# Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR40996

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** February 1, 2012
- **Citation:** R40996

## Text

Contract Liability Arising from the
Nuclear Waste Policy Act (NWPA) of 1982
(name redacted)
Legislative Attorney
February 1, 2012

Congressional Research Service
7-....
www.crs.gov
R40996

CRS Report for Congress
Prepared for Members and Committees of Congress

Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

Summary
Almost 30 years ago, Congress addressed growing concerns regarding nuclear waste management
by calling for the federal collection of spent nuclear fuel (SNF) and high-level waste for safe,
permanent disposal. To this end, the Department of Energy (DOE) was authorized by the Nuclear
Waste Policy Act (NWPA) to enter into contracts with nuclear power providers to gather and
dispose of the provider’s SNF in exchange for payments into the statutorily established Nuclear
Waste Fund (NWF). Under the terms of the NWPA, these contracts were to require that the
federal government begin disposal of the nation’s nuclear waste no later than January 31, 1998.
Over 10 years ago, DOE breached these nuclear waste contracts by failing to begin the
acceptance and disposal of SNF by the statutory deadline established in the NWPA. As a result,
nuclear utilities have spent billions of dollars on temporary storage for toxic SNF that DOE was
contractually and statutorily required to collect for disposal. The breach has triggered a prolonged
series of suits by nuclear power providers, many of which continue unresolved to this day.
Approximately 78 breach of contract claims have been filed against DOE since 1998, resulting in
over $2 billion in damage awards and settlements thus far. In 2010 alone, the U.S. Court of
Federal Claims awarded nuclear utilities approximately $507 million in contract damages. DOE
predicts that damages stemming from partial breach of contract claims will measure close to
$20.8 billion if the government is able to begin accepting SNF by 2020. Approximately $500
million in additional legal damages will continue to build with each year beyond 2020 that DOE
is unable to begin accepting SNF. All paid legal damages are drawn from the DOJ Judgment Fund
rather than the DOE budget.
DOE’s liability for breach of contract was first established in 1996 by the U.S. Court of Appeals
for the District of Columbia in Indiana Michigan Power Co. v. U.S. After DOE hesitated to act on
its legal obligations, citing the absence of a completed SNF storage facility (Yucca Mountain), the
court issued a writ of mandamus mandating that DOE “proceed with contractual remedies in a
manner consistent with NWPA’s command that it undertake an unconditional obligation to begin
disposal of SNF by January 31, 1998.” The mandamus, issued in Northern States Power Co. v.
U.S., may prohibit DOE from deflecting liability by arguing that the lack of an existing storage
facility constitutes an “unavoidable delay.”
This report will present a brief overview of the NWPA and its subsequent amendments; provide a
survey of key issues that have emerged during the protracted waste storage litigation; and
consider the potential for future liability arising from further delays in the storage and disposal of
nuclear waste.

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

Contents
Introduction...................................................................................................................................... 1
The NWPA and the Standard Contract............................................................................................. 2
The Nuclear Waste Policy Act of 1982...................................................................................... 2
Breach of the Standard Contract................................................................................................ 4
Waste Disposal Contract Litigation ................................................................................................. 4
DOE’s Statutory Obligation to Begin Accepting SNF .............................................................. 6
Prohibiting the “Unavoidable Delay” Defense.......................................................................... 7
Litigation Continues: Remedies, Offsets, and Damages ........................................................... 9
Remedies Under Standard Contract Inadequate.................................................................. 9
NWF Offset Invalid........................................................................................................... 10
Calculating Damages......................................................................................................... 11
Jurisdictional Dispute Develops in Nebraska Public Power District v. United States ............ 13
The Court of Federal Claims............................................................................................. 14
The Federal Circuit............................................................................................................ 17
Future Contract Liability ............................................................................................................... 21
Defense Waste ......................................................................................................................... 23
Conclusion ..................................................................................................................................... 23

Figures
Figure 1. Litigation Timeline ........................................................................................................... 6

Contacts
Author Contact Information........................................................................................................... 24

