Bartlett); Tr. at 658:22-659:11 (Stuart). As explained by Dr. John W. Bartlett at trial, at this time, “It was recognized after two years of intense efforts by the negotiator that there was not going to be any opportunity for an independent facility of the kind that had been envi *365 sioned.” Tr. at 476:11-17 (Bartlett). Accordingly, the Secretary of Energy proposed an alternative “multiple purpose and standardized container system for spent fuel receipt, storage, transport and disposal,” PX 177 (December 17, 1992 Secretary of Energy Letter) at 2, in order “to meet the needs and expectations of the nuclear industry,” and to make available a disposal site “for use by January 1998,” id. at 3.
Although it may have been doubtful by 1992 that an MRS facility ready to accept utilities’ SNF and/or HLW by January 31, 1998 would be sited, DOE continued to attempt to site an MRS facility until approximately March of 1995. See Tr. at 2691:25-2692:1, 2693:3-11 (Kouts). On August 17, 1993, OCRWM issued a comprehensive study examining potential waste disposal program “throughput rates” (Throughput Rate Study), a term that refers to “the annual rate at which SNF is transported through the system, once operations commence.” PX 187 (August 17, 1993 OCRWM Throughput Rate Study) at i. The Throughput Rate Study found that “the preferred range of throughput rates is from 3000 MTU/yr to 4000 MTU/ yr.” Id. at ix; see Tr. at 496:13-497:10 (Bartlett). However, the Throughput Rate Study provided a “reference scenario for 3000 MTU/year,” PX 187 (August 17, 1993 OCRWM Throughput Rate Study) at ii, which projected annual acceptance rates under the assumption that an MRS facility would begin operation in 1998 with the 10,000 MTU limitation, a repository would begin acceptance in 2010, see id. at 2-1, and “assumed compliance with all provisions of the [NWPA] and the [1987 Amendments Act], except for the requirement that repository construction be licensed prior to construction of the MRS.” [“42 U.S.C. § 10168(d)(1) ] is assumed to be amended to remove (or modify) the linkage requirement,” id. at ii. The Throughput Rate Study described the acceptance rates under such circumstances:
[T]he first 12 years show the MRS ramp-up, which is 400 MTU/yr in 1998, 600 MTU/yr in 1999, and 900 MTU/yr for the following 10 years. In 2010, the MRS begins a 17-year campaign of accepting SNF at the full rate. This rate is approximately 2700 MTU/yr rather than 3000 MTU/yr because western reactors ship approximately 300 MTU/yr directly to the repository, starting in year 2010---- The MRS inventory grows to 10,000 MTU during the 12 ramp-up years and the ceiling increases to 15,000 MTU when the repository opens in 2010. The repository ramp-up is assumed to be 300, 600, 1200 and 2000 MTU/yr in 2010, 2011, 2012, and 2013, respectively.
....
The reference strategy assumes that SNF will be accepted and picked up on the basis of oldest-fuel first (OFF). First acceptance at the MRS will be in 1998.
Id. at 2-1 to -2; see also id. at ii (“In the past, a system throughput rate of 3000 MTU/yr has been assumed for planning purposes and for conceptual design of the major facilities in the Civilian Radioactive Waste Management System (CRWMS). That value was based on system assumptions different from those existing at this time.”); Tr. at 595:18-597:16 (Bartlett).
