# Yankee Atomic Power Co. v. United States

> United States Court of Federal Claims · September 7, 2010 · 94 Fed. Cl. 678

URL: https://www.frixlaw.com/law-library/cases/6661227

## Case

- **Full name:** YANKEE ATOMIC POWER COMPANY v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** September 7, 2010
- **Citations:** 94 Fed. Cl. 678; 2010 U.S. Claims LEXIS 672; 2010 WL 3543420
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Merow
- **Judges:** Merow
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6661227

## How later opinions describe it (automated extraction)

- holding that “[i]n [the] non-breach world, the Yankees’ dry storage costs would have been zero because dry storage would not have been built,” and noting that the Federal Circuit affirmed the “reasonableness and foreseeability” of the dry storage costs in Yankee Atomic, 536 F.…
- stating that “historically, Maine Yankee maintained [full core reserve]” and analyzing damages for re-rack based on utility’s ability to maintain full core reserve and willingness to drop below it for a short period of time

## Opinion text

OPINION 1
MEROW, Senior Judge.
In Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed.Cir.2008) (‘‘Yankee II ”) the United States Court of Appeals for the Federal Circuit affirmed-in-part and reversed-in-part this court’s findings and conclusions in Yankee Atomic Electric Co. v. United States, 73 Fed.Cl. 249 (2006) (“Yankee I ”). The Court remanded the case, requiring a reassessment of causation using the 1987 Annual Capacity Report (“ACR”) acceptance rate for the reraeking and dry storage costs awarded to plaintiffs. Remand proceedings, including briefing and oral argument, are completed.
Familiarity with the development of the Standard Contract between the government and nuclear utilities, and the firmly-established government liability for partial breach, is presumed. Me. Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed.Cir.2000). 2 In the initial six-week trial on damages held in August of 2004, the Yankees 3 *684 presented both past and future costs of mitigating and providing a substitute performance for the contract services the government failed to supply. After trial covering both past and future costs, but before the Opinion was issued, the ruling in Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed.Cir.2005) confined partial breach claims under the Standard Contract to past but not future expenses. Supplemental briefing in Yankee I served to segregate future costs, thus limiting the Opinion to actual costs incurred for Yankee Atomic and Connecticut Yankee through 2001, and through 2002 for Maine Yankee.
In Yankee 1, Yankee Atomic was awarded $32,863,366 — the amount spent to build dry storage — an independent spent fuel storage installation (“ISFSI”) that the court found would not have been built and the costs incurred if the government had timely performed its contract obligation to remove spent nuclear fuel (“SNF”) and high-level waste (“HLW”) at any reasonable acceptance rate. Connecticut Yankee was awarded $8,350,893 for reracking its wet pool to increase storage capacity and $25,803,986 for ISFSI construction as neither the project nor the costs thereof would have been necessary if the government had timely performed at any reasonable removal rate. Maine Yankee was awarded $10,069,018 in reracking costs and $65,705,536 in ISFSI construction expenses which would not have been incurred had the government performed its contractual removal obligations. Yankee I, 73 Fed.Cl. at 326 . The court rejected the government’s position that Greater-Than-Class-C radioactive waste (“GTCC”) was not covered by the Standard Contract so that its presence would have required the Yankees to build dry storage for it in the non-breach world, and the ISFSI costs, or some portion of the costs, would have been incurred in any event. Id. at 312-15 . The court also rejected as premature the government’s proposed offset for Maine and Connecticut Yankees’ Nuclear Waste Fund (“NWF”) fees that, under the terms of the Standard Contract, are not due to be paid until DOE first begins to remove the utilities’ SNF. Id. at 325 .
On appeal to the Federal Circuit, the government argued that: (1) the Yankees failed to establish a realistic non-breach world against which to determine whether actual costs would have been incurred regardless of breach; (2) the awards of pre-breach rerack-ing costs to Maine Yankee and Connecticut Yankee incurred prior to January 31, 1998, conflicted with Indiana Michigan, their decisions to rerack were not caused by DOE’s announced delays and were not reasonable; (3) the Standard Contract was wrongly construed to include removal of GTCC; and (4) deferred NWF fees should have been deducted from costs awarded to Maine Yankee and Connecticut Yankee.
The Yankees responded that the court did make non-breach world findings, concluding that if DOE had performed at any reasonable rate, the dry storage and reracking costs awarded would not have been incurred; pre-breach reracking costs were properly awarded; there was no error in construing the Standard Contract to encompass GTCC; the parties intended that the Yankees’ GTCC would be removed with their SNF; and the NWF fees not due until DOE first performs were deferred, not avoided costs.
Yankee II confirmed that DOE’s failure to begin performance prior to January 31,1998, was a partial breach of contract, and addressed the award of damages for incremental costs, affirming Yankee I’s findings on foreseeability, reasonable certainty and the use of the substantial causal factor standard to determine causation for those costs, 536 F.3d at 1272-73 . Yankee I's conclusion that the NWF fees of Maine Yankee and Connecticut Yankee were not appropriate deductions from damages, but would be due when DOE first arrived at the respective utility site and removed SNF, was also affirmed. This court was instructed on remand to apply the 1987 ACR acceptance rates to assess causation for the ISFSI and reracking costs awarded. These costs are compared with hypothetical non-breach world costs avoided because of the breach, to determine the net or incremental costs caused by the government’s partial breach. “Without record evidence about the Yankees’ condition with full Government performance, the Court of Fed- *685 era] Claims could not perform the necessary comparison between the breach and non-breach worlds and thus could not accurately assess the Yankees’ damages.” Id. at 1273 (citations omitted). “ICjausation for the Yankees’ storage expenditures depended on some comparison of the contractually-defined hypothetical world to the expenses actually incurred.” Id. at 1274 .
The Federal Circuit in a second SNF ease issued on the same day as Yankee II, selected the non-breach world, concluding that the 1987 ACR 4 process “provides the best available pre-breach snapshot of both parties’ intentions for an acceptance rate.” PG & E v. United States, 536 F.3d 1282, 1292 (Fed.Cir. 2008) (“PG & E II”). In PG & E II, the Federal Circuit rejected the 1991 ACR acceptance rate advanced by the government because it was “tainted” by the impending breach. Id. (explaining that “[ajfter the 1987 Amendments Act, breach became highly likely or inevitable because of the strict linkage requirements. Later ACS reports became tainted by the impending breach and even impending litigation strategies.”). By 1991, “DOE’s timely performance of its full contractual obligations had, by then, already become a distant possibility.” Id. at 1291 . Instead, the Federal Circuit instructed that: “Ltjhe most accurate picture of the parties’ intent for this contract is their conduct at a time when both parties still anticipated timely and full performance of the contract,” id. at 1290-91 , and in 1987, for the most part, “both the DOE and the nuclear utilities realistically expected that DOE would accept SNF/HLW on schedule.” Id. at 1291 . Accordingly, consideration of post-contract formation conduct and intentions is appropriate.
Because this court relies on this post-formation conduct to interpret the contract itself, the most accurate picture of the parties’ intent for this contract is their conduct at a time when both parties still anticipated timely and full performance of the contract. See Julius Goldman’s Egg City v. United States, 697 F.2d 1051, 1058 (Fed.Cir.1983) (per curiam) (“A principle of contract interpretation is that the contract must be interpreted in accordance with the parties’ understanding as shown by their conduct before the controversy.” (citing Macke Co. v. United States, 199 Ct.Cl. 552 , 467 F.2d 1323, 1325 (1972))); Macke, 467 F.2d at 1325 (“[HJow the parties act under the arrangement, before the advent of controversy, is often more revealing than the dry language of the written agreement by itself.”).
PG & E II, 536 F.3d at 1290-91. See also Yankee II, 536 F.3d at 1278 (citing post-contracting evidence of the parties’ actions and intentions).
The court concludes that in the non-breach world of full government performance at the 1987 ACR removal rates, neither Yankee Atomic, Maine Yankee nor Connecticut Yankee would have built dry storage, and neither *686 Maine Yankee nor Connecticut Yankee would have reracked. Accordingly, the breach world mitigation costs awarded and affirmed as to reasonableness and foreseeability in Yankee II would not have been incurred in this non-breach world, and their award to the respective Yankees as modified in this Opinion, would not place them in a better position than if the government had not partially breached. Other matters raised by the parties, assertedly beyond the scope of the mandate, are separately addi’essed.
I. Background
From prior opinions in this matter familiarity with the historical and statutory background of the government’s responsibility for SNF disposal is presumed. Briefly, nuclear fuel in the core of civilian nuclear power reactors eventually becomes relatively inefficient for producing heat to create the steam that powers the turbines to generate electricity. About every eighteen months, some of the fuel assemblies that contain the nuclear fuel are removed from the reactor core and placed in a specialized spent fuel pool filled with treated water. New fuel is placed in the reactor.
Spent fuel pools are equipped with racks that hold submerged assemblies in vertical sleeves. When constructed, the Yankees’ wet pools were sized to hold a relatively limited number of assemblies for temporary storage pending removal for reprocessing. Yankee Atomic I, 73 Fed.Cl. at 252 . After reprocessing was banned, necessary refueling caused spent fuel pools to approach maximum storage capacity. With regulatory approval, the storage capacity of a wet pool can be increased by “reracking” — replacing original racks with higher density arrays. Id. Through spent fuel management and technological advances, the number of fuel assemblies removed as spent has decreased and refueling intervals have increased, both of which extend the time before a pool reaches capacity. If a nuclear power plant does not have space in its pool to discharge spent fuel from the core, the plant can no longer produce power. Generally, alternative power from non-nuclear sources is more costly.
Ml three Yankees are shut-down plants. Their reactors and SNF wet pools have been dismantled and the sites remediated. Ml that remains on the three sites are their “dry” storage facilities — the ISFSIs. The ISFSIs hold enormous concrete casks placed on an approximately 225 feet by 86 feet, 2-foot thick concrete pad. Yankee I, 73 Fed. Cl. at 285 n. 39. Record evidence speaks to the efforts undertaken to construct ISFSIs, acquire casks to store the SNF safely and transfer SNF from the pool to the ISFSI, all of which requires regulatory approval and oversight. ISFSIs are expensive to construct and load with SNF. This process requires a substantial diversion of the utilities’ internal labor. While dry storage has significant upfront and loading costs, once completed, dry storage is relatively passive with lower operation and maintenance (“0 & M”) costs. Accordingly, dry storage becomes a less costly alternative to wet pool storage the longer the anticipated storage period. The length of storage time contemplated prior to DOE’s actual commencement of SNF removal was a substantial factor in the Yankees’ decisions to build dry storage. Yankee I, 73 Fed.Cl. at 293, 294-95 .
As shut-down plants, the Yankees differ materially from most other utilities in pending SNF cases. While operating reactors require ever-increasing storage space for SNF removed from the reactor and replaced with fresher, more efficient fuel, shut down plants have fixed amounts of SNF to store; accordingly, for storage options consideration is given to 0 & M costs as opposed to increasing storage space.
II. Causation for dry storage costs awarded
The government concedes that certain costs awarded in Yankee I are incremental— that is some of the costs the Yankees spent in the breach world would not have been spent in the non-breach world with full DOE performance at the removal rates of the 1987 ACR. The government contends that Yankee Atomic would have built a smaller ISFSI and loaded fewer casks at a cost of $20,539,604, which subtracted from the $32,866,088 in awarded breach world ISFSI and cask costs, *687 results in conceded incremental damages for Yankee Atomic of $12,326,484. (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 123.)
The government asserts that Connecticut Yankee would have built a smaller ISFSI and purchased and loaded fewer casks, at a cost of $11,168,449, which subtracted from the $34,154,879 in breach world ISFSI and cask costs, and after subtracting $709,837 in AFUDC expenses included in that amount (a reduction advocated initially on remand as discussed hereinafter), results in conceded incremental damages for Connecticut Yankee of $22,276,593. (Id.)
The government hypothesizes that Maine Yankee would have built a smaller ISFSI and purchased and loaded fewer casks, at a cost of $34,906,066, which subtracted from the $75,774,554 in actual ISFSI costs in the breach world awarded in Yankee I, and after deducting $10,069,018 in reracking costs included in the award in Yankee I (but which the government contends Maine Yankee would have incurred in this non-breach world) results in conceded net or incremental damages of $30,799,470. (Id.)
In sum, on remand, the government admits that with the Yankees’ removal allocations in the 1987 ACR, total aggregate incremental damages are $65,402,547. (Id.)
Relying at least in part on the expert opinion of Mr. Frank Graves, the Yankees contend that in the non-breach world they would have increased their 1987 ACR removal allocations using the Standard Contract’s exchanges provision, and by doing so would have emptied their pools in a relatively short period of time, would not have built dry storage and would not have reracked. As no dry storage costs or reraeking costs would have been incurred in the non-breach world, the Yankees conclude, the dry storage costs awarded in Yankee I, the foreseeability and reasonable certainty having been affirmed, were and are appropriate, and awards of those amounts would not place them in a better position than if the breach had not occurred.