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

Introduction
Almost 30 years ago, Congress addressed growing concerns regarding nuclear waste management
by calling for the federal collection of spent nuclear fuel (SNF) and high-level waste for safe,
permanent disposal. To this end, the Department of Energy (DOE) was authorized by the Nuclear
Waste Policy Act (NWPA) to enter into contracts with nuclear power providers to gather and
dispose of the provider’s SNF1 in exchange for payments into the statutorily established Nuclear
Waste Fund (NWF). Under the terms of the NWPA, these contracts were to require that the
federal government begin disposal of the nation’s nuclear waste no later than January 31, 1998.
Over 10 years ago, DOE breached these nuclear waste contracts by failing to begin the
acceptance and disposal of SNF by the statutory deadline established in the NWPA. As a result,
nuclear utilities have spent billions of dollars on temporary storage for toxic SNF that DOE was
contractually and statutorily required to collect for disposal.2 The breach has triggered a
prolonged series of suits by nuclear power providers, many of which continue unresolved to this
day.
Approximately 78 breach of contract3 claims have been filed against DOE since 1998, resulting
in over $2 billion in damage awards and settlements thus far.4 In 2010 alone, the U.S. Court of
Federal Claims awarded nuclear utilities approximately $507 million in contract damages.5 Many
of these awards, however, remain on appeal with the U.S. Court of Appeals for the Federal
Circuit and are not yet final.6 Estimates for the total potential liability incurred by DOE as a result
1

Spent nuclear fuel consists of radioactive fuel rods, containing uranium and plutonium, that have been permanently
withdrawn from a nuclear reactor because they can no longer efficiently sustain a nuclear chain reaction. See CRS
Report RL33461, Civilian Nuclear Waste Disposal, by (name redacted).
2
U.S. nuclear power providers each individually incur substantial costs to store radioactive SNF in large pools or in
“dry casks” located outside of the facility. Steve Hargreaves, Nuclear Waste: Coming to a Town Near You?,
CNNMoney.com, November 4, 2009, available at http://www.money.cnn.com. See also, CRS Report R40202, Nuclear
Waste Disposal: Alternatives to Yucca Mountain, by (name redacted).
3
Most of these claims included a Fifth Amendment takings claim in addition to the breach of contract claim. The
takings claims, however, were dismissed early in the litigation. See e.g., Consumers Energy Co. v. U.S., 84 Fed. Cl.
152 (2008); Niagara Mohawk Power Corp. v. U.S., 2011 U.S. Claims LEXIS 616 (Fed. Cl. 2011) (“Plaintiffs’ right to
have the DOE dispose of SNF clearly arises from and was created by the contracts. Absent the contracts, the DOE
would have no obligation to dispose of plaintiffs’ SNF. Plaintiffs’ proper remedies therefore lie in breach of contract
claims, not takings claims.” (citations omitted)).
4
See, Final Report to the Secretary of Energy, Blue Ribbon Commission on America’s Nuclear Future, at 80 (January
26, 2012) available at http://brc.gov/sites/default/files/documents/brc_finalreport_jan2012.pdf. According to the
Congressional Budget Office, as of July 27, 2010 DOE’s contract liability amounted to $1.8 billion—approximately
$725 million of which was paid pursuant to settlements. See, Statement of Kim Cawley, Chief, Natural and Physical
Resources Costs Estimates Unit, Congressional Budget Office, Before the House Committee on the Budget, July 27,
2010 (hereinafter CBO Testimony). The Department of Justice has measured the government’s existing liability,
through settlements and entered judgments, at $2 billion. See, Statement of Michael F. Hertz, Deputy Assistant
Attorney General, Civil Division, Department of Justice, Before the House Committee on the Budget, July 27, 2010.
Since July 27, 2010, the U.S. Court of Federal Claims has awarded nuclear utilities approximately $198 million.
5
See, Energy Northwest v. U.S., 91 Fed. Cl. 531 (2010)(awarding $59,859,345 in damages), rev’d in part by Energy
Northwest v. U.S., 641 F.3d 1300 (Fed. Cir. 2011)(reducing award by approximately $7 million); Consol. Edison Co.
of N.Y., Inc. v. U.S. 92 Fed. Cl. 466 (2010)(awarding $106,572,386 in damages); Boston Edison Co. v. U.S., 93 Fed.
Cl. 105 (2010)(awarding $4,224,696 in damages), rev’d in part by Boston Edison Co. v. U.S., 658 F.3d 1361 (Fed. Cir.
2011); Southern Cal. Edison Co. v. U.S. 93 Fed. Cl. 337 (2010)(awarding $142,394,294 in damages); Yankee Atomic
Power Co. v. U.S., 94 Fed. Cl. 678 (September 7, 2010)(awarding approximately $141 million in damages); Entergy
Nuclear Vt. Yankee, LLC v. U.S., 95 Fed. Cl. 160 (September 29 2010)(awarding $46,645,454 in damages); Kansas
Gas & Elec. Co. v. U.S., 95 Fed. Cl. 257 (November 30, 2010)(awarding $10,632,454 in damages).
6
Of the 78 cases filed as of February 2011, only 13 reached a final unappealable verdict. Twenty-four remain pending,
(continued...)