By 1995, as stated at trial by Christopher Kouts, DOE was “coming to the conclusion that[,] for a variety of reasons, ... it was unlikely that [DOE] w[as] going to obtain an MRS site.” Tr. at 2694:24-2695:2. Accordingly, at this time DOE was “beginning to focus all [its] efforts on just trying to implement the repository without trying ... to have an MRS facility in the system.” Id. at 2695:4-7, 2845:2-8 (Kouts); see also id. at 2695:9-11 (Kouts, stating that, in the 1995 time period, DOE was “coming to the conclusion that [an MRS facility] probably wasn’t going to happen”). However, as late as June 13,1995, it appears that PG & E continued to hope for timely deployment of an MRS facility. In a PG & E Management Committee Briefing Book from this date, presumably referring to the statutory linkages between an MRS facility and a repository, it states:
There are current legislative impediments that prevent building [an MRS] facility in an efficient manner. The House’s recently passed budget bill, however, funds development of a[n MRS] facility by 1998 and clearly signals that this is the desired course. Current legislation in Congress, if *366 passed, eliminates the current legislative implementation problems. With the current DOE fuel acceptance queue, however, Diablo Canyon fuel would not be shipped to DOE until 2012, even if the 1998 operation target is met.
PX 228 (June 13, 1995 PG & E Management Committee Briefing Book) at 5-6. To achieve its storage and eventual disposal goals, the Management Committee Briefing Book states, inter alia, that PG & E should “promot[e] the timely deployment of a[n MRS] system, including related cask and transportation systems.” Id. at 7; see Tr. at 1236:3-1237:16 (Womack).
The NRC has never licensed, and DOE has never constructed, an MRS facility authorized pursuant to section 10162(b) of the NWPA, subject to the licensing and construction requirements of section 10168 of the NWPA, and funded under the authority provided in section 10222(d) of the NWPA. See 42 U.S.C. §§ 10168 (b), 10168,10222(d); Commonwealth Edison II, 56 Fed.Cl. at 666 . Nor were the linkages set forth in the 1987 Amendments Act to the NWPA ever modified or removed. See 42 U.S.C. § 10168 (d). The evidence described in this section, Part I.A.7, of this Opinion indicates that DOE, EEI and PG & E all supported during this period a modification or removal of the linkages between the construction of an MRS facility and the construction authorization of a repository so that DOE could construct an MRS facility and avoid breaching its statutory and contractual obligation to begin accepting SNF and/or HLW from utilities by January 31, 1998. Moreover, the evidence reveals in particular PG & E’s view during this period that use by DOE of an MRS facility to collect utilities’ SNF and/or HLW could satisfy DOE’s statutory and contractual obligations. However, no evidence presented at trial indicates that DOE, EEI or PG & E believed during this period that if DOE operated under an acceptance schedule — beginning on January 31, 1998 — that complied with the 10,000 MTU limit on the MRS set by Congress in the 1987 Amendments Act, DOE would breach its statutory or contractual obligations under the NWPA or the Standard Contract.
8. DOE’s Issuance of Annual Capacity Reports and Acceptance Priority Rankings, 1987 Through 1991
Beginning in June of 1987, in compliance with the Standard Contract, see PX 54 (Standard Contract) at 10, Art. IV.B.5(b), DOE issued an Annual Capacity Report (ACR) for planning purposes, see PX 96 (June 1987 ACR). The 1987 ACR states that,
[beginning in 1991, the ACR acceptance ranking will be converted into an Annual Priority Ranking for receipt of NSF/HLW. In 1992, based on this priority ranking, the Purchasers will submit to DOE for approval, Delivery Commitment Schedules identifying the SNF/HLW that Purchasers propose to deliver to the DOE waste management system (WMS). Once approved, these schedules will become the basis for Final Delivery Schedules to be submitted by the Purchasers not less than 12 months before the date of DOE’s anticipated acceptance of title to the SNF/HLW and subsequent transport to a DOE facility.