The government disagrees, arguing vigorously that the Yankees’ exchange-based non-breach world is speculative and not consistent with the Standard Contract.
a. DOE added the exchanges provision to the Standard Contract at the utilities’ request
A contract provision to allow utilities to exchange DCSs was added by DOE following the February 4, 1983 publication of a proposed form contract in the Federal Register and a brief comment period. 5 (PX 31 at 1.) DOE’s Memorandum approved by Energy Secretary Donald Paul Hodel on April 11, 1983, contemporaneously with contract formation, reported that DOE acceded to the utilities’ request for “exchange” rights.
The majority of the utilities commented that they should have “exchange” or “swapping” rights to ship their SNF and/or HLW to our repository. After consideration, aside from some complex record keeping, this poses no great problem to us, and consequently, we have accepted this suggestion. It will require our approval, and we intend to be reasonable.
(PX 30, Tab D at ZAB-001-0899.)
The Exchanges section provides:
Purchaser 6 shall have the right to exchange approved [DCSs] with parties to other contracts with DOE for disposal of SNF and/or HLW; provided, however, that DOE shall, in advance, have the right to approve or disapprove, in its sole discretion, any such exchanges.
48 Fed.Reg. 16590-01, 16601 (April 8, 1983) (footnote added).
The published commentary to the final contract explained that this provision was added because of numerous comments to the published initial draft, to allow utilities flexibility in managing their spent fuel inventory. It was one of the few comments adopted by DOE.
This new provision allows Purchasers to exchange DOE-approved delivery commitments with one another, subject to DOE approval. While this procedure will allow *688 the Purchaser greater flexibility in arranging its inventory of spent fuel and delivery thereof, all SNF and/or HLW to be delivered must comply with the requirements of the contract regarding acceptability. 7
Id. at 16592 (footnote added).
The Federal Circuit noted that “[t]he Standard Contract also included provisions setting priority for acceptance of waste (generally through an oldest fuel first (OFF) scheme) and allowed utilities to swap approved delivery commitment schedules (the Exchanges provision).” PG & E II, 536 F.3d at 1285.
b. Expert opinion of economist Frank Graves
Relying in part on exchanges, economist and expert witness, Mr. Frank Graves, 8 who testified at the original and remand trials, analyzed the Yankees’ allocations under the 1987 ACR and the inter- and intra-utility markets for approved DCSs that would have developed in the non-breach world. Mr. Graves concluded that utilizing exchanges, including buying and selling allocations, each of the Yankees would have removed all of their SNF and HLW from their wet pools in the first ten years of DOE’s performance. In the non-breach world, Yankee Atomic’s pool would have been empty by 1999; Connecticut Yankee’s by 2002; and Maine Yankee’s by 2004. (Rem. Tr. [1001] 72:3-13 (Graves).)
Under the Standard Contract, a utility would receive an allocation for each year in weight (metric tons of uranium (“MTIJ”)) and number of assemblies. This allocation was obtained from an industry-wide ordinal ranking of SNF by age, based on the date of discharge of that weight and number of assemblies from the reactor. The allocation was set forth on an oldest fuel first (“OFF”) basis. From publieally available data, many utilities that either had enough room in their wet pool for additional SNF or for other reasons would not face a need for immediate removal of SNF could be identified. Instead of exercising its allocations, the utility could sell or “exchange” allocations it obtained by having old SNF to other utilities that did not have sufficient pool space and consequently, were facing substantial costs to build dry storage to accommodate SNF in excess of the utility’s storage capacity. To avoid dry storage cost this “must move” SNF would provide the incentive for the utility to buy an early removal allocation from another utility. Thus, through exchanges of approved allocations, a utility seeldng to avoid the costs of additional SNF storage could advance its place in the queue and accomplish that goal.
It is likely that revenue from an allocation market which could reduce costs to the benefit of ratepayers, would be attractive to utility regulators and consumer advocacy groups, and a market would have developed in the non-breach world with full government performance at the 1987 ACR rates. The tension or interaction in the non-breach world between the potential cost avoidance of utilities facing additional storage needs, and possible revenue realization potential for utilities *689 that had more than sufficient room, would have created this market for purchase and sale of allocations. The court credits testimony of utility preference for creative markets, a factor noted by Mr. Graves and supported by witness testimony. (Rem. Tr. L1001J 80:19-80:8 (Graves); 258:19-259:16 (Davis); 9 [1005] 45:11-47:05 (Thomas) 10 (describing inter-utility cooperation to save costs, coordination of timing of outages and sharing equipment).) 11 See 73 Fed.Cl. at 303-06 (discussing witness testimony, evidence and case law recognition of robust inter-utility markets in regulatory-based environments).
Mr. Graves’ expert opinion on exchanges was twice recently credited as support for conclusions that in the non-breach world of the 1987 ACR rates with exchanges, those nuclear utilities would have emptied their spent fuel pool in 1998 and avoided dry storage costs expended in the breach world. In PG & E III, the court ruled:
On remand, the Federal Circuit instructed this court “to calculate the damages owed to PG & E lor DOE’s partial breach of the Standard Contract on th[e] basis [‘that the Standard Contract required DOE to accept SNF/HLW in accordance with the 1987 ACLS] process’].” PG & E II, 536 F.3d at 1292. In the court’s view, the establishment of the rate of acceptance and the admonition to consider evidence of the parties’ conduct and intentions in 1987 greatly reduced the uncertainty in Mr. Graves’ model, such that his testimony regarding the market for exchanges was helpful to the court in its resolution of this case on remand. When the parties’ behavior and intentions are considered from the perspective that, in 1987, the nonbreach world operates on the assumption of performance by DOE in accordance with the terms of the Standard Contract and the ACS process, Mr. Graves’ testimony is not speculative, but rather provides a reasonable description of a readily imaginable *690 part of the business environment in which PG & E would have been functioning during the eleven years between 1987 and 1998 as it anticipated the pickup of its fuel at Humboldt Bay. Further, the Federal Circuit has instructed that “parties to a contract agree to perform fully, not partially,” -id., so that, in the nonbreach world, PG & E is entitled to the benefits of full government performance under the Standard Contract, including the exchanges provision. As described more particularly below, the preponderance of the credible evidence adduced at the remand trial indicates that a market would have developed around the exchanges provision of the Standard Contract and that PG & E would have used the exchanges provision to avoid SAFSTOR costs in 1999 at its Humboldt Bay power plant.
92 Fed.Cl. at 184-85.
Dairyland Power Cooperative v. United States, 90 Fed.Cl. 615 (2009) made similar findings, also crediting Mr. Graves’ expert opinion on exchanges resulting in DOE removing all SNF from that utility by the end of 1998.
Notwithstanding flaws going to the precision of Mr. Graves’s results, Dairyland proffered convincing testimony that it probably would have advanced to the front of the queue and been out of SNF in 1998. Although the Government revealed flaws in Dairyland’s expert’s study casting some doubt on the precision of its calculations, the Government did not effectively counter Dairyland’s ease regarding exchanges. The Court finds that Dairyland has proven by a preponderance of the evidence that it would have utilized exchanges and had its SNF removed by DOE by the end of 1998.
90 Fed.Cl. at 634-35 .
Earlier in Tennessee Valley Authority v. United States, 69 Fed.Cl. 515 (2006), crediting exchanges as well as other possibilities, the court concluded that TVA would not have built dry storage in the absence of government delay even though TVA’s OFF allocations would not have been sufficient to alleviate storage shortages.
That a market would develop around the exchange provision of the Standard Contract is supported by experience with other regulatory-based exchange arrangements, including those associated with environmental emissions programs under the Clean Air Act ... Tellingly, it is significantly less speculative that a market would develop around the SNF-exchange provision in the Standard Contract than that government’s overall mitigation-limiting scenario would actually unfold.
69 Fed.Cl. at 533 .
The Federal Circuit did not disturb Yankee I’s conclusion that exchanges would have occurred in the non-breach world, and the government does not argue that exchanges would not have occurred “at some point and in some fashion.” (Def.’s Resp. to Pis.’ Posb-Trial Br. [1018] at 43.) The court already ruled that in the non-breach world, DOE, in removing SNF from utilities, would not have followed the OFF procedure used for assigning yearly weight allocations. Instead, exchanges would have occurred, once allocations were approved, that would have enabled the Yankees to accelerate the removal of their spent fuel. 73 Fed.Cl. at 303 . The Federal Circuit’s mandate that any non-breach world costs be determined using the 1987 ACR acceptance rates and full government performance did not overturn or otherwise disturb this court’s prior conclusions on exchanges. 536 F.3d at 1274. Moreover, in PG & E II, while the Federal Circuit deferred to that trial court’s discretion in then excluding Mr. Graves’ testimony, it had “no difficulty” with the undersigned’s decision to qualify Mr. Graves. Id. at 1292. If the exchange provision was meaningless, expert testimony in this regard would have been irrelevant.
Cost data is transparent and publically available. Appendix B to the 1987 ACR, listing SNF by discharge date, was based on data from utilities’ publically available 1985 Nuclear Data Forms RW-859. Discharge dates thereafter were based on DOE’s projections. In the non-breach world, DOE would have had actual data which would have been included in subsequent ACRs. (PX 52 at PA-103128.)
*691 Accordingly, with one exception, Mr. Graves used actual data from NAC International, mostly identical to actual discharge data contained in the 2004 APR/ACR to determine priority rankings of the industry. That data was used in Dairyland, and PG & E III. 12 The exception is the 2004 APR/ACR which reported that Maine Yankee finally discharged 13 assemblies in 1998, even though they were actually discharged earlier. In 1998 Maine Yankee decided to make that earlier shut down permanent. The NAC data recorded these discharges at the time they occurred from 1987 to 1992 when the reactor went subcritical prior to the actual removal of these assemblies from the reactor core. Maine Yankee last produced power in December of 1996. Before the decision was made to permanently shut down, Maine Yankee may have planned to reinsert the fuel and therefore did not list these used assemblies as permanently discharged until after the decision was made not to restart the reactor. Mr. Graves testified that this one year difference in age-ranking would not alter his opinion as to Maine Yankee’s 2004 fuel-out date with exchanges. It would change the final fuel-out date if DOE removals were based on allocations with no exchanges because it would cause Maine Yankee’s final removal date to slide from 2013 to 2014. The 2004 APR/ACR used the date Maine Yankee notified DOE that these 13 assemblies were permanently discharged. (PX 1952 at A.36, n. 15 (noting that “[a]l-though this SNF was discharged in 1987, 1988, or 1992, it was reported to DOE in 1998 as being permanently discharged. As such, it has been assigned a ranking date of December 31, 1998 for inclusion in the APR.”).) However, the 1987 ACR states that “[t]he ‘date of discharge’ of an assembly was assumed to be the date the reactor went subcritical prior to discharge.” (PX 52 at PA103079; see also Rem. Tr. [1001] 54:4-55:3 (Graves) (explaining the date when a reactor goes subcritical is “the reference date for when a discharge is recognized or for, in fact, when a discharge is defined as having occurred, regardless of whether that is exactly the date on which the physical removal occurred from the reactor. And so that makes that the appropriate basis for assigning a discharge date in the OFF queue.”).)
In its initial Opinion, the court partially discounted Mr. Graves’ testimony, which was based on an acceptance rate somewhat less robust than the 1987 ACR rate, in part because of concerns raised by the government that uncertainties of DOE performance would stifle or, at minimum, reduce market participation. Full government performance, based on allocations from the 1987 ACR rate subsequently chosen by the Federal Circuit as the performance standard, minimizes the court’s previous concerns related to market uncertainty that prevented the full acceptance of Mr. Graves’ initial opinion. 13
As Mr. Graves testified, there are, and were at relevant times, more than 100 possible buyers and sellers. Under the Standard Contract, DOE bore all removal and transportation costs; therefore, traders would not have varying transportation costs that could impact pricing and market development. Utilities would know the approximate cost avoidance facing other potential buyers. Potential buyers would know the universe of potential sellers. Regulatory oversight and ratebase scrutiny would encourage, and perhaps require, utilities to sell allocations to generate revenue. Utilities may be required to buy allocations rather than gain approval of costs which would be added to the rate base and passed on to the ratepayers for construction and operation of separate, extremely expensive, dry storage facilities.