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

of the nuclear waste contract litigation exceed $20 billion.7 Moreover, after decades of political,
legal, administrative, and environmental delays, the Obama Administration has eliminated all
funding for the Yucca Mountain repository project, closed the Office of Civilian Radioactive
Waste Management,8 and reemphasized an intention to pursue other alternatives for the disposal
of SNF by establishing the Blue Ribbon Commission on America’s Nuclear Future. In addition,
DOE has attempted to permanently withdraw the Yucca Mountain construction authorization
license from consideration before the Nuclear Regulatory Commission (NRC)—an action that
triggered two separate lines of litigation before the NRC and the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit).9 Accordingly, contract damages will continue to build
as delays in the disposal of SNF continue.10
This report analyzes more than 15 years of ongoing litigation over the government’s obligations
to collect and dispose of SNF under the NWPA.11 First, the report will provide a brief overview of
the NWPA, the statute’s subsequent amendments, and its relationship to nuclear waste disposal.
Second, the report will provide a survey of key legal issues that have emerged during the
protracted waste storage contract litigation, including a discussion of a significant jurisdictional
dispute between the D.C. Circuit and the U.S. Court of Federal Claims. Finally, the report will
consider the prospects for future liability arising as a result of further delays in the disposal of the
nation’s high-level nuclear waste.

The NWPA and the Standard Contract
The Nuclear Waste Policy Act of 1982
Responding to the serious hazards of nuclear waste, Congress passed the Nuclear Waste Policy
Act of 1982 in an effort to centralize the long-term management of nuclear waste by making the
federal government responsible for collecting, transporting, storing, and disposing of the nation’s
SNF.12 In order to achieve this goal, the NWPA established a statutory system for selecting a site
for a geologic repository for the permanent disposal of nuclear waste.13 DOE was authorized by
the statute to carry out the disposal program and develop the permanent nuclear waste repository.
Commercial nuclear power owners and operators would fund a large portion of the program

(...continued)
23 were settled, and seven were voluntarily withdrawn. Final Report to the Secretary of Energy, Blue Ribbon
Commission on America’s Nuclear Future, at 80 (January 26, 2012).
7
Id. at 79.
8
The NWPA created the Office of Civilian and Radioactive Waste Management to carry out the DOE’s obligations to
manage and dispose of high-level radioactive waste and SNF. 42 U.S.C. §10224.
9
For more detailed information on the proposed Yucca Mountain shutdown see CRS Report R41675, Closing Yucca
Mountain: Litigation Associated with Attempts to Abandon the Planned Nuclear Waste Repository, by (name redacted).
10
See, CBO Testimony, at 1 (“The Department of Energy has not yet disposed of any civilian nuclear waste and
currently has no identifiable plan for handling that responsibility.”).
11
This report does not discuss the significant amount of environmental litigation relating to the standards for licensing
the Yucca Mountain facility to be applied by the Nuclear Regulatory Commission.
12
P.L. 97-425, The Nuclear Waste Policy Act, codified at 42 U.S.C. §§10101 et seq.
13
Id. at §§111-125.