Id. at 2; see Tr. at 2888:21-2890:4 (Kouts). The 1987 ACR then provides an “Illustrative Waste Acceptance Schedule for the First 10 Years of Facility Operation,” in which DOE begins accepting spent fuel from utilities in 1998 at a rate of 1,200 MTU/year, ramps up to 2,000 MTU in 2003, and ramps up again to 2,650 MTU/year from 2004 through 2007. See PX 96 (June 1987 ACR) at 7. This waste acceptance schedule is consistent with the schedule in the 1987 Mission Plan Amendment, which assumed repository startup in 2003, MRS facility startup in 1998 with a limited capacity of 15,000 MTU, and MRS facility acceptance (not construction) linked to receipt of construction authorization for a repository, compare id. with PX 97 (1987 Mission Plan Amendment) at 12-13, 61. DOE states that this schedule
is only an approximation of how the system may operate and is subject to the uncertainties that are recognized in the Mission Plan Amendment. DOE will further define and specify the system operating and waste acceptance parameters as the program progresses. The schedule will serves as a basis for planning and will be *367 updated annually consistent with the latest forecasts of waste disposal requirements.
PX 96 (June 1987 ACR) at 7.
The 1987 ACR then explains to utilities in detail DOE’s thoughts and intentions regarding the acceptance and disposal of utilities’ SNF and/or HLW under the Standard Contract:
DOE acknowledges that uncertainty with regard to the waste acceptance schedule and the integrated [waste management system (WMS) ] derives, in part, from decisions yet to be made by Congress____
DOE also recognizes that the development of procedures for effective and equitable implementation of the WMS is an iterative process that requires the cooperative efforts of both DOE and the Purchasers. DOE intends to work with the Purchasers ... to develop these procedures and to issue appropriate guidance to Purchasers for their use in planning for at-reactor storage and ultimate delivery of SNF/HLW to the WMS. This ACR is intended as a major step in that process.
DOE is required to accept all SNF and HLW for permanent disposal. However, since acceptance capacity is limited in any given year, a ranking or sequencing process is necessary for allocating available capacity....
....
The number of Purchasers whose Final Delivery Schedules may be accommodated in any given year will be constrained by the capacity of the WMS to accept SNF. The acceptance capacity available for allocation to the Purchasers will equal the system operating capacity, unless part of that operating capacity is used to accomodate contingencies, e.g., emergencies, the Contract’s 20 percent adjustment provision, and cask loading considerations. To the extent that such capacity would be needed, the remaining acceptance capacity available for allocation to Purchasers in any given year would be reduced....
....
Annual acceptance capacity is dependent on the annual receiving capacity of the WMS that is ultimately developed. The Standard [ ] Contract does not specify the annual acceptance capacity that will be available for allocation. Thus, the WMS acceptance schedule presented as the basis for the Acceptance Priority Ranking due in 1991 may differ from the illustrative waste acceptance schedule presented in this initial ACR....
....
In its proposal for the construction of an MRS facility, DOE has asked Congress to limit the MRS storage capacity to 15,000 MTU and to prohibit receipt of SNF at an MRS until [NRC] has authorized construction of the first repository. These provisions were requested to emphasize that the MRS facility is an integral part of the WMS and is not intended to become a substitute for a permanent repository. If Congress adopts the DOE-proposed provisions, and if the NRC authorization to construct a repository is not received by the time the MRS facility becomes operational, the WMS would be unable to accept any SNF in 1998. Under such circumstances, the current DOE position, as stated in the Mission Plan Amendment, is that utilities will continue to be responsible for storing their SNF.
Id. at 3-14.
DOE continued to issue ACRs in the years subsequent to 1987. See, e.g., PX 112 (June 1988 ACR); PX 140 (December 1990 ACR); PX 158 (December 1991 ACR). The 1987 Amendments Act to the NWPA, as well as the delayed startup of a repository until at least 2010 as was projected in the 1989 Report to Congress, see PX 125 (November 1989 Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program) at vii, had a significant effect on the waste acceptance schedule projections provided by DOE in its ACRs. As explained in the 1988 ACR, the provisions in the 1987 Amendments Act linking construction of an MRS to construction authorization of a repository made “operations of and waste acceptance at a DOE facility significantly before 2003 unlikely.” PX 112 (June 1988 ACR) at 7. Moreover, the 1987 Amendments Act limited the capacity of an MRS to 10,000 *368 MTU until operation of a repository, and then 15,000 MTU thereafter. See 42 U.S.C. § 10168 (d).