*692 Because of these competing tensions, his experience of nearly 30 years in several analogous markets and applying classic economic principles, Mr. Graves modeled the market that would have occurred and determined allocation prices. Mr. Graves also testified at both the initial and remand trial why allocations, without any trading or exchanges, would not have been efficient or realistic to use for actual DOE removal. Many utilities with older fuel had early acceptance allocations for which they would have had no near-term SNF removal need, while others would have SNF storage shortages and potential huge storage costs. As a result, utilities would have substantial incentives to buy, sell or exchange allocations. Mr. Graves methodically calculated individual utilities with “excess” SNF in the non-breach world, the amount of that “must-move” fuel and the additional at-reactor storage cost that utilities would have faced. The greater a utility’s cost avoidance, the greater the incentive to buy allocations from a utility that was not facing a storage shortage. Taking into account possible reluctance to trade, he modeled several scenarios with less than full participation, opining that even with a small number of utilities participating, the Yankees’ exchanges would have occurred at or about the same costs resulting in similarly accelerated fuel-out dates. Compelling financial incentives, coupled with the contractual provision for exchanges, which under full government performance, must be assumed to be used, and the history of utilities creating vigorous markets in analogous circumstances, all lead the court to conclude that it is plausible, and more likely than not, the market Mr. Graves presented would have developed, and to the extent he opined.
Mr. Graves calculated that in the non-breach world Yankee Atomic would have paid a total of $14.7 million to buy allocations from other utilities to avoid substantial storage costs. (Rem. Tr. [1001] 72:17-23 (Graves) (“Yankee Atomic was a net buyer. Because they want to move quickly. They are the first party with this group of utilities with a 1998 move requirement, must-move requirement. So they buy a lot of rights in 1998 ... at a net cost of 14.7 million.”); Graves’ Rem. demonstrative 18.) Maine Yankee would have sold some allocations and purchased others, resulting in revenue of $13.7 million. Connecticut Yankee would also have sold some allocations and purchased others, resulting in revenue of $5.6 million. (Id.)
Mr. Graves’ calculation of potential cost avoidance to the industry of some one billion dollars was compelling. Fie concluded that under his model, only 13 plants would have additional storage expenses but only for a relatively few years (27 plant years) with a total estimated incremental cost of $190 million. In contrast, under removals -without exchanges, 32 plants (215 plant years) would have to face additional storage needs with a total estimated incremental cost of more than $1.3 billion. (Graves’ Rem. demonstrative 19; Trial Tr. [912] 839:2-845:3; 859:3-862:6 (Graves); Rem. Tr. [1001] 74:23-75:21 (Graves).) The government did not suggest that Mr. Graves was selective in his data, that he failed to gather appropriate data, or that his analysis was other than robust.
The Yankees’ position is that, utilizing the express timetables of Mr. Graves’ exchange-based fuel-out dates in the non-breach world of the 1987 ACR, dry storage would not have been built.
Given those pool out dates, as I think the testimony at the remand trial demonstrated, both explicitly and implicitly, it’s just nonsense to think that the Yankees would have built dry storage because it was in that same timeframe, 1999 to 2004, that the breach world ISFSIs at all three plants were constructed and loaded with spent fuel. Clearly, I don’t think we need testimony to show that the Yankees would not have been constructing ISFSIs while DOE was in the process of removing the fuel. And the evidence, of course, supports that directly because Mr. Davis and Mr. Thomas testified to that effect in testimony that is not directly contradicted by any testimony that was offered that those companies would not have made those decisions in the nonbreach world.
(Rem. Oral Arg. [1032] 66:14-67:3.)
Don Davis, former president and CEO of Yankee Atomic and Connecticut Yankee, testified that had DOE performed and if expect- *693 eel shut-down priority (discussed hereinafter) had not been granted, both companies would have aggressively pursued exchanges to avoid the additional storage costs. (Rem. Tr. [1003] 27:24-39:21 (Davis); see also PX 145.)
Why wouldn’t we do it that way [referring to exchanges]? I mean, I can’t think of any reason that would preclude us from doing that. And it was in all our best interests to coordinate those things, so I can’t imagine why we wouldn’t do it.... We probably had an obligation from our utility commissions to consider things like that, you know, if it is going to save the ratepayers money.
(Rem. Tr. [1003] 39:10-20 (Davis).) Maine Yankee’s former vice president and chief financial officer, Michael Thomas, similarly testified that Maine Yankee would have been interested in exchanges in the non-breach world of the 1987 ACR for economic as well as socio-political reasons. (Rem. Tr. [1005] 43:2-51:21.)
Maine Yankee and Connecticut Yankee had an additional reason to sell allocations. Both of these utilities had opted to defer paying their one-time NWF fees to the government. A deferred one-time fee became payable by the date of DOE’s initial removal of SNF. Credited evidence was that the deferral of fees was economically advantageous, so to the extent that postponement of SNF removal was achievable, they had an economic incentive to do so. (Rem. Tr. [1003] 31:5-16 (Davis).)
That a robust exchange market did not develop in the breach world is not dispositive, and is rather understandable. There was not much to exchange. Nevertheless, even in the breach world the Yankees looked at exchange possibilities as a way to avoid costs. (Trial Tr.[912] 2472:4-13 (Bennet); DX 162 (September 24, 1992 memo).) In January of 1998, Yankee Atomic considered circulating a Request for Proposals to ten utilities with early allocations. While this was in the breach world, and as the government points out, may have had litigation motivation, it is consistent with the Yankees’ current position, and that of Mr. Graves, that exchanges would be systematically beneficial.
Yankee can minimize its decommissioning costs by expediting the removal of its •spent fuel. The Waste Program can save time and money by removing the fuel in a single campaign, instead of coming back intermittently for twenty or more years. You are able to generate revenue by making relatively small adjustments in your much larger, longer-term schedule without ever delaying the date on which your last batch of fuel would be accepted by DOE.
(DX 264 at YDK016643.)
Crediting preponderant evidence, the court concludes that the Yankees would not have built dry storage in the non-breach world. In the hypothetical world of full government performance at the 1987 ACR rates, the Yankees would have purchased, sold or exchanged approved allocations which, when used in combination with their original approved allocations, would have resulted in all SNF removed from Yankee Atomic’s wet pool by the end of 1999; from Connecticut Yankee’s wet pool by the end of 2002; and from Maine Yankee’s wet pool by the end of 2004. With those fuel-out dates, the Yankees would not have built dry storage, and consequently would not have incurred the dry storage costs awarded in Yankee I, and an award of that quantum will not put the Yankees in a better position than if DOE had not partially breached. While vigorously attacking the evidence and methodology that leads to these fuel-out dates, the government does not take serious issue with the conclusion that with those fuel-out dates, dry storage would not have been built.
c. Initial age-based allocations could have been exchanged
The government argues that absent approved allocation exchanges, removals would not have deviated from their original age-based ordinal order and Mr. Graves’ exchange market is criticized as speculative. Conjecture aside, the government reasons, failing to establish that DOE would have approved any exchanges, the Yankees did not establish that they would not have built dry storage in the non-breach world. It is asserted that “of particular significance here on remand, the Federal Circuit cautioned *694 against making assumptions about whether DOE would have approved exchanges and ignored the acceptance of SNF and HLW under a strict oldest fuel first (‘OFF’) acceptance queue.” (Def.’s Resp. to Pis.’ Post Trial Br. [1018] at 16.) Similarly, the government cautioned that the Yankees’ theory and exchange model “directly conflict with the Federal Circuit’s admonition against making assumptions about whether DOE would have approved exchanges and ignored the acceptance of SNF and HLW under the OFF provision of the Standard Contract.” {Id. at 18.) Also, responding to inquiry from the court, 14 government counsel stated: “[a]bsent an approved exchange of DCSs wherein one utility swaps its allocation for another, OFF is the basis for the delivery of the fuel.” (Rem. Oral Arg. [1032] 116:18-20.)
The government’s position on remand is that OFF is the only express timetable for acceptance and should not be ignored. (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 16, 18 & 34-37.) Standard Contract provisions cited provide:
Delivery commitment schedules for SNF and/or HLW may require the disposal of more material than the annual capacity of the DOE disposal facility (or facilities) can accommodate. The following acceptance priority ranking will be utilized:
(a) Except as may be provided for in sub-paragraph (b) below [priority for shutdown reactors] and Article V.D of this contract [emergencies], acceptance priority shall be based upon the age of the SNF and/or HLW as calculated from the date of discharge of such material from the civilian nuclear power reactor. DOE will first accept from Purchaser the oldest SNF and/or HLW for disposal in the DOE facility, except as otherwise provided for in paragraphs B, D and E of Article V.
(DX 6, 7 & 8 at Art.YI.B.l.) Article V, Paragraph B grants the utility 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 final delivery schedule.” Article V, Paragraph D states: “[e]mergency deliveries of SNF and/or HLW may be accepted by DOE before the date provided in the delivery commitment schedule upon prior written approval by DOE.” The third exception, paragraph E, is the exchanges provision. 15
Article IV.B.5(a), in the section outlining DOE’s responsibilities, includes DOE’s duty starting in 1991 to prepare an annual age-ranking of all domestic civilian spent fuel— the acceptance priority ranking (“APR”)— using the date of discharge of the material from the reactor. “The oldest fuel or waste will have the highest priority for acceptance, except as provided in paragraphs B and D of Article V and paragraph B.3 of Article VI hereof.” (DX 6, 7 & 8 at Art. IV.B.5(a).) Paragraph B of Article V grants the utility *695 the right to “identify all SNF and/or HLW the Purchaser wishes to deliver to DOE beginning sixty-three (63) months thereafter.” (Id. at Art. V.B.) Paragraph D of Article V contemplates accelerated SNF deliveries in emergencies, and paragraph B.3 of Article VI allows DOE to reject improperly labeled SNF.
Article V of the contract, “Delivery of SNF and/or HLW,” clearly gives the utility the right to select other than the oldest SNF for acceptance and removal. That provision grants the utility the “right to determine which SNF and/or HLW is delivered to DOE.” (Id. at Art.V.E.)
The preponderant record evidence and the contract provisions involved demonstrate that, while initial allocation or places in the queue were to be distributed on an ordinal listing developed on an OFF basis, a subsequently-approved DCS based on that ordinal listing could be sold or exchanged subject to DOE’s approval. The transferee of that allocation, giving DOE notice as required under the Standard Contract, would have gained the right to have DOE remove the quantity of SNF specified in that allocation, which did not have to bear the same discharge date as that on which the original allocation was based. Just as the transferor of the allocation could efficiently manage its wet pool storage and substitute otherwise qualified fuel for removal by DOE, any SNF in the utilities’ inventory could also be substituted by the transferee for DOE removal so long as it had been out of the reactor for at least five years, as required by the contract. By selling, buying or exchanging allocations among themselves, utilities could manage their respective wet pool inventories and avoid the expense of additional at-reaetor storage, or generate revenue from allocations not then needed. Contrary to the government’s assertion, Mr. Graves’ exchange market based on the allocations provided by the timetable of the 1987 ACR, does not ignore age-ranking of allocations. Rather, priority and market price for the acceptance and removal commodity were based on this timetable.
At the 2004 trial, government-sponsored testimony was in accord that SNF age was used to determine initial allocations amounts for each year. Utilities then had flexibility in selecting the specific contract-compliant spent fuel from their pool inventory for DOE’s acceptance and removal.
Thomas Pollog was employed in the Office of Civilian Radioactive Waste Management (“OCRWM”), Office of Systems Analysis and Strategy Development, starting around 1990, implementing the Standard Contract. He was the contracting officer’s technical representative. Mr. Pollog testified on direct:
Q. Mr. Pollog, could you explain to the Court what the Oldest Fuel First or OFF queue is?
A. Yes, that’s how the Department ranks fuel for allocating acceptance capacity. Purchasers earn acceptance capacity based on date of discharge of their fuel. The earlier you discharge the fuel, the earlier you’ll get an allocation, so it ranks it from first to last, with the earliest discharges getting the earliest allocations in the acceptance queue.
Q. But just to be clear, the Oldest Fuel First earns the allocation. Do the utilities have to deliver the Oldest Fuel First against those allocations?
A. No, they do not. The purchasers can use that allocation for any fuel that they, you know, they want to use it for submitting to the Department.
Q. Is there cooling time requirement in the contract that you understand?
A. Well, there is a description of standard fuel in the contract. In order to be standard fuel, it would have to be greater than five years old or have to be discharged from a reactor core more than five years in order to be designated as standard.
(Trial TV. [912] 3919:19-25; 3920:1-16 (Pol-log).)
When questioned by the court in 2004, another government witness, Mr. David Za-bransky 16 concurred with Mr. Pollog’s understanding.
*696 THE COURT: Before I forget it, do you agree with Mr. Pollog that the DCSes, well, the allocation under the capacity report is strictly for an allocation of quantity and that you can, the utility can substitute any fuel, they can list any fuel?
THE WITNESS: On the DCS?
THE COURT: On the DCS.
THE WITNESS: Yeah, I believe, I agree with Tom [Pollog], and that was a position I held when I was at the utility [Wisconsin Electric] and which DOE has put forth, that the age of the fuel, the allocation really gives you a place in line, a ticket. And when it comes time to proffer your DCS and actually deliver fuel, it’s any fuel that meets the criteria under the contract.