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

through significant annual contributions, or fees, to the newly established Nuclear Waste Fund
(NWF).14
To carry out the statutory scheme created by the NWPA, DOE was also authorized to enter into
contracts with private nuclear facilities to allow the federal government to take possession of
nuclear waste and ensure its storage and disposal in the prospective permanent repository.15
Section 302 of the NWPA sets out the critical statutory deadline established in the NWPA and
forms the main basis for litigation. This provision mandates:
(A) Following commencement of operation of a repository, the Secretary shall take title to
the high-level radioactive waste or spent nuclear fuel involved as expeditiously as practicable
upon the request of the generator or owner of such waste or spent fuel; and
(B) In return for payment of fees established by this section, the Secretary, beginning not
later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear
fuel involved as provided in this subtitle.16

In an effort to streamline the collection and disposal process, DOE elected to create a single
“Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste”
(Standard Contract) for use with nuclear power providers. DOE chose to develop the Standard
Contract through the formal notice-and-comment rulemaking process. The final contract,
published in the Federal Register, somewhat modified the language of the NWPA and provides:
The services to be provided by DOE under this contract shall begin, after commencement of
facility operations, not later than January 31, 1998 and shall continue until such time as all
SNF ... has been disposed of.17

Although the NWPA did not expressly mandate that all nuclear utility providers enter into an
agreement with DOE for the disposal of nuclear waste, the utilities were required to enter into the
Standard Contract as a condition of renewing or obtaining the required operating license from the
Nuclear Regulatory Commission (NRC).18 All operating nuclear facilities, therefore, became
parties to the Standard Contract.
By 1987, pursuant to its obligations under the NWPA, DOE had identified three potential sites for
the permanent repository: Yucca Mountain, Nevada; Hanford, Washington; and Deaf Smith
County, Texas. In 1987, Congress amended the NWPA to name Yucca Mountain as the sole
candidate site for the permanent repository.19 The amendments, strongly lobbied for by the
congressional delegations from Washington and Texas, did not, however, end the DOE selection
and approval process which continued as outlined under the NWPA.

14

Id. at §302.
Id. at §302(a).
16
Id. at §302(a)(5) (emphasis added).
17
10 C.F.R. §961.11.
18
42 U.S.C. §10222(b)(1)(A).
19
42 U.S.C. §10172.
15

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Breach of the Standard Contract
By 1993, DOE had made little progress in preparing to take possession of SNF, and the Yucca
Mountain facility was at least a decade or more away from completion. Concerned as to whether
DOE would be able to meet its contractual obligations by the end of January 1998, the nuclear
utilities, which had been paying into the NWF for 11 years,20 requested in writing that DOE
address its responsibilities under the NWPA and update the signatories of the Standard Contract
on DOE’s overall preparedness. DOE initially responded to this request with an informal letter,
stating that DOE’s interpretation of the Standard Contract was that the department’s contractual
obligations were not triggered until the nation’s permanent repository was complete.21
In response to this interpretive dispute, DOE sought comments from the public on the
department’s statutory obligations under the NWPA and the Standard Contract. After further
review, DOE issued a “Final Interpretation of Nuclear Waste Acceptance Issues” which formally
pronounced the department’s position that it had no “legal obligation under either the [NWPA] or
the Standard Contract to begin disposal of SNF by January 31, 1998, in the absence of a
repository or interim storage facility.”22 Pursuant to this interpretation, the department added that
it would not begin accepting nuclear waste from nuclear utilities by the date specified in the act,
nor did it have authority under the NWPA to provide interim storage for spent nuclear fuel.23 In
the alternative, the DOE notice stated that were Section 302 to create an unconditional obligation
on the part of DOE to begin disposing of nuclear waste by January 31, 1998, redress should be
governed by the “unavoidable delay” provisions of the Standard Contract which expressly states
that “no party shall be liable for damages in the case of unavoidable delay.”24
Nuclear utility companies, having paid billions into the NWF since 198225 in addition to the
millions spent for on-site temporary storage, turned to the federal courts to review DOE’s
interpretation of its own obligations under the NWPA and the Standard Contract.