Accordingly, by December of 1991, the projected waste acceptance schedule in the ACR issued that year by DOE proposed significantly reduced acceptance rates as compared to those proposed in 1987, beginning acceptance in 1998 at 400 MTU, ramping up to 600 MTU in 1999, and then accepting spent fuel at a rate of 900 MTU/year from 2000 through 2007. See PX 158 (December 1991 ACR) at 5. The total MTUs projected to be accepted by DOE in the first ten years of the program was therefore 8,200, which “would ... not exceed the 10,-000 [MTU] limit that was contained in the conditions under which an MRS could operate as imposed by the [1987 Amendments Act].” Tr. at 2684:10-15 (Kouts); accord, 2914:21-24 (Pollog). Moreover, in order to assume acceptance beginning in 1998 as required by the Standard Contract, the 1991 ACR acceptance rates “do not reflect the MRS facility schedule linkages with the repository development that were imposed by the NWPA.” PX 158 (December 1991 ACR) at 4; see Tr. at 2681:19-2682:11 (Kouts). 30 The 1991 ACR states: “Under current conditions [in which DOE accepts only 8,200 MTU in an MRS facility in the first ten years of operations], the owners and generators of SNF will continue to be responsible for storing their spent fuel until acceptance by DOE.” PX 158 (December 1991 ACR) at 4-5; see also PX 112 (June 1988 ACR) at 4 (“Under current conditions, the owners and generators of SNF will continue to be responsible for storing their spent fuel until acceptance by DOE.”); PX 140 (December 1990 ACR) at 5 (stating same).
The December 1991 ACR was issued with an Acceptance Priority Ranking (APR), see DX 197 (DOE memorandum with attached 1991 APR), a draft of which was submitted to utilities in May of 1991, see DX 179 (PG & E memorandum with attached 1991 draft APR). PG & E recognized that the APR was “the first step in setting the schedule for receiving Spent Fuel at the DOE Spent Fuel Disposal facility when it opens.” Id. at 1; see also id. at 2 (May 24, 1991 letter from Dr. John W. Bartlett, Director, OCRWM, to Richard A. Clarke, Chairman and CEO, PG & E stating that “[t]he APR details the order in which the Department will allocate Federal waste acceptance capacity to SNF owners and generators. As required by the [Standard] Contract, the priority ranking is based on the age of permanently discharged SNF, with the owners of the oldest SNF given highest priority.”); Tr. at 1448:14-1450:9 (Stock).
Upon reviewing the 1991 draft APR, PG & E determined that it wanted to reclassify an allocation of its Humboldt Bay spent fuel from an allocation with a discharge date of January of 1984, see DX 179 (PG & E memorandum with attached 1991 draft APR) at 19, the date it finally removed its “in-core” fuel from the Humboldt Bay reactor core, to an allocation that had a discharge date of July 1976, the date that Humboldt Bay ceased operations, see PX 169 (May 18, 1992 letter from William C. Stock, Director of Nuclear Fuel Management, PG & E to Michael J. Detmer, Contracting Officer, DOE requesting reclassification of 1984 spent fuel allocation); Tr. at 1453:2-14 (Stock); see also supra Part I.A.5. Receiving an earlier discharge date would move this spent fuel allocation higher in the queue for acceptance by DOE, thereby placing all of Humboldt Bay’s spent fuel acceptance allocations in consecutive years towards the beginning of DOE’s spent fuel acceptance. See Tr. at 1453:2-14 (Stock); DX 210 (April 22, 1992 PG & E Meeting Announcement) at 2. As explained by William C. Stock in a letter to DOE: “Had PG & E known in 1983 [that Humboldt Bay] would not be restarted as had been planned, PG & E would have paid the