(Trial Tr. [912] 4160:17-25; 4161:1-6 (Za-bransky); see also 4202:5-12 (Zabransky).)
This understanding is in accord with the Standard Contract.
Q. Mr. Zabransky, is it your understanding that this sentence [“Purchaser shall have the right to determine which SNF and/or HLW is delivered to DOE, provided, however, that the purchaser shall comply with the requirements of this contract”-Art. V.E] is what gives utilities the right to designate specific fuel it wishes to deliver to DOE outside the Oldest Fuel First queue?
A. Yes, this is my — my understanding is this is what was relied upon by the contracting officer when it gave the instructions that utilities could do that.”
(Id. at 4222:7-14 (Zabransky).)
Credited post-contracting documents further validate the parties’ intentions that exchanges could be used to alter positions in the queue. Following the signing of the Standard Contract, a December 20, 1988, Draft Mission Plan, mandated by the NWPA and circulated to utilities, commented that to avoid building additional on-site storage, a utility could “arrange for the right to ship spent fuel to the Department from a utility who is next in the queue in shipment allocation (subject to prior approval by the Department based on submittal of a request no less than six months prior to the scheduled delivery date). The use of such brokering arrangements should prevent the need for any utility to expand on-site storage and minimize transshipments.” 17 (PX 636 at GTR-042-1073.)
The contracting officer’s March 4, 1992 instructions for completing a DCS were unambiguous. “Once a Purchaser has an allocation, any SNF owned by the Purchaser can be designated for delivery against that allocation. The DCS does not restrict the Purchaser to deliver the specified SNF that was the basis for the allocation.” (DX 030.001 at NAT0012186.) Mr. Zabransky’s trial testimony furthered this point.
LTJhe contracting officer issued in her directions the guidance that utilities were free to submit, or free to put forth any spent fuel they had that met the criteria as spent fuel under the contract.... [Allocations] gave you a place in line, but then let you manage your fuel inventories as you saw appropriate, so that was another clarification that was also, I believe, in the instruction transmittal letters from the DCSes.
(Trial Tr. L912J at 4160:24-4162:9.)
Dr. John Bartlett, the second presidentially-appointed Director of DOE’s OCRWM, was confirmed by the Senate and took office in April of 1990. He served in that position until January of 1993. (Trial Tr. [912] 590:2-24 (Bartlett).) Dr. Bartlett testified at the original trial that the goal of the program was to avoid additional at-reactor storage *697 costs. (Id at 614:2-615:23; 617:4-621:13) (Bartlett) (recalling anticipating a ramp-up to 3,000 MTU annually within about three years from 1998 “[i]n order to avoid a need for the utilities to have to make additional investments or have fuel that must [be] moved in order to maintain their conditions”). DOE did not intend or expect DOE’s acceptance and removal would follow OFF and through use of exchanges, the program was to operate efficiently.
Q. Dr. Bartlett, when you were director of OCRWM, did you have an understanding of the order or the sequence in which the Department would be receiving spent fuel from individual utilities?
A. Well, the basis that had been established was in the standard contract, which identified a concept called OFF, oldest fuel first, as a means of inventorying the rate at which fuel had been discharged from the reactors. It was my understanding and my planning that that concept did no more than that. It simply identified the spent fuel at a rate at which it had been discharged.
The system would, in my opinion, never have operated under an OFF concept. It would be extremely inefficient and inappropriate. Because many of the discharges had been small quantities of fuel over large intervals of time. And you could not operate your transport facilities and equipment efficiently if you followed the OFF principle.
Q. Well, when you were director then, if you did not intend to follow the oldest fuel first order, how did you expect the sequence to be worked out for the receipt of spent fuel from the utilities?
A. There was expectation throughout the system, throughout everybody involved, the utilities and us, and we had discussions, of course, with the utilities, that the system would operate on a basis, let me call it swaps, that the utilities would exchange their rights in the OFF queue in order to operate effectively for themselves and to allow the receipt system, the DOE receipt system to operate efficiently in use of the swaps concept.
Q. And, again, when you were director, why did you understand that this swaps system, as you described it, would be efficient for utilities?
A. It was our sense that the utilities themselves felt it would be very efficient 18 and that they objected to it for the same reasons we did, the OFF system. For example, there’s one reactor, Dairyland Cooperative had seven discharges of very small quantities over a period of 10 years. And we would have to run back there every time and pick up a little bit of fuel. And there’s an enormous amount of planning and preparation and preoperations and postoperations associated with each transfer operation. And every time you have to do that, it adds enormously to the cost. So what you prefer to do is you operate where you pickup fuel as infrequently as possible, with as large a quantity as possible during each trip.
(Id. at 621:14-623:15 (Bartlett) (footnote added).)
Crediting Dr. Bartlett’s testimony, exchanges would have had substantial programmatic benefits by reducing the number of yearly DOE site visits and creating more efficient transportation campaigns that would have taken more substantial quantities of SNF at each site visit. (Trial Tr. [912] 839:2-24 (Graves); 362:15-363:7 (Mills); 4206:25-4207:21 (Zabransky) (exchanges between utilities could result in a more efficient transportation system which would benefit DOE).) Both DOE and the industry recognized early that it made no sense for DOE to arrive at a utility site and not maximize the use of its transportation container. (Id. at 1425:1-1427:7 (Ivan Stuart) (opining that DOE would have used shipping campaigns 19 *698 because of efficiency benefits at the reactor site and in transportation which cut costs significantly).) The Standard Contract does not prohibit DOE from initiating exchanges.
DOE’s expectation that utilities would use exchanges to advance their queue position continued even when upcoming breach was apparent. On September 28, 1995, OCRWM Director Daniel A. Dreyfus wrote to Dr. Andrew C. Kadak, President and Chief Executive Officer of Yankee Atomic, that utilities could exchange approved DCSs which would optimize industry storage capacity without DOE’s overt involvement.
[W]e continue to believe that once the Federal waste management system is operational, the exchange provision will be exercised by Purchasers as originally anticipated. Article V.E. of the [Standard Contract] grants Purchasers the right to exchange with DOE concurrence, approved LDCSs]. This provision was included in the Standard Conti-act in response to comments received during the Standard Contract rulemaking, in order to allow Purchasers greater flexibility in managing their inventories of [SNF]. We believe the exchange provision will allow industry to optimize the allocation of waste acceptance capacity to meet individual utility needs, without the overt involvement of the Department.
(PX 145.) A December 16, 1992 internal Yankee Atomic memorandum reacting to DOE’s refusal to remove of all of Yankee Atomic’s SNF based on priority for shut down reactors, discussed hereinafter, concluded that resubmitting the request would not impact possible exchanges. (DX 177 at YDK021587 (“[R]esubmitting DCSs for removal of all SNF in the first three years should not effect [sic] our ability to swap/exchanges places in the queue with other reactors.”).)
Alan Brownstein, director, Regulatory Coordination Division, and senior policy ad-visor to the director of OCRWM, also testified that by use of exchanges, utilities could rearrange their queue positions.
If you take two utilities that had, you know, different places in the queue, their situations on, for instance, their cost of storage could have been different. I’ll give you a couple of examples.
Maybe one utility had an early allocation that would have been easy for them to rerack or, you know, they had already made the capital costs for a storage facility or had excess storage capacity within their pool.
The value — we believed the value of that place in the queue to that utility was less than a utility that, if they did not receive the sei-vices in that particular year, they would have had to make a major capital expense. So you can see a natural imbalance to the utilities themselves and the value of receiving fuel at any particular time.
And, if there was that imbalance, we assumed, certainly the contract allowed for, you know, a market to develop. And we were going to then be a part of that because the contract required us to approve it, when the government has to approve it.
We wanted to be cax-eful how we, quote, intex-fered with the marketplace. And there were these issues, these technical issues that, if we resolved together, would have — again, since these wei-e primaiily equity issues, not issues of key importance to us, we wanted to do as little as possible in interfering with the market.
(Dep. Designation [846-6] 4-5; [846-8] 1-2 (Brownstein).) Nancy Slatei-Thompson’s (team leader, Regulatory Coordination Division, OCRWM) understanding was similar. “My understanding of the provision for exchanges was to provide the utilities with flexibility in tex-ms of altering their position in a cue [sic].” (Dep. Designation [846-9] at 5, 26.) 20
In short, the testimony of knowledgeable witnesses supports the conclusion that Art. V.E, the more specific exchange provision— “[purchaser shall have the right to exchange appi-oved [DCSs] with pai-ties to other contracts with DOE for disposal of SNF and/or *699 HLW; provided, however, that DOE shall, in advance have the right to approve or disapprove, in its sole discretion” — takes precedent. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed.Cir.2010) (citing Smith v. Brown, 35 F.3d 1516, 1523 (Fed.Cir.1994)). The government’s attempt to reinterpret the delivery requirement, if adopted, would effectively eliminate the exchanges provision which was added to the final Standard Contract by DOE based on utility comments and for the purposes advanced. New Valley Corp. v. United States, 119 F.3d 1576, 1584 (Fed.Cir. 1997) (instructing that contracts be construed to give “reasonable meaning to all terms of the [.parties’ contract] without rendering any superfluous and best effectuates the parties’ intent and the [contract’s] ‘spirit and purpose.’ ”). Mr. Graves’ market evidence is based on the correct interpretation of the Standard Contract delivery provisions as confirmed by the record evidence.
d. DOE’s discretion
Because of DOE’s discretion to approve or disapprove exchanges, and the contention that Mr. Graves did not adequately factor that discretion, the government contends the Yankees have failed to establish their condition in the non-breach world.
At the 2004 trial, the government acknowledged utilities could use exchanges to rearrange allocations with DOE’s approval. “While the contract allows DOE to exercise its discretion to accept SNF outside of the OFF queue (see DX 6, 7, 8 at Art. VI.B.3 (sic) (priority), Art. V.D. (emergencies), Art L.] V.E. (exchanges)), the OFF queue is the contractually mandated order of acceptance.” (Def.’s Resp. to Pis.’ Initial Post-Trial Br. [899-3] at 10-11 (emphasis in original).) Also, “[although the Standard Contract provides that DOE will initially allocate acceptance positions in its SNF acceptance queue based upon the age of the various contract holders’ SNF, 10 C.F.R. § 961.11 , Art. VI.B.l, it also provides that contract holders can ‘exchange approved delivery commitment schedules with parties to other contracts with DOE for disposal of SNF and/or HLW; provided however, that DOE shall, in advance, have the right to approve or disapprove, in its sole discretion, any such exchanges.’ ” (Def.’s Initial Post-Trial Br. [883-2] at 23-24 (emphasis in original).)
The government gives several reasons why DOE may not have approved exchanges: adverse consequences of diversion of previously-committed resources; the amount of material or type of assembly to be swapped (i.e., failed or damaged fuel); the infrastructure of the receiving facility; the availability of transportation casks; the availability of trained DOE, utility and safety personnel along the transportation route proposed; utility access to the planned transportation route; and other logistical concerns. Also, because utilities with a deferred fee option had to pay upon initial removal, DOE may have had cash-flow reasons for refusing to allow a proposed swap that would postpone recovery of hefty deferred fees. (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 40.)
The government contends that breach damages cannot be awarded based on the exercise of discretion. Reliance is based on San Carlos Irrigation & Drainage District v. United States, 111 F.3d 1557, 1563 (Fed.Cir. 1997). In San Carlos, the government was accused of breaching its contract to provide water and to maintain the Coolidge Dam. Failure to maintain the dam resulted in leaks. While continuing to receive quantities of water required under the contract, plaintiff asserted that leaks in the dam eliminated “excess” water which, under the contract plaintiff could have requested and obtained if the Department of the Interior, in its sole discretion agreed. Contract damages sought included this excess water. The government contends that the Federal Circuit rejected this claim as speculative, finding that “[tjoo many contingencies — including, most importantly, the discretion of the agency to dispose of excess water — exist in the causal chain” to support an award of damages. Id. at 1563 . The government also cites Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995) (noting that the court here stated that a contract may not be supplemented by a matter within the other contracting party’s sole discretion) and other authorities addressing contracts granting the government the sole discretion to exercise options.
*700 The Yankees respond that San Carlos is distinguishable and its holding is limited to a factual determination that on the record presented, there were simply too many contingencies, including the government’s exercise of discretion, noted as the most important. The Federal Circuit did not hold that government discretion per se would preclude any consequential damages.
San Carlos as it relates to exercise of government discretion in the Standard Contract was recently discussed in Dainjland, 90 Fed.Cl. at 629 . San Carlos concerned a host of contingencies found to be a barrier to causation. The agency (the Department of the Interior) had the discretion to sell or dispose of excess water. Even disregarding the factual contingencies necessary for circumstances to have arisen to create an opportunity seven years after the asserted contract breach, the discretion to sell excess water is distinguishable from DOE’s discretion to approve a swap between two private parties, essentially a ministerial determination that would not supplant or extend contract rights or obligations. Likewise, government discretion to exercise options would extend contract rights or obligations, distinguishing other authorities cited by the government.