Waste Disposal Contract Litigation
Issues relating to the NWPA have been consistently litigated for the last 15 years, and will
continue to be litigated into the immediate future. Many difficult legal questions have arisen
during this time period due to the somewhat peculiar relationship between the NWPA and the
Standard Contract and the courts’ attempts to distinguish between statutory and contractual duties.
Although DOE argued early on that the department had no obligations absent a completed
permanent repository, the courts have ruled that DOE had a statutory obligation to begin
20

Fees by nuclear providers into the NWF have been estimated at $750 million annually. CBO Testimony, at 3.
See, Indiana Michigan Power Co. v. U.S., 88 F.3d 1272, 1274 (D.C. Cir. 1996).
22
60 Federal Register 21,793-94 (May 3, 1995).
23
Id. at 21,794.
24
Id. at 21,797.
25
As of the end of FY2009, the NWF had an existing balance of $23.6 billion. Utilities have contributed approximately
$17.1 billion in fees which have accumulated $13.8 billion in interest. Yucca Mountain related expenditures from the
fund amount to approximately $7.3 billion. CBO Testimony, at 2. The Office of Civilian Radioactive Waste
Management estimated that the NWF balance at the end of FY2010 would be $25.4 billion. Office of Civilian
Radioactive Waste Management, Office of Business Management, Summary of Program Financial & Budget
Information, January 31, 2010.
21

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collecting SNF by no later than January 31, 1998.26 As that statutory obligation was also
converted into a contractual obligation through the Standard Contract, the courts have also
determined that DOE’s delay in collecting the nuclear utilities’ SNF has placed the federal
government in partial breach of contract.27 Additionally, overturning a divergent decision by the
U.S. Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
has affirmed a D.C. Circuit order that prohibits DOE from concluding that the lack of a
permanent repository excuses DOE from liability for the delay in acceptance of SNF.
Approximately 78 lawsuits have been filed against DOE related to the department’s failure to
commence the collection and disposal of SNF. Of the lawsuits, a large majority remain pending.28
As of the end of 2011, the government’s liability—based on settlements, final judgments, and
entered judgments under appeal—stands at over $2 billion.29 The following section will highlight
key court decisions that have emerged from the ongoing contractual dispute between DOE and
the nuclear power utilities.

26

Indiana Michigan Power Co. v. U.S., 88 F.3d 1272, 1277 (D.C. Cir. 1996).
See, e.g., Pacific Gas & Elec. Co. v. U.S., 536 F.3d 1282, 1289 (Fed. Cir. 2008).
28
Final Report to the Secretary of Energy, Blue Ribbon Commission on America’s Nuclear Future, at 80 (January 26,
2012) available at http://brc.gov/sites/default/files/documents/brc_finalreport_jan2012.pdf.
29
Id. See also, supra note 4.
27

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

Figure 1. Litigation Timeline

Source: Congressional Research Service.

DOE’s Statutory Obligation to Begin Accepting SNF
The first NWPA-related claim against DOE was filed in the D.C. Circuit in 1996.30 Although
DOE had not yet breached the contract, as performance was not required before January 31, 1998,
Indiana Michigan Power Company sought a preemptive judicial review of the department’s
determination that it had no obligation to begin accepting SNF until the completion of the Yucca
Mountain facility.

30

Indiana Michigan Power, 88 F.3d 1272.