entire” one-time fee including payment *369 for this “in-core” fuel at Humboldt Bay at that time. PX 169 (May 18,1992 letter from William C. Stock, Director of Nuclear Fuel Management, PG & E to Michael J. Detmer, Contracting Officer, DOE requesting reclassification of 1984 spent fuel allocation); see supra Part I.A.5. Accordingly, PG & E proposed to pay DOE an additional $667,457.28, plus interest accrued from June 30, 1985 (totaling approximately $1.2 million) to June 28,1996, in order to reclassify this remaining spent fuel allocation and receive an earlier acceptance date for the allocation. See Tr. at 1463:3-18 (Stock); 1474:13-1475:15 (Stock); PX 200 (May 12, 1994 letter from DOE to William Stock) at 1. DOE accepted PG & E’s proposal. See PX 200 (May 12, 1994 letter from DOE to William Stock) at 1; DX 198 (January 23, 1992 Spent Fuel Working Group Memorandum) at 1; Tr. at 1476:12-1477:17 (Stock). The December 1991 APR reflects this change in classification of PG & E’s Humboldt Bay allocation, see generally DX 197 (DOE memorandum with attached 1991 APR), as does the December 1991 ACR, see PX 158 (December 1991 ACR) at 9, both of which were issued before PG & E’s 1996 payment, see Tr. at 1475:2-11 (Stock).
In the 1991 ACR, DOE provides a Summary of Purchasers’ Annual Allocations for the first ten years of spent fuel acceptance. See PX 158 (December 1991 ACR) at 9. DOE precedes this annual allocation summary with the following explanation:
DOE is required to accept for disposal all commercial SNF/HLW from owners or generators, as prescribed by the NWPA. However, since acceptance capacity will be limited in any given year, an acceptance priority ranking is established in the Standard Contract to allocate the projected acceptance capacity to individual Purchasers. The ranking is based on the date the SNF was permanently discharged, with the owners of the oldest SNF, on an industry-wide basis, given the highest priority. Tables in Appendix A list the Purchasers’ annual allocations for each of the first ten years of projected [federal waste management system] operation....
....
A summary of Purchaser allocations is presented in Table 3.1 These allocations are the basis for DCS submittals. Among other things, the DCS identifies the range of discharge dates from which the SNF will ultimately be selected for delivery----
The information contained on the Purchasers’ approved DCSs will assist DOE in implementing the waste acceptance process. Approved DCSs will be the basis for the Purchasers’ [Final Delivery Schedules], to be submitted twelve months prior to delivery. As provided in Article V of the Standard Contract, the Purchasers also have the right to exchange approved DCSs with other Purchasers, subject to DOE approval.
Id. at 6-8.
The annual allocation summary in the 1991 ACR provides that, based on the acceptance rates reviewed above (with the linkage between construction of an MRS facility and repository construction authorization removed but the 10,000 MTU limit in place) for each of the first ten years of acceptance, and the allocated discharge dates in the 1991 APR, DOE will accept 7.2 MTU of spent fuel from PG & E’s Humboldt Bay for disposal in an MRS facility in 1998, 6.1 MTU in 1999, 2.6 MTU in 2000, and 13.0 MTU in 2001. Id. at 9. Added together, the 1991 annual allocation summary projects that 28.9 MTU of SNF and/or HLW will be accepted by DOE from Humboldt Bay in the first four years of DOE’s acceptance at an MRS facility beginning on January 31, 1998. See id. According to Thomas E. Pollog, this amount represents the total amount of SNF and/or HLW held by PG & E at Humboldt Bay. Tr. at 2922:15-18 (Pollog).