While DOE had the right to approve exchanges, credited evidence established that while there would have been some record-keeping, DOE would have been reasonable in approving and, instead of restricting the market, would have facilitated exchanges. 21 (Trial Tr. [912] 4204:24-4205:3 (Zabransky) (agreeing with PX 145 that exchanges will enable utilities to “optimize allocation of waste capacity”); 3640:1-10 (Morgan) (interpreting approval memo to mean that DOE would approve exchanges as long as “the fuel met the acceptance requirements”); 4776:20-4777:23 (Milner, Chief Operating Officer of OCRWM) (DOE would have liberally approved exchanges requests involving shutdown utilities); Dep. Designation L846-8] 2 (Alan Brownstein) (“[W]e wanted to do as little as possible in interfering with the market.”); [846-9] 27 (Nancy Slater-Thompson) (“I think it was our intention to accommodate, to the extent practicable, all reasonable requests to exchange.”).)
Furthermore, under full government performance, DOE’s discretion would not have been exercised arbitrarily and capriciously but consistent with the obligation of good faith and fair dealing. Precision Pine & Timber, Inc. v. United States, 596 F.3d 817 , 820 n. 1 (Fed.Cir.2010) (“Both the duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith and fair dealing.”); Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1365 (Fed.Cir.2009); Yankee I, 73 Fed.Cl. at 305 -06 (citing authority). A rational exercise of approval discretion, as contemplated by DOE, would support an exchange market with the benefits and efficiencies involved. The government has not established the possibility of disapprovals by DOE to any extent that would invalidate Mr. Graves’ results.
In the end, the court concludes that while the government theorizes reasons why DOE could have disapproved some exchange requests, this action would not exceed the extremes of restricted participation considered by Mr. Graves and determined not to invalidate the Yankees’ fuel-out dates to which he opined. The Standard Contract’s reservation of authority to DOE to approve or disapprove DCSs did not shield the government from liability for partial breach. Me. Yankee. Atomic Power Co., 225 F.3d at 1342 . The same logic applies to the government’s position that DOE’s sole discretion to approve or disapprove exchanges would have precluded the exchange market. See Locke v. United States, 151 Ct.Cl. 262 , 283 F.2d 521, 524-25 (1960) (affirming damages for breach of a contract to include firm as one of four firms eligible to repair certain government typewriters without evidence of specific machines plaintiff would have repaired and despite government discretion to reduce total repair work by increasing its own repair facilities); Energy Capital Corp. v. United States, 302 *701 F.3d 1314, 1328 (Fed.Cir.2002) (similarly approving damages for breach of contract despite need for discretionary approval of government agency and first mortgagees in the non-breach world).
e. The market would have had time to develop
The government’s criticism of Mr. Graves’ opinion evidence for assuming full, or at least robust, market participation in 1998, assertedly “the program’s very first year” lacks validity. (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 43.) While generally not contesting the transparency or cost savings of the market factors, the government asserts that any exchange market would not have matured sufficiently for Yankee Atomic to have a fuel-out date of 1999—the second year of DOE performance in the non-breach world, nor would it have advanced Maine or Connecticut Yankees’ fuel-out dates.
While DOE’s removal activity was to have begun no later than January 31, 1998, the issuance of the DCSs—the act that created the valuable queue commodity—would have been more than five years earlier, essentially giving at least five years for the market to develop.
The DCS process was to have begun in January of 1992. Applications for a DCS were due sixty-three months before the requested removal. “LB]eginning January 1, 1992 the Purchaser shall submit to DOE the delivery commitment schedule(s) which shall identify all SNF and/or [high level waste (‘HLW’) ] the Purchaser wishes to deliver to DOE beginning sixty-three (63) months [5.25 years] thereafter.” (DX 6, 7 & 8 at Art. V.B.l.) DOE had three months to approve or disapprove. (Id.) A final delivery schedule was to have been submitted by the Purchaser not less than twelve months before the approved delivery date. (Id. at Art. V.C.) Accordingly, utilities would have an approved DCS with a priority ranking for a set quantity of SNF more than five years before the removal date. That place in the queue could have been exchanged or traded up to six months prior to the approved removal date, subject to DOE’s approval. “Not less that six (6) months prior to the delivery date specified in the Purchaser’s approved LDCS], the Purchaser shall submit to DOE an exchange request, which states the priority rankings of both the Purchaser hereunder and any other Purchaser with whom the exchange of approved delivery commitment schedules is proposed.” (Id. at Art. V.E.) “LP]arties to a contract agree to perform fully, not partially.” 536 F.3d at 1292. With visible preparation preceding actual performance, in the non-breach world of full performance by DOE at the rates in the 1987 ACR, utilities would have had more than ten years for the market to develop.
Crediting a preponderance of the evidence adduced, the court concludes that a market would have developed under the Exchanges provision of the Standard Contract and the Yankees would have used exchanges to empty their wet pools, rendering dry storage unnecessary and thereby avoiding the dry storage costs incurred.
f. Priority for permanently shut-down reactors
As an exception to OFF, the Standard Contract provides that priority for removal of SNF may be given to reactors that have permanently ceased operations.
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.
(DX 6 at HQR0090592-93; DX 7 at HQR0041522-23; DX 8 at HQR0090764.)
During the time period for which damages are sought, all three Yankees permanently shut down their nuclear reactors. At the time of contracting and for a time thereafter, the Yankees had no plans for dry storage and anticipated using this contract provision to rather promptly remove all their SNF and GTCC from their sites as part of their decommissioning plans. (Trial Tr. [912] 441:24-442:25 (Mills) (“[I]t just seemed reasonable in that the industry would have an ability to decommission shut-down plants and be able to decommission them, return those particular sites to whatever use was appro *702 priate, and to be able to do so in a reasonable time period after they were shut down.”)-)
There were only a few shut-down reactors at this time. 22 During the short comment period following the initial publication of the proposed Standard Contract, four commen-ters opposed this priority and requested it not be included. DOE rejected these requests, reasoning “Ltjhis 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. 16590 -01, 16593 (April 18, 1983). (Dep. Designation [833-11] 15-16 (Ronald Milner) (DOE had an interest in and objective allowing shut-down reactors to timely decommission); Dep. Designation [846-12] 21-22 (Lake Barrett) (“I felt that it was in the nation’s interests to support utilities like Yankee who were trying to clean up their sites and return that real estate to useful societal purpose in that we should try to move the fuel off as quickly as we practically could, consistent with sound national policies.”).)
The government points to Dr. Bartlett’s April 6, 1992 letter stating that priority for shut-down reactors would not be given at least in the interim pending further rulemak-ing. (DX 149.) On the other hand, a May 21. 1992 internal memorandum documents that previous decommissioning studies by Yankee Atomic assumed removal of all SNF within the first year following plant shutdown based on priority for shut down reactors, referencing analyses in 1980, 1984 and 1989, confirmation of Yankee Atomic’s understanding and condition in that timeframe (which encompasses the 1987 ACR) that they were not pursuing dry storage. (DX 153.) Indeed, DCSs were submitted to DOE requesting that all 127 MTU of Yankee Atomic’s SNF be taken in the first three years. DOE rejected the request on the grounds that DCS instructions require that “the total quantity of spent fuel designated for delivery not exceed the allocation in the [ACR].” 23 (DX 177 at YDK021586.)
The September 28, 1995 letter from OCRWM Director Dreyfus to Dr. Kadak, President and CEO of Yankee Atomic that, as discussed supra, was credited evidence of the parties’ post-contracting intentions concerning the use of exchanges, states that at least at that time, DOE was not able to grant priority.
With respect to the Department’s ability to grant priority acceptance of the spent fuel from your Rowe power station, as I noted in my letter of July 13, 1995, to State Representative Herren, there are statutory limits on the amount of spent fuel that the Department can accept prior to the opening of a permanent repository. Consequently, the Department does not have the ability to grant priority acceptance to shutdown reactors without adversely affecting other utilities. The Congress is debating the issue of centralized interim storage of [SNF]. The outcome of this debate may involve new policy direction for this program, and may include policy guidance on the priority acceptance of spent fuel from shutdown reactors.
(PX 145; see Trial Tr. [912] 4792:24-4793:7 (Milner) (testifying that DOE would not remove SNF from shut-down reactors at the expense of operating reactors).)
Mr. Graves testified that with shut-down priority, the Yankees would have had all their fuel removed from their wet pools after it had cooled the requisite five years. Mr. Graves testified that Yankee Atomic shut down in 1991. If DOE had granted priority acceptance to Yankee Atomic in the non-breach world, all of its fuel would have been removed in 1998. (Rem. Tr. [1001] 211:8-10; 141:2-142:14 (Graves).) Maine Yankee’s reactor shut down in December of 1996, and in August of 1997, the decision became permanent. If DOE had granted priority acceptance, Maine Yankee would have had all of its fuel removed in the 2001-2002 time frame. *703 (Id. at 211:21-23;143:2-7 (Graves); [1005] 37:4-12 (Thomas).) Connecticut Yankee shut down in 1996. If DOE had granted priority acceptance, Connecticut Yankee would have had all of its fuel removed by 2001. (Id. [1001] at 211:14-16;143:2-7 (Graves); [1003] 55:8-56:4 (Davis).) With the pools empty, there would have been no need for storage, so the ISFSIs would not have been built and the reactor sites would be decommissioned. (Id. [1001] at 146:17-147:10 (Graves).)
DOE’s exercise of discretion is a bit more problematic here in that rather than agreeing to allow two contracting parties to merely swap, granting priority to shut-down reactors may have required a non-consensual rearranging. As the 1987 ACR stated, utilities’ final delivery schedules might be altered by shut-down priority. (PX 52 at 15.) Priority would, however, come at a price to operating reactors. (Rem. Tr. [1001] 197:15-199:24 (Graves) (admitting that priority to shutdown reactors would “crowd-out” operating facilities).)
The Yankees contend the government is precluded from asserting on remand that DOE would not have granted priority. The government’s response to a remand interrogatory was “[wje do not intend to develop a contention regarding when DOE ‘would have’ employed the ‘priority for shutdown reactors’ provision of the Standard Contract, given that it is irrelevant and unnecessary to this litigation.” (Order [995] at 3.) The Yankees filed a Motion to Compel testimony from a government designee on this topic and the court “preclude[d] additional inquiry on this topic in light of the government’s concession that it has no position on whether DOE would have utilized priority for shutdown reactors in the nonbreach contractual world.” (Id. at 4.) Nevertheless, expansive remand testimony was allowed, the court deferring any determination whether the interrogatory concerning remand contentions as to “when” priority for shut-down reactors would have been granted in the hypothetical nonbreach world includes the predicate assumption “whether” priority would be granted.
However, because of the court’s conclusions on exchanges, it is not necessary to make an alternative finding whether in the non-breach world DOE would have granted the Yankees’ requests for priority for shutdown reactors such that the breach world mitigating expenses would not have been incurred. PG & E III, 92 Fed.Cl. at 185 n. 8 (“Because the court finds that plaintiff established by a preponderance of the evidence that it would have used exchanges to avoid incurring 1999 SAFSTOR costs, the court does not address in detail plaintiffs additional contention that it could have used the DOE shutdown priority provision to achieve the same result.”); Dairyland, 90 Fed.Cl. at 635 n. 24 (“Given the Court’s decision that exchanges would have allowed Dairyland to deliver its fuel promptly in 1998, the Court need not decide whether the priority acceptance provision would have been utilized.”). However, to the extent exchanges would not have been available, the court credits preponderant evidence that shut-down priority would have been implemented by DOE to avoid having utilities with shut-down reactors wait any substantial time period to empty their SNF pools and proceed with decommissioning. (PX 145.)