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Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982

In Indiana Michigan Power Co. v. Department of Energy, the D.C. Circuit, applying the
Chevron31 analysis for reviewing an agency’s statutory interpretation, invalidated DOE’s
interpretation as contrary to the plain meaning of the NWPA.32 The court reasoned that Section
302(A) and Section 302(B) represented independent statutory obligations. While the obligation to
“take title to” nuclear waste in section 302(A) may have been conditioned on the construction of a
repository, the obligation to “dispose” of nuclear waste under Section 302(B) contained no such
limitation.33 Indeed, DOE’s duty to commence disposal of nuclear waste, held the court, was to
begin “not later than January 31, 1998 without qualification or condition.”34 The argument put
forth by DOE, and rejected by the court, was that Section 302(A) and Section 302(B) “must be
read together,” since taking title to SNF cannot be separated from disposing of SNF.35 In
construing DOE’s “disposal” obligation broadly, the court noted that “it is not unusual,
particularly in the nuclear area, to recognize a division between ownership of materials and other
obligations relating to such materials.”36 The court concluded that the NWPA and Standard
Contract had created a “reciprocal” and binding contractual relationship between DOE and the
nuclear utilities, whereby DOE would dispose of the utilities’ nuclear waste in return for the
payment of fees into the NWF.37
DOE did not immediately take action in response to the D.C. Circuit’s holding in Indiana
Michigan. Instead, the department informed the nuclear utilities involved that it would be unable
to comply with the January 31, 1998, deadline and was not prepared to begin accepting spent
nuclear fuel for disposal.38 DOE asserted that it was waiting for the results of the Yucca Mountain
Project Viability Assessment before proceeding, but predicted that the Yucca Mountain facility
could potentially be opened by 2010.39

Prohibiting the “Unavoidable Delay” Defense
In addition to informing the nuclear utilities that it would be unable to comply with the January
31, 1998, deadline, DOE also asserted that the department was not responsible for any monetary
damages incurred by the utilities as a result of DOE’s delay.40 The department had determined
that the lack of a permanent repository at Yucca Mountain constituted an “unavoidable delay”
under article IX of the Standard Contract.41 The “unavoidable delay” provision of the Standard
Contract provides:
31

Under the Chevron doctrine, a court will defer to an agency’s interpretation of an ambiguous statute where the
agency’s “answer is based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984).
32
Id. at 1274.
33
Id. at 1276.
34
Id.
35
Id. (“DOE next argues that subsections (A) and (B) of 302(a)(5) are not independent provisions, but rather must be
read together.”).
36
Id.
37
Id. at 1277 (“Thus we hold that section 302(a)(5)(B) creates an obligation in DOE, reciprocal to the utilities’
obligation to pay, to start disposing of the SNF no later than January 31, 1998.”).
38
See, Northern States Power Co. v. U.S., 128 F.3d 754, 757 (D.C. Cir. 1997).
39
Id.
40
Id.
41
10 C.F.R. §961.11.

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Neither the Government nor the purchaser shall be liable under this contract for damages
caused by failure to perform its obligations hereunder, if such failure arises out of the causes
beyond the control and without the fault or negligence of the party failing to perform.42