In contrast with Humboldt Bay spent fuel, the annual allocation summary in the 1991 ACR does not provide for acceptance of any SNF and/or HLW from Diablo Canyon in the first ten years of DOE’s acceptance. See id.; DX 197 (DOE memorandum with attached 1991 APR) at 4-34 (1991 APR not listing any Diablo Canyon allocations as falling within the first ten years of acceptance, as calculated using the 1991 ACR acceptance rates for the first 10 years of MRS facility acceptance *370 totaling 8,200 MTU); 31 Tr. at 1194:18-1195:5 (Womack); Def.’s Memo, at 27 n. 9. This is because Diablo Canyon spent fuel is relatively new as compared to Humboldt Bay spent fuel, compare DX 197 (DOE memorandum with attached 1991 APR) at 25 (first Diablo Canyon acceptance allocation with discharge date of August 29, 1986) with id. at 8 (last Humboldt Bay acceptance allocation with discharge date of July 3, 1976); therefore, under the “oldest fuel first” scheme set forth in the Standard Contract, see PX 54 (Standard Contract) at 10, Art. IV.B.5(a) (“[P]riority ranking shall be based on the age of SNF and/or HLW as calculated from the date of discharge of such material from the civilian nuclear power reactor. The oldest fuel or waste will have the highest priority for acceptance .... ”), Diablo Canyon spent fuel has an allocation much further back in the acceptance queue than does Humboldt Bay spent fuel, see Tr. at 2920:21-2921:23 (Pollog); see also PX 228 (June 13,1995 PG & E Management Committee Briefing Book) at 2 (“Humboldt Bay’s fuel is among the oldest in the industry and would be shipped to the repository soon after it is opened. Because Diablo Canyon began operating late compared to other nuclear power plants, its fuel will not begin to be accepted by the federal government until at least 14 years after the first operation of a DOE storage or disposal facility.”); PX 185 (August 1993 PG & E Preliminary Evaluation of Spent Fuel Storage Technologies for Diablo Canyon Power Plant) at 2 (“The DOE hopes to begin operating a[n MRS] for [SNF] by 1998. Even if the MRS opens as scheduled, no [Diablo Canyon] fuel is scheduled to be shipped before 2013 ... due to the facility’s limited acceptance rate and [Diablo Canyon] fuel’s priority ranking within the industry.”).
A December 20, 1991 memorandum drafted by Ronald A. Milner, Associate Director for Storage and Transportation, OCRWM, and approved by Dr. John W. Bartlett, Director, OCRWM, states:
The 1991 ACR differs from previously published ACRs for two reasons. First, while the information in the ACR has traditionally been used for planning purposes only, the allocations in the 1991 ACR will also serve as the basis for submission of Delivery Commitment Schedules (DCS) by the Contract holders. These DCSs, which will provide planning information for waste acceptance activities, may be submitted to [DOE] as early as January 1,1992.
Second, ____ [although no annual waste acceptance rate has been baselined, the 1991 ACR uses a single acceptance rate that is very similar to the lower bounding rate in the 1990 ACR. While not stated in the ACR, this rate was selected because it is theoretically sufficient to eliminate, in the aggregate, the need for additional at-reactor, out-of-pool storage starting in 1998.
DX 195 (December 20, 1991 DOE memorandum) at 1-2; see Tr. at 578:4-580:2 (Bartlett). Around the time of the issuance of the 1991 ACR/APR, PG & E recognized that it would be completing “[o]ne DCS form ... for each allocation of fuel described in the 1991[ACR] published by DOE,” DX 192 (December 11, 1991 PG & E internal memorandum) at 1, and that, in the future, “additional DCS forms will be filed in the same manner as ... [APR]s add allocations for Diablo Canyon,” id. at 2.