g. Maine Yankee and Connecticut Yankee inconsistency asserted
The government claims an inconsistency or disconnect exists in Mr. Graves’ non-breach world, where both Maine Yankee and Connecticut Yankee are sellers of early allocations owing to their status as shut-down plants with room in their respective wet pools with no further discharges anticipated. Accordingly, Maine Yankee sells early allocations and has a fuel-out date of 2004; Connecticut Yankee also sells early allocations and has a fuel-out date of 2002. However, in the breach world, during the time Mr. Graves’ market would have been developing and functioning (from 1991 when the first DCSs would have been issued, until 63 months prior to January of 1998), both Maine Yankee and Connecticut Yankee were operating reactors with space needs and the government points out, in the current SNF cases, no operating reactor has hypothesized that exchanges would have been used in the *704 non-breach world. 24 Operating reactors would not have the same incentive to exchange, the government concludes. Rather, the government adds, both Maine Yankee and Connecticut Yankee were during this time facing loss of full core reserve (“FOR”) and simply would not have been sellers of allocations as provided in Graves’ model; rather they would have been interested in acquiring additional space in order to avoid the large cost of reracking. Indeed, as addressed hereinafter, both these utilities rer-acked because of storage concerns. As a result, the government reasons, neither would have been a seller of allocations until they permanently, but prematurely, shut down — Maine Yankee in August of 1997 and Connecticut Yankee in 1996. 25
Crediting Mr. Graves’ opinion that there would have been numerous sellers, and his rigorous modeling of his conclusions with varying assumptions of market participants, including a hypothetical market with only a few participants, even if neither Maine Yankee nor Connecticut Yankee would have been sellers of allocations prior to their respective shutdowns, they could have entered the market when that status changed. Mr. Graves opined that removing some early shut-down plants from the larger pool of potential sellers would not materially alter his model, Trial Tr. [912] 7506:10-7514:6 (Graves); and accordingly, any brief absence of these two utilities in the seller pool would not have been significant. While final delivery schedules had to be submitted to DOE no less than 12 months prior to the delivery/removal date in an approved DCS, exchanges could be submitted up to six months prior. (DX 6, 7 & 8 at Art. V.E.) Accordingly, even with an August 1997 decision to permanently shut down Maine Yankee’s reactor, which had not operated since December of 1996, it is likely Maine Yankee could and would have been able to join the pool of potential sellers of its 1998 allocations under the 1987 ACR which were 71.1 MTU. Likewise, Connecticut Yankee, which shut down in 1996, would have had time to adjust and likely would have become a seller of its 1998 allocations under the 1987 ACR which were 87.9 MTU. (Graves’ Rem. demonstrative 1.)
h. Pricing assumptions
Mr. Graves’ fuel-out date model is also criticized by the government for unreliable pricing assumptions. (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 59.) “Mr. Graves’s model unrealistically assumes that all sellers would accept the lowest price that clears the market, and this is true regardless of which year’s allocations are sold.” Id. It is also asserted that Mr. Graves ignored the time value of money; minimized the interests of sellers in getting highest prices possible by assuming the marginal bid price 26 as the market-clearing price; relied on estimated costs that would have motivated buyers’ willingness to buy allocations; failed to credit variation in costs from utility to utility, or transaction costs; and assumed ISFSI costs that differed from the Yankees’ costs in this litigation. Many of these criticisms were presented by government expert economist Dr. Jonathan Neuberger. 27 Dr. Neuberger *705 did not however, present his own version of the market or the prices that the Yankees would have paid or received. (Rem. Tr. [1007] 78:24-80:17 (Neuberger) (admitting that because he did not create his own model, he did not know whether sellers would not have accepted a marginal bid price for allocations); id. at 82:20-85:10 (admitting he was not in a position to offer an opinion on how uncertainty would impact participation in the exchange market); id. at 90:2-8 (admitting he was not in a position to opine on whether risk aversion would impact participation in the exchange market); id. at 93:4-97:7 (admitting he did not model the impact of sociopolitical factors and accordingly did not have an opinion as to whether such factors would impact the market); id. at 98:3-21; 100:15-102:23 (admitting he did not model any impact of less than 100 percent market participation, or the extent to which DOE would have approved exchanges and did not run Mr. Graves’ model with any other available cost inputs; accordingly, he could not opine whether different costs would alter Graves’ results).)
Mr. Graves’ model remained fundamentally consistent over a broad range of assumptions of less than full market participation, including participation by only half of the sources of allocations. (Rem. Tr. [1001] 97:5-25 (Graves).) Mr. Graves’ sensitivity analyses included variation in utility spent fuel storage costs (Rem. Tr. [1001] 102:6-103:7); possible DOE reluctance to approve exchanges, id. at 103:8-104:8; possible exercise of market power by utilities with early acceptance allocations id. at 104:9-105:23; transaction costs, id. at 108:13-109:17; projection that at some point exchange costs would go to zero, id. at 111:24-114:16; and barriers such as socio-political factors, id. at 116:10-125:23.
That an exchange market did not materially develop in the breach world is understandable as there was no confidence in the timing of DOE’s performance, therefore cost avoid-ances and revenue potential that would have driven the market were speculative variables. While trial evidence indicates that political and environmental concerns may have prevented some market players or some transactions (although benefits of efficiency of campaigns with x-educed transportation as well as costs and other systems’ efficiencies could well have countei’ed public and regula-toi'y reluctance), in the non-breach world, DOE’s preparation for perfonnance would have been highly publicized and transparent. The Yankees and other contracting utilities would have obtained confidence in DOE’s timely and full performance at the 1987 ACR x-ates such that the mai'ket motivators cited by Mr. Graves would have resulted in exchanges leading to the fuel-out dates his testimony supports.
i. Regulators would likely have precluded dry storage
Specifically for Connecticut Yankee, it is not likely that the Fedei’al Enei’gy Regulato-i’y Commission (“FERC”) would have approved the expenditures for dry storage if DOE had been preparing for perfonnance at the í-emoval l’ates in the 1987 ACR. In Connecticut Yankee Atomic Power Co., 84 F.E.R.C. ¶ 63,009 (1998), Connecticut Yankee’s request to increase the amount of its decommissioning trust fund was denied following ten days of hearings with opposition by intervenors and regulatoi-y staff. (DX 471.) Criticism included pi’ojected costs of spent fuel storage. Connecticut Yankee’s cost projections were based on wet storage and assumed DOE performance would start in 2006 and be completed in 2022 (sixteen *706 years). The rigor of examination, scrutiny of costs of wet versus dry, and exploration of other options would most likely have also occurred in the non-breach world, and with DOE’s performance at the rates in the 1987 ACR, approval of construction of an ISFSI would not have been likely.
Also, Connecticut Yankee preferred wet storage, despite FERC staff and intervenors advocacy for dry storage at that time. Thus, with DOE performance starting in 1998 at the 1987 ACR rate, even absent exchanges, in which case Connecticut Yankee fuel-out date would have been 2012 (fourteen years), it is not likely that the utility’s preference for wet storage would have changed. 28
j.Bare fuel
A strict interpretation of the Standard Contract raises questions as to dry storage in the non-breach world. The court credits evidence that in the non-breach world, delivery of bare fuel to DOE containers would have required a wet pool. While there were discussions about amendments, the contract requires the delivery of bare fuel to DOE. (Trial Tr. [912] 3586:10-15) (Kouts) (“Q. Mr. Kouts, what would DOE have to do to accept canistered fuel from the nuclear utilities? A. Essentially it would have to modify the standard contracts. It’s the only acceptable waste — bare spent fuel is the only acceptable waste form under the contract.”)
The Yankees simply would not have eliminated their wet pools because they were needed to deliver bare fuel to DOE. There is no inconsistency in the court’s findings as suggested by the government. The court’s previous finding that dual-purpose canisters (storage and transportation) placed on the ISFSI (for delivery to DOE) were reasonable mitigation (a conclusion affirmed on appeal) was expressed in the breach world. Reasonable mitigation at the time of a mitigation decision is not the same inquiry that would occur in the non-breach world.
Mr. Davis testified that Yankee Atomic provided financial support, along with another vendor, to NAC to develop a dual-purpose container. “So that wouldn’t have really existed in a non-breach world because there would have been no motivation for utilities to create it because DOE would be preparing to empty your pool.” (Rem. Tr. [1001] 282:5-9 (Davis).) Mr. Davis testified that Yankee Atomic would not have funded the NAC canisters (precursors to the development of dry storage), testimony the court credits concerning whether requisite dry storage technology would have developed in the non-breach world.
Q. And why do you say that in the non-breach world if DOE had started performing in 1998 at the 1987 ACR rate, why do you say that Yankee Atomic would not have funded the [NAC] canisters?
A. There would have been no reason to fund it. We would have just been wasting money. I don’t think we would have done that. We-you know, it wouldn’t have made economic sense to build a facility that would only be there for a few years. It was a lot of money to build a facility so we wouldn’t even have looked at that as an option.
(Id. at 272:14-273:1 (Davis).)
k. Decommissioning considerations
The government contends that the Yankees would have built dry storage if DOE had performed at the 1987 ACR rates in order to remove the fuel assemblies and decommission the wet pool along with the adjacent reactor. In Yankee I, the court rejected the government’s argument that dry storage would have been built regardless of the breach to ease decommissioning efforts and reduce expense. 73 Fed.Cl. at 296, 297 . That finding, which was not disturbed by the Federal Circuit, is not impacted by rate.
l. The impact of findings in other SNF cases
At the time of post-trial briefing, no award had been based on exchanges. The government argued that to the extent exchanges *707 were relied upon to award damages to another utility, those allocations should then be removed from the exchanges market, reducing available supply. It is argued that to fail to account for market reduction could result in the government incurring damage liability for more than one utility using the same allocation.
Both Dairyland and PG & E III relied on their ability to accelerate their SNF removal positions with exchanges. In Dairyland, the court found by preponderant evidence that Dairyland, also a shut-down plant, would have purchased and exchanged allocations, so that its entire wet pool inventory of 38 MTU would have been removed by the end of 1998 through the purchase of 1998 allocations from other utilities. 90 Fed.Cl. at 626-35 . Dairyland already had allocations for 6.9 MTU under the 1987 ACR, 90 Fed.Cl. at 627 ; therefore would have exchanged/purchased 31.1 MTU from other utilities. As a result, 31.1 MTU would no longer be in the market, reducing the 1998 allocations market by approximately three percent (1200 MTU 1998 allocation minus 31.1 MTU equals 1168.90 MTU — an approximate three percent reduction). In PG & E III, roughly 16 MTU of the 1998 allocations would have been acquired thi’ough exchanges in order for that utility to empty its pool in 1998, 92 Fed.Cl. at 185, and further reducing the remaining 1998 allocations market (1168.90 MTU minus 16 MTU equals 1152.90 MTU). Eliminating the allocations purchased in both cases results in a total market reduction of 47.1 MTU, about four percent of the total 1200 MTU in 1998 under the 1987 ACR. Crediting Mr. Graves’ opinion evidence that limited market participation would not materially alter results, and acknowledging and assuming the reductions that would occur, with the present evidence, hypothetical over subscription of allocations in the market does not rise to any level that would justify concern.
m. Removals without exchanges
According to the government, under the 1987 ACR, given the age of their SNF, their maximum allocations without any exchanges would produce fuel-out dates of 2009 for Yankee Atomic, 2012 for Connecticut Yankee and 2014 for Maine Yankee. With fuel remaining in the pools until the dates listed, it is argued that dry storage, in the form of a smaller facility, would have been built, the costs of which as calculated by the government, are conceded.
The Yankees insist they are not required to establish their SNF removal condition without exchanges. The government counters with the words of the Federal Circuit that “Lwjithout an express timetable for removal of Yankees’ waste in the event the Government had kept its bargain, the Yankees cannot show the expenses they might have avoided.” (Def.’s Resp. to Pis.’ Post-Trial Br. [1018] at 16.) Interpreting the Federal Circuit’s statement, the government argues that combining the 1987 ACR rates with exchanges or swaps does not result in an express timetable.
At the original trial, the government’s position was that “[tjhe Standard Contract provides that SNF will be accepted upon an OFF basis with three exceptions: priority, emergency shipments, and exchanges” and “the Government does not dispute that acceptance allocations could be exchanged under the Standard Contract.” (Def.’s Resp. to Pis.’ PFF [900-1] at 69.) The government’s Proposed Finding was in accord.
61. In response to a request from several commenters, DOE added a provision to the final Standard Contract states [sic] that contract holders “s hall have the right to exchange approved delive'ry commitment schedules with parties to other contracts with DOE for disposal of SNF and/or HLW; provided, however, that DOE shall, in advance, have the right to approve or disapprove, in its sole discretion, any such exchanges.” 10 C.F.R. § 961.11 , Art. V.E.
(Def.’s PFF [882] at 30.)
Mr. Don Davis, former Chairman, CEO and President of both Yankee Atomic and Connecticut Yankee during the time when many of the critical decisions were made, testified in the remand proceedings, over the government’s objection, that regardless of exchanges, if DOE had been preparing for, and full, timely performance was anticipated, dry storage would not have been built be *708 cause it would make no sense to spend what turned out to be some 80 million dollars to build a huge new facility that would be used for 5 or 6 years at the most. (Rem. Tr. [1001] 272:14-280:16 (Davis).)