As such, argued DOE, the terms of the Standard Contract relieved the department from any
obligation to “provide a financial remedy for the delay.”43
The nuclear utilities responded to DOE’s communications in 1997 by asking the D.C. Circuit to
issue a writ of mandamus, compelling DOE to adhere to the court’s earlier decision in Indiana
Michigan and begin accepting nuclear waste for disposal. In Northern States Power Co. v. U.S.,
the court refused to grant the “drastic” and broad relief the utilities asked for, holding that the
terms of the Standard Contract provided for another “potentially adequate remedy.”44 Before the
court would consider compelling DOE to act, the utilities would first have to pursue the
administrative remedies available under the Standard Contract for delayed performance.45
However, the court was unwilling to accept DOE’s interpretation of its own delays as
“unavoidable” under the Standard Contract. The court reiterated, in rejecting DOE’s argument
that a lack of an operational repository qualified as an unavoidable delay, that DOE’s obligation
to begin disposal of SNF by January 31, 1998, existed regardless of the existence of an
operational storage facility.46 DOE’s “unavoidable delay” defense, noted the court, represented a
simple “recycling [of] the arguments [previously] rejected by this court.”47 Based on DOE’s
“repeated attempts to excuse its delay on the grounds that it lacks an operational repository,” the
D.C. Circuit, in a significant exercise of authority, issued a writ of mandamus prohibiting DOE
from concluding that the lack of an operational permanent repository constituted an “unavoidable
delay” under the Standard Contract.48 The court ordered DOE to “proceed with contractual
remedies in a manner consistent with NWPA’s command that it undertake an unconditional
obligation to begin disposal of the SNF by January 31, 1998.”49
In a preview of the jurisdictional dispute that would develop a decade later, DOE filed a petition
for rehearing in response to the Northern States mandamus. DOE challenged the D.C. Circuit’s
exercise of authority by asserting that the court “lacked jurisdiction to construe the unavoidable
delays clause of the Standard Contract,” as such an interpretation of a government contract was
squarely within the jurisdiction of the U.S. Court of Federal Claims under the Tucker Act.50 The
D.C. Circuit denied the motion for rehearing, holding that the court had not adjudicated a
42
Id. The provision continues: “In the event circumstances beyond the reasonable control of the Purchaser or DOE—
such as acts of God, or of the public enemy, acts of Government in either its sovereign or contractual capacity, fires,
floods, epidemics, quarantine restrictions … cause delay in scheduled delivery acceptance or transport of SNF … the
parties will readjust their schedules, as appropriate, to accommodate such delay.”
43
Northern States, 128 F.3d at 757.
44
Id. at 758,761. The remedy that was considered “potentially adequate” in Northern States was later deemed
“inadequate” in Maine Yankee Atomic Power Co. v. U.S., 225 F.3d 1336 (Fed. Cir. 2000).
45
The remedy available under the contract allows for an equitable adjustment of charges and schedules. 10 C.F.R.
961.11.
46
Northern States, 128 F.3d at 760.
47
Id.
48
Id.
49
Id.
50
Northern States Power Co. v. United States, 1998 U.S. App. LEXIS 12919 (D.C. Cir. May 5, 1998); Tucker Act, 28
U.S.C. §1491(a).

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contractual dispute, but rather issued the mandamus in an effort to enforce a statutory duty.51
Accepting the D.C. Circuit’s reasoning, DOE interpreted the Northern States mandamus as
prohibiting the department from raising the unavoidable delay clause as a defense in future
litigation.52

Litigation Continues: Remedies, Offsets, and Damages
After establishing DOE’s statutory obligations under the NWPA in the D.C. Circuit, many nuclear
utilities awaited the expiration of the January 31, 1998, deadline before seeking monetary
damages by filing their claims in the U.S. Court of Federal Claims (CFC).53 Under the Tucker
Act, the CFC has jurisdiction over monetary claims against the United States “founded either
upon the Constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States.”54 Decisions of the CFC are
appealed to the Federal Circuit.
In considering the cases, the CFC initially had to answer the threshold question of whether the
nuclear utilities were required to exhaust available administrative remedies under the Standard
Contract prior to seeking judicial relief. Generally, if administrative remedies can provide
adequate relief for a claim, the plaintiff must first exhaust those remedies before seeking redress
in another court.55 Judges on the CFC came to opposite conclusions as to whether the Standard
Contract could provide adequate relief to the nuclear utilities, and the issue was left for the
Federal Circuit to settle on appeal.56

Remedies Under Standard Contract Inadequate
In an important 2000 case, Maine Yankee Atomic Power Co. v. U.S., the Federal Circuit concluded
that adequate relief was not available to the nuclear utilities under the Standard Contract, a
conclusion that would allow breach of contract claims against DOE to go forward in the CFC.57
DOE, with the “unavoidable delay” clause unavailable, argued that the “avoidable delays” clause
of the contract provided the plaintiffs with an avenue for adequate administrative relief.58 The
“avoidable delay” provision of the Standard Contract requires that
51