9. PG & E’s Submission of Delivery Commitment Schedules
In accordance with the parties’ understanding of the mechanism in the Standard Contract by which eventually a firm spent fuel acceptance schedule would be created, see PX 158 (December 1991 ACR) at 8; DX 179 (PG & E memorandum with attached 1991 draft APR) at 1; DX 192 (December 11, 1991 PG & E internal memorandum) at 1; DX 193 (December 13,1991 PG & E internal memorandum) at 2, on August 24, 1992, PG & E submitted to DOE DCSs for its Humboldt Bay spent fuel allocations for the first *371 four years of acceptance by DOE, see DX 224 (August 24, 1992 PG & E DCSs) at 1 (“Enclosed are the [DCSs] for the [Standard Contract. The four years identified are the only shipments allocated to [PG & E] based on DOE’s December 1991 [ACR] and [APR]____ It is PG & E’s understanding that you will not process any more DCS submittals for any other PG & E fuel assemblies at this time.”). 32 The minutes of a PG & E meeting taking place one week later state:
[DCS] Forms for allocations of [SNF] to be accepted by DOE in 1998 were submitted last week. Under the present ranking system, all Humboldt Bay spent fuel will be accepted by DOE four years after a spent fuel storage or disposal facility is available. The first allotment of [Diablo Canyon] spent fuel will be accepted 13 years after a facility is available. While utilities can sell their allotments, the general lack of storage capacity by utilities makes such sales seem unlikely.
DX 232 (Minutes of August 31, 1992 Spent Fuel Storage Action Plan Workshop) at 3.
On November 24, 1992, after making revisions to the DCSs because they were submitted with minor errors, see Tr. at 1492:22-1493:23 (Stock), PG & E resubmitted the four DCSs for its Humboldt Bay spent fuel allocations, see DX 235 (November 24, 1992 PG & E DCSs). Each DCS indicates a “Proposed Shipping Mode” of “Truck,” rather than “Rail” or “Barge,” 33 and under “Type Cask Required,” each DCS lists a maximum loaded lifting weight of “25 Tons.” 34 Id. at 2-5. In accordance with the 1991 ACR and 1991 APR described above, under “Metric Tons Uranium,” to be delivered to DOE, the DCS for “1998 (year 1)” lists 7.249 MTU, id. at 2, the DCS for “1999 (year 2)” lists 6.085 MTU, id. at 3, the DCS for “2000 (year 3)” lists 2.585 MTU, id. at 4, and the DCS for “2001 (year 4)” lists 13.023 MTU, id. at 5. 35
*372 On March 18, 1993 DOE wrote PG & E to inform it that DOE had approved PG & E’s DCSs. See DX 242 (March 18, 1993 DCS approval letter with attached approved DCSs). Each DCS, for the years 1998 through 2001, received signatures of approval from DOE. See id. at 2-5. After further correspondence with DOE in the following year, see DX 361 (October 6,1995 letter from DOE to PG & E reflecting previous correspondence) at 1, which instructed PG & E to revise sightly the total MTUs in the 1998 through 2001 DCSs for the Humboldt Bay spent fuel allocations, PG & E again submitted these DCSs — with slightly revised yet substantially the same MTUs — on June 17, 1994, see DX 272 (June 17, 1994 Revised DCSs); Tr. at 1507:5-1508:19 (Stock). Finally, on October 6, 1995, “[i]n order to maximize PG & E Delivery Commitments,” DOE reinstated as previously approved two of the DCSs submitted by PG & E in 1992, and approved two of the DCSs submitted by PG & E in 1994. See DX 361 (October 6, 1995 DCS approval letter with attached approved DCSs) at 1. These final approved DCSs were substantially the same as those described above and continued to envision pickup of all of the spent fuel at Humboldt Bay, approximately 28.9 MTUs, by 2001, or “year 4,” of DOE acceptance of spent fuel beginning in 1998. See id. at 1, 3; Tr. at 1192:25-1194:5 (Womack). However, PG & E’s approved DCSs never formed the basis for FDSs as was envisioned by the Standard Contract and the 1991 ACR, see PX 54 (Standard Contract) at 11-12, Art. V.C; PX 158 (December 1991 ACR) at 8, because the parties never reached the FDS submission or approval stage.
10. 1994 DOE Notice of Inquiry, PG & E’s Response, and 1995 DOE Final Interpretation of Nuclear Waste Acceptance Issues
On May 25, 1994 DOE issued a Notice of Inquiry on Waste Acceptance Issues (1994 Notic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6655348. Public record. Not legal advice.