The government objected to Mr. Davis testifying that Yankee Atomic would not have built dry storage if DOE was performing at the 1987 ACR rates without augmentation or exchanges, because he testified in deposition that he had no idea; but if the situation had arisen, a study would have been done. (Rem. Tr. [1001] 273:23-274:6 (Davis).) Regardless of any inconsistencies, this is a very narrow question and cross-examination traveled familiar territory. Any prejudice from this line of questioning was remote. The non-breach world is all hypothetically-based on the performance benchmark chosen by the Federal Circuit long after decisions were made and costs were incurred. Fuel-out dates applying strictly the initial removal allocations in the 1987 ACR were, with the exception of the final year of fuel removal at Maine Yankee (addressed subsequently), not contested. Under the eh’cumstanees presented, the court finds no prejudice in the admission of Mr. Davis’ testimony in this regard. 29
As for Connecticut Yankee, in the breach world, regulators favored dry storage because of the long term storage contemplated as a result of DOE’s lengthy delay in commencing performance. Litigation with the State of Connecticut was a factor in choosing dry storage, again because of the length of delay. Dry storage would not have been economical in the non-breach world of the 1987 ACR. “[W]ith a fixed date and knowing that you were going to be able to clear the pool relatively soon, I think, you know, the idea that you would think about building a new facility, you know, I don’t think that would have been on anybody’s top ten list to do.” (Rem. Tr. [1003] 60:21-61:1 (Davis).)
Mr. Bennet on behalf of Connecticut Yankee and Maine Yankee testified similarly. (Trial Tr. [912] 2328:16-23 (Bennet) (“We wouldn’t have built the ISFSI if the government was performing.... [TJhe construction of an ISFSI is not something that’s what I call fun to do. And, clearly you wouldn’t do it if fuel was being removed from the site. There wouldn’t be a need to_”).)
While longer storage time can provide an economic argument to build dry storage, the preponderant credited evidence supports a conclusion that, with full contract performance by DOE at the 1987 removal rate, dry storage would not have been built. Full government performance would eliminate any incentive to construct an expensive additional facility which itself would have to be decommissioned after a relatively short period of time.
ii. Non-breach world, costs
On remand, the court must determine if there were any costs that the Yankees would have avoided because of the partial breach, to “perform the necessary comparison between the breach and non-breach worlds ... [to] accurately assess the Yankees’ damages.” Yankee Atomic II, 536 F.3d at 1273. The Yankees recognize that breach *709 world costs must be reduced by costs that would have been incurred in the non-breach world — that is avoided costs. (Pis.’ Corrected Post-Trial Br. [1016] at 9 (“The Court must compare the Yankees’ costs with full government performance against the costs incurred by the Yankees in the breach world.”).)
In Mr. Graves’ exchanges market Yankee Atomic spends $14.7 million to acquire earlier approved allocations and empties its pool by 1999. (Rem. Tr. [1001] 71:17-23 (Graves) (“Yankee Atomic was a net buyer. Because they want to move quickly. They are the first party with this group of utilities with a 1998 move requirement, must-move requirement. So they buy a lot of rights in 1998 ... at a net cost of 14.7 million.”).) 30 A deduction for the cost of exchanges was taken in PG & E Ill.
The court, based on the foregoing, finds that plaintiff would have paid $700,000 to exchange its 1999 allocation rights. In response to plaintiffs contention that the costs of exchanges are “deferred,” the court replies that the court is awarding-damages in a but-fof world. In determining those damages, the court considers the costs that it has found would have, more likely than not, been incurred.
92 Fed.Cl. at 188. 31 See Antoria Fed. Sav. & Loan v. United States, 568 F.3d 944, 955 (Fed.Cir.2009) (instructing court on remand to deduct from thrift's breach damages the increased regulatory fees consequent to the non-breach world’s larger portfolio, rejecting the thrift’s claim of government waiver); Bluebonnet Sav. Bank v. United States, 339 F.3d 1341, 1345 (Fed.Cir.2003) (“To derive the proper amount for the damages award, the costs resulting from the breach must be reduced by the costs, if any, the plaintiffs would have experienced absent a breach.”); SMUD III, 91 Fed.Cl. 9, 18 (2009) (concluding that costs that would have been spent in operating the wet pool in the non-breach world, but were avoided because dry storage was constructed in the breach world, must be deducted from damages (citing SMUD II, 70 Fed.Cl. at 375 and Bluebonnet, 339 F.3d at 1344 )).
In Dairyland, the government assailed Mr. Graves’ exchange theory as speculative, but in the alternative, argued that if exchanges were credited, purchasing early acceptance rights would have come at a price, ui'ging that “[i]n the event that the Court elects to credit Dairyland’s exchanges theory, it should offset any award to account for these costs.... Dairyland did not seriously contest the appropriateness of offsetting-damages on this basis.” 32 90 Fed.Cl. at 635 *710 (citation omitted). At the Dairyland trial, Mr. Graves, under cross-examination, concluded that exchange costs would have ranged from one to 21.2 million dollars. The Dairyland court reduced the breach world costs by $16,641,024 — the determined avoided cost of purchasing exchanges. 90 Fed.Cl. at 636 .
That the government may not have urged this deduction for costs of exchanges does not alter the remand instructions to “perform the necessary comparison between the breach and non-breach world.” Yankee II, 636 F.3d at 1273. Accordingly, Yankee Atomic’s cost of purchasing approved allocations — $14.7 million is subtracted from its breach world costs to determine the quantum, or net, costs caused by DOE’s partial breach. The court does not however sua sponte address the Maine or Connecticut Yankees’ net revenue Mr. Graves opined would have resulted from sale of allocations in the non-breach world of the 1987 ACR. It is not certain that either Maine or Connecticut Yankee would be in a position to sell allocations. Moreover, while the $14.7 million cost falls foursquare within the remand instructions, the same is not true for potential revenue and no adjustment in this regard is made.
o. Conclusions on dry storage in the non-breach world
The Yankees’ condition in the non-breach world with full government performance is firmly rooted in the removal rates and allocations of the 1987 ACR and avoids assumptions and estimates of rates. The government’s claim, that the sales/exchanges of allocations used by Mr. Graves to reach his fuel-out dates violates the Federal Circuit’s warnings, lacks validity. “[A]n acceptance rate based on assumption and approximation is not enough to support a finding of causation under the substantial factor test.” Yankee II, 536 F.3d at 1274 (emphasis supplied). The criticized assumption and approximation of the initial Opinion are eliminated with the application of the 1987 ACR removal rate. Determining hypothetical non-breach world actions or costs, in a world that never existed and reaching informed conclusions comprises a task that is not without precedent. See Energy Capital Corp. v. United States, 302 F.3d 1314, 1329 (Fed.Cir.2002) (affirming damage award for breached agreement for lender to provide loans without evidence of loans that would have been made, based in part on expert testimony on market incentives); Hughes Commc’ns Galaxy, Inc. v. United States, 271 F.3d 1060, 1069 (Fed.Cir.2001) (approving crediting of an expert report on the number of plaintiffs satellites the government would have launched in the non-breach world in determining damages); Ace-Federal Reporters, Inc. v. Barram, 226 F.3d 1329, 1333 (Fed.Cir.2000) (upholding damages for breach of transcription contract without evidence of specific proceedings the reporters would have transcribed but for the breach); Locke v. United States, 151 Ct.Cl. 262 , 283 F.2d 521, 524-25 (1960) (affirming damages for breach of a typewriter repair contract without evidence of specific machines plaintiff would have repaired). The findings and conclusions herein are intended to put the Yankees “in the position [they] would have been in had there been no breach.” Hi-Shear Tech. Corp. v. United States, 356 F.3d 1372, 1381 (Fed.Cir.2004) (noting “the plaintiff can meet its burden of proving damages if it ‘furnishes the court with a reasonable basis for computation, even though the result is only approximate’ ”) (citing Hi-Shear Tech. Corp. v. United States, 53 Fed.Cl. 420, 437 (Fed.Cl.2002)).
Credible evidence of actions and intentions of the parties and the application of the express timetable of the 1987 ACR establish a plausible, fair and reasonable non-breach world. Accordingly, the court concludes that the dry storage costs awarded in Yankee I would not have been incurred in the non-breach world of full DOE performance at the rates in the 1987 ACR. In that non-breach world, the Yankees’ dry storage costs would have been zero because dry storage would not have been built. Those dry storage *711 costs, the reasonableness and foreseeability of which were affirmed in Yankee II, are $18,163,366 ($32,863,366 less $14.7 million for cost of exchanges) for Yankee Atomic through 2001; $25,803,986 for Connecticut Yankee through 2001; and $65,705,536 for Maine Yankee through 2002.
III. Causation for Maine Yankee’s rer-acking
On remand, the government concedes that in the non-breach world with removal at the 1987 ACR rates with no exchanges, Connecticut Yankee would not have reracked. Accordingly, with the exception of a relatively small portion of the reraeking costs awarded in Yankee I ($709,837 in AFUDC discussed hereinafter), the government admits that Connecticut Yankee is entitled to $7,641,056 ($8,350,893 awarded in Yankee I, less $709,837) for its pre-breach reracking costs. Yankee Atomic did not rerack in the relevant time frame. (Def.’s Resp. to Pis.’ Post-Trial Br. L1018] at 113.)
The government, however, hypothesizes that in that non-breach world Maine Yankee would have reraeked and the costs it incurred to rerack were not incremental — were not caused by the breach. Alternatively, at minimum, the government would deduct AFUDC costs of $764,163 from the $10,069,018 in reracking costs awarded to Maine Yankee in Yankee I, resulting in recovery of $9,304,855. (Id.)
The Federal Circuit upheld Yankee I’s conclusion that Maine Yankee’s rerack decisions, implementation and expenditures were based on a reasonable belief that DOE was not going to timely perform. Maine Yankee was “ ‘Lmjindful of storage limitations and implementation lead time,’ and ‘well aware of significant delays’ to the Government’s performance ‘from at least the mid-1980s.’ ” Yankee II, 536 F.3d at 1276 (citing Yankee I, 73 Fed.Cl. at 275, 275-284 ). That subsequently the reraeks were not fully installed because of the premature shutdown of the plant, 33 did not negate the reasonableness of Maine Yankee’s mitigating decisions and expenditures.
This court also assesses the reasonableness of the Yankees’ reraeks in light of the record evidence that these mitigation efforts allegedly began years before necessary and allegedly proved completely unnecessary because the reactors shut down early. The record shows that the reraeks were not premature. Rather, the record shows that the Government placed the Yankees in a position requiring immediate steps to find alternate storage and to “accept responsibility to guard against the environmental impact of improperly-disposed and maintained SNF, a situation which the NWPA was enacted to avoid.” Ind. Mich., 422 F.3d at 1375 . In that position, “[ijt would have been improvident for [the Yankees] to have waited until January 1998 before deciding what to do with [their] nuclear waste.” Id. Accordingly, the trial court found, and this court affirms, that in light of the amount of time required to engineer, fabricate, and install new racks, the Yankees’ rerack schedule was reasonable.
The record also shows that the reraeks were reasonable even though early closure of some facilities rendered some of the efforts unnecessary. The Yankees are “ ‘not precluded from recovery ... to the extent that [they have] made reasonable but unsuccessful efforts to avoid loss.’ ” Id. (quoting Restatement (Second) of Contracts § 350 comment b). Because the reraek efforts were reasonable, foreseeable, and caused by the Government’s partial breach, their ultimate success and usage is irrelevant. Accordingly, this court affirms the trial court’s findings that the Yankees’ rerack decisions were “commercially reasonable” and “foreseeable to DOE *712 at the time of contracting.” Yankee I, 73 Fed.Cl. at 279, 283 .
Yankee II, 536 F.3d at 1276.
The Federal Circuit remanded to assess causation for awarded costs with full government performance and the 1987 ACR:
the trial court must apply the [1987 ACRJ rate when assessing causation under the substantial factor test. Thus, although this court affirms the Court of Federal Claims’ findings with respect to the foreseeability and reasonableness prongs of the pre-breach mitigation damages test, it must nevertheless remand as to causation. In particular, the Court of Federal Claims must apply the Standard Contract acceptance rate in evaluating whether the Government’s partial breach of contract was a substantial factor in causing [Maine Yankee] to reraek.
536 F.3d at 1276-77.
Maine Yankee’s reactor core held 217 assemblies, approximately one third of which were removed in each refueling outage. The removed SNF assemblies were added to the wet pool inventory, and replaced in the reactor core with fresh fuel assemblies. In the event that the reactor needed repairs or maintenance, all 217 assemblies — the entire core — would have to be temporarily placed in the wet pool. The reservation of sufficient room in the pool for this contingency is referred to as full core reserve (“FCR”). The parties dispute whether Maine Yankee in the defined non-breach world would have rer-aeked at a cost of some $10.3 million in order to preserve FCR. If so, then its reracking expenditures in the breach world were not incremental or caused by the breach.
Historically, Maine Yankee maintained FCR. 73 Fed.Cl. at 275 . While the NRC did not require FCR, it was preferred.
There’s a concept called full core reserve, and that was a concept where we made an effort to make sure that we had sufficient space in the spent fuel pool to temporarily discharge the fuel that was in the reactor if that was necessary for, typically for maintenance reasons. Again, that would be a temporary discharge. And the fuel was meant to go back into the reactor.
(Trial Tr. [912] 2850:14-21 (Whittier).)
Maine Yankee also believed that it was a prudent business decision ... to maintain full core offload capability.... If you were to lose the ability to offload the core, and a need came up to offload the core for a maintenance reason, then the plant might not be able to operate.
(Id at 2856:17-25 (Whittier). )Previously, Maine Yankee temporarily removed all the assemblies from the core into the pool once to repair the thermal shield and inspect the reactor vessel. (Id at 2857:11-17 (Whittier).)
Starting in the mid-1980s, Maine Yankee monitored DOE’s preparation for contract performance, or lack thereof. Maine Yankee was mindful of the decreasing storage area in its wet pool, and anticipated that either DOE would remove SNF from its pool thereby increasing storage, or the storage capacity of the pool would have to be increased. “In the mid 1980s ... following the second refuelling LsieJ, we knew that ... one [of] 34 two things would have to happen in the mid to late 1990s, and that is that DOE would have to honor its obligations to begin taking spent fuel in 1998, or Maine Yankee would have to somehow increase its on-site storage capacity or capability for spent fuel.” (Id at 2853:5-11 (Whittier).)
Maine Yankee monitored its inventory at every refueling cycle and projected future discharges into the pool and remaining spaces in the pool. Technical improvements resulted in fewer assemblies being removed from the reactor and added to the pool with each refueling. An unexpected shutdown in 1995 to repair the steam generator tubes further reduced the number of assemblies going into the pool. (Id at 2855:5-2856:6; 2857:22-2860:10 (Whittier) (Re-calculation of projected discharges of SNF from the reactor — from 72 assemblies to 56 to 60 — extended the probable full pool date).) Estimates based on actual data from January 1993 and January 1995 were that Maine Yankee would have had sufficient room in its pool to offload *713 all 217 assemblies from the core until May of 1997. (Id. at 2851:19-2852:14 (discharge of fuel assemblies from June 1974 to May 1997); id. at 2857:22-2860:10; 2860:15-2861:10 (Maine Yankee’s projected date for losing FCR was extended from September 1996 to May 1997); id. at 2869:24-2870:7 (explaining that the 1995 plant shutdown for repair of the steam generators caused “a one year, one refueling cycle” delay); id. at 2850:6-21 (the capacity of the pool before the third rerack-ing).)
Following a 1992 decision of its Board of Directors, in January of 1993, Maine Yankee filed an application with the Nuclear Regulatory Commission (“NRC”) to rerack to increase its wet pool storage capacity from 1417 assemblies to 2019. 35 (PX 829.) Crediting preponderant documents and testimony adduced at trial and on remand, the court again concludes that DOE’s delay was the substantial causal factor for Maine Yankee’s reraek application. At the time the reracking decisions were made, Maine Yankee assumed it would be operating until October of 2008 — the end of its operating license. Maine Yankee’s 1993 NRC application stated (1) DOE’s delay was the reason for the increased storage need and (2) there was sufficient room in the spent fuel pool for Maine Yankee to operate until 1999. “The spent fuel storage pool with the existing racks will be unable to accommodate the fuel planned to be discharged after the 1999 refueling. The unavailability of a high-level waste repository and lack of assurance that the Federal Government will take possession of the spent fuel by the date that the spent fuel pool is full necessitate [sic] the reracking of the pool.” (PX 829 at MOF035617 (emphasis supplied); Trial Tr. [912] 6257:9-12 (Jordan) (stating that Maine Yankee pursued alternative storage options because “ [w]e recognized at that time ... the probability of the successful transfer of fuel to the [DOE] was low.”); 2866:16 (Whittier) (By January 1993, Maine Yankee “did not expect DOE to perform in '98.”).)
In the non-breach world of DOE performance, Maine Yankee would not have spent some $10 million to preserve or maintain FCR contingency when DOE’s removal, even at the straight OFF allocations, would rather rapidly reduce its pool inventory. (Trial Tr. [912] 2870:21-23; 2871:6-10) (Whittier) (“If we had believed that DOE was going to perform its contract obligations, we would not have performed the third reracking” because “additional storage ... capability beyond what we already had, assuming that DOE was going to perform, was not required,” but instead Maine Yankee would have used “the temporary rack ... that we were licensed to use [to] provide L ] sufficient additional storage such that the full core could have been offloaded on a temporary basis, should it have been required.”); 2870:17-2876:7; 2905:19-2906:17 (January 1993 and January 1996 fuel data projections confirm that only a temporary rack would have been needed.) A temporary cask pit rack, as its name implies is temporary, being placed in the cask pit area of the spent fuel pool which is typically empty except for refueling operations and, in the non-breach world for transfer to DOE’s containers for transportation offsite.
Following NRC approval, Maine Yankee proceeded with an incremental reracking plan in order to minimize and possibly avoid expenditures in case DOE would perform. The racks were fabricated in 1994. Installation began after the initial shut down of the reactor in December of 1996 and terminated in August of 1997 when Maine Yankee decided the shutdown would be permanent.
Responding to the government’s argument that Maine Yankee was going to lose FCR in 1996 before DOE was to perform, and therefore wuuld have reraeked anyway in the non-breach world, the court in its original Opinion credited the testimony of government witness Robert Jordan 36 that if DOE had timely begun to perform, Maine Yankee would have been able to continue to operate until 1998 when DOE’s performance was to *714 have commenced, and would have tolerated loss of FCR for a limited period of time until then, using a thirty assembly temporary rack, if necessary. Maine Yankee contends that the court’s conclusions are neither altered by rate, nor appropriately reexamined because DOE’s performance and removal of assemblies from its pool inventory would have begun in 1998, and its allocations under the 1987 ACR, even assuming no exchanges or priority, would exceed Maine Yankee’s discharges into the pool such as to alleviate any subsequent storage shortage. Accordingly, the reracking costs caused by DOE in the breach world would not have been incurred in the non-breach world and are recoverable.
On remand, the government would revisit Maine Yankee’s perceived predictions of room in its wet pool with the testimony of its expert Mr. David Garver Slear, III, 37 who examined available data in 1992 at or about the time of the NRC application, and opined that Maine Yankee would have reracked anyway, being unwilling to forego the loss of FCR for four years. According to the government, Maine Yankee’s position rests on later estimations based on longer fuel cycles and smaller reloads made possible by technological advances, and the 1995 unexpected shut down of the reactor which also reduced the number of assemblies being added to the inventory, all of which would prolong available room in the pool, but all of which came after the reraeking decisions. The government also contends that despite remand directions, Maine Yankee failed to tether any testimony of the 1987 ACR rate and OFF to its decision to rerack or not, therefore did not meet its remand burden.
Crediting preponderant evidence of the action and intentions of the parties in the non-breach world of the 1987 ACR, and full government performance, applying data from that time, Maine Yankee would not have reracked. Maine Yankee’s January 25, 1993 NRC reracking application included a historical and projected chart of the spent fuel pool inventory. The chart signaled loss of pool capacity after the 1999 refueling, not loss of FCR. 38 (PX 829 at M0F035617.) An internal Maine Yankee memorandum from Walter Johnson to David Rivard (those copied on the memo include Messrs. Whittier and Jordan) two months later, on March 1, 1993, is consistent and contains projected remaining pool space, reporting licensed capacity for 1476 assemblies, 372 39 remaining spaces for assemblies and a license to temporarily store an additional 121 assemblies in the cask lay-down area. 40 (DX 189.) Cycle discharges *715 starting in 1990 of 72 and then, starting in 1995, projected to be 68 assemblies, are charted along with the decreasing remaining spaces. 41 “The ability to perform a full core discharge will be lost after the cycle 15/16 refueling outage in 1996. 42 ... The ability to permanently discharge a batch of spent fuel will be lost after the cycle 17/18 refueling outage in 1999.” (DX 189 at M0F026521.) A temporary rack is not considered in either of these projections. May 13, 1992 43 and February 9, 1994 memoranda contain similar projections. (DX 151, 204.)
Applying Maine Yankee’s removal allocations under the 1987 ACR strictly on their OFF basis with no exchanges or augmentation leads to the conclusion that Maine Yankee would not have reracked. Starting with 372 spaces and the March 1, 1993 data (DX 189), and continuing with the projected discharges into the pool, applying the assemblies that would have been removed by DOE with the 1987 ACR and adding 30 spaces from the temporary rack that the court concludes would have been acquired to be used if the need arose, approximates Maine Yankee’s situation in non-breach world. While Mr. Slear’s analysis assumed DOE’s removals would be at the end of the calendar year, the court assumes that in good faith and full performance, removals would be scheduled before upcoming refueling outages and SNF additions to the pools, or that with fuel-planning or other measures, discharges into the pool would wait until additional room was made available by DOE’s removals, or at minimum that was the parties’ intentions at the relevant times. 44 See Precision Pine & Timber, Inc. v. United States, 596 F.3d 817 , 820 n. 1 (Fed.Cir.2010) (“Both the duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith and fair dealing.”); Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1365 (Fed.Cir.2009).
On credited evidence of the non-breach world, DOE’s performance would have commenced prior to the 16/17 cycle discharge and removed 224 SNF assemblies, Maine Yankee’s 1998 allocation in the 1987 ACR. With the 16/17 cycle discharge, there would have been 320 spaces remaining in the pool— 350 with the temporary rack. Thereafter, the pool would never have been full nor fallen below FCR. Inventory would have been less than 217 needed for FCR contingency for the limited time period from August of 1996 until DOE’s initial removal of 224 assemblies no later than January 31, 1998. Maine Yankee would not have reracked in this plausible non-breach world.
_Maine Yankee (DX 189, DX 16, Tables A.1 — A.10, HQR0012729-67.)_
Discharge Cycle DOE Removal and Removal Discharged Locations Assemblies Locations _Dates_Assemblies Remaining_(1987 ACR)_Remaining
May 1992 372
13/14 — Aug.1993 72 300 (330 *)
*716 14/15 — Mar.1995 68 232 (262 * )
15/16 — Aug.1996 68 164 (194 *)
DOE 1998 Removal 224 388 (418 *)
16/17 — Feb.1998 ** 320 (350 *)
DOE 1999 Removal 320 (350 *)
17/18 — Aug.1999 ** 68 252 (282 *)
DOE 2000 Removal 321 (351 *)
DOE 2001 Removal 129 450 (480 *)
18/19 — Feb.2001 ** 68 382 (412 *)
DOE 2002 Removal 73 455 (485 *)
19/20 — Aug.2002 ** 68 387 (417 *)
DOE 2003 Removal 73 460 (490 *)
DOE 2004 Removal 146 606 (636 *)
20/21 — Feb.2004 ** 68 (568 *)
DOE 2005 Removal 73 611(641 *)
21/22 — Aug.2005 ** 68 543 (573 *)
DOE 2006 Removal 65 608 (638 *)
DOE 2007 Removal 73 681 (711 *)
22/23 — Feb.2007 ** 68 613 (643 *)
As government expert Mr. Slear admitted, in the non-breach world of full performance and the 1987 ACR, Maine Yankee’s pool would not be completely full, meaning that if walling to forego FCR contingency pending DOE’s performance which would rapidly empty the pool leading to the decommissioning of the pool along with the plant making the racks redundant, Maine Yankee would not have reracked.
Q. [Y]ou would agree that Maine Yankee could have avoided a re-rack in the 1990s if it had been willing to forego having [FCR] for a period of time?
A. If the management team in '91 and '92 had been willing to forego [FCR], they would have not had to re-rack in order to continue to operate the plant, unless, in the period I think around — no, I think they would have been able to continue to reload the core also.
(Rem. Tr. [1007] 252:7-18 (Slear).) That Mr. Slear did not factor in acquisition of a 30-assembly temporary rack further bolsters the court’s conclusion that space would have been available, and while not the utility’s preference, it allowed for continued operation yet avoiding a ten million dollar cost of rer-acking, a significant and short-term expenditure.
The government’s reasoning is that Maine Yankee would have reracked in the non-breach world in order to preserve FCR because that is what they did in the breach world. The court rejects that symmetry.
The court credits preponderant evidence that Maine Yankee would have accepted the risk of operating without FCR rather than spend some $10 million for reracking to cover a contingency of limited duration, particularly mindful that this plant was nearing the end of its licensed life, and DOE’s removals would alleviate that risk.
If the Department of Energy was going to be coming and picking up the fuel, and we were confident that we knew what that *717 schedule was, then in all probability, we would have accepted the loss of full core discharge and we would have accepted the use of the temporary rack in the cask pit area and be able to have waited for the Department of Energy to alleviate the storage problem in the spent fuel pool.
(Trial Tr. [912] 6259:23-6260:5 (Jordan).) Maine Yankee would not be alone. Oyster Creek, where Mr. Slear worked for years, operated for the better part of six years without FCR and he testified that “La] utility can work around not having [FCR] until it doesn’t have the room to off load the core at all.” (Rem. Tr. [1007] 253:24-254:4 (Slear).). See Wis. Elec. Power Co. v. United States, 90 Fed.Cl. 714, 744 (2009), appeal do

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6661227. Public record. Not legal advice.