Id. (“The Tucker Act does not prevent us from exercising jurisdiction over an action to enforce compliance with the
NWPA.”).
52
See, e.g., Yankee Atomic Electric Company v. U.S., 42 Fed. Cl. 223 (1998) (“As a result, DOE maintains that it is
prohibited from arguing that its failure to begin SNF disposal services is an unavoidable, non-compensable delay under
Article IX.A of the Standard Contract.”).
53
The D.C. Circuit, though retaining jurisdiction over review of final agency actions, rejected the notion that the U.S.
Courts of Appeals had jurisdiction over breach of contract claims under the NWPA, holding that the “Court of Federal
Claims, not this court, is the proper forum for adjudicating contract disputes.” Wisconsin Elec. Power v. U.S. Dep’t of
Energy, 211 F.3d 646, 647 (D.C. Cir. 2000).
54
28 U.S.C. §1491.
55
See, McKart v. U.S., 395 U.S. 185, 193 (1969) (“No one is entitled to judicial relief … until the prescribed
administrative remedy has been exhausted.”).
56
See, Yankee Atomic Elec. Co. v. U.S., 42 Fed. Cl. 223 (1998) (holding available administrative relief was not
adequate); Northern States Power Co. v. U.S., 224 F.3d 1361 (Fed. Cl. 2000) (holding available administrative relief
was adequate).
57
225 F.3d 1336 (Fed. Cir. 2000).
58
Id. at 1341-1342.

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In the event of any delay in the delivery, acceptance, or transport ... caused by circumstances
within the reasonable control of either [party] ... the charges and schedules specified by this
contract will be equitably adjusted to reflect any estimated additional costs incurred by the
party not responsible for or contributing to the delay.59

The court disagreed, holding that the “avoidable delay” provision applied only to routine delays
occurring after the parties had begun performance of their obligations under the contract, not to
breaches of a “critical and central obligation of the contract,” such as a failure to begin
performance by the statutory deadline.60 The court added that relief in the form of a “charge or
schedule adjustment,” as provided under the Standard Contract, was wholly inadequate to
compensate the nuclear utilities for damages they had sustained in storing spent nuclear fuel that
had been covered by the contract.61 As a result of the Maine Yankee decision, signatories to the
Standard Contract were now free to seek monetary damages against DOE, by filing their breach
of contract claims in the CFC, without first exhausting the DOE administrative process.

NWF Offset Invalid
Following the Indiana Michigan Power and Maine Yankee decisions, and the realization that a
large number of breach of contract claims were being filed in the CFC, DOE attempted to curtail
its potential contract liability by modifying contract terms with individual nuclear utilities. Under
the proposed modification, DOE was willing to return a portion of payments made by a utility
into the NWF, and suspend any future payments if the utility was willing to relinquish all future
claims against DOE.62 The department entered into one such agreement with Exelon Generation
Company in 2002. Other utilities that had also contributed to the NWF, however, challenged this
arrangement as an invalid use of NWF funds.
The U.S. Court of Appeals for the Eleventh Circuit, in Alabama Power Co. v. U.S., invalidated
the contractual modification reached between DOE and Exelon Generation Company.63 The
agreed upon “offset,” the court held, was “tantamount to an expenditure of funds” from the
NWF.64 Under the NWPA, NWF funds were to be used only for the “permanent disposal” of
nuclear waste.65 DOE could not, therefore, allocate NWF funds to individual nuclear utilities to
pay for what the court classified as on-site “interim storage.” Were DOE allowed to use NWF
funds to offset the costs of the department’s failure to dispose of SNF, it would be analogous to
allowing DOE to “pay for its own breach out of a fund paid for by the utilities.”66 Any
arrangement in which the utilities were made to “bear the costs of the [department’s] breach” was
invalid.67 Pursuant to the court’s stringent interpretation of the statutory purposes of the NWF,

59

Standard Contract, 10 C.F.R. §961.11.
Maine Yankee Atomic Power Co. v. U.S., 225 F.3d 1336, 1341-42 (Fed. Cir. 2000).
61
Id. at 1342.
62
See, Alabama Power Co. v. U.S., 307 F.3d 1300, 1306 (11th Cir. 2002).
63
Id. at 1315. The case was brought in the U.S. Court of Appeals for the Eleventh Circuit, rather than the CFC, because
the issue was a statutory question on the permissible use of NWF funds under the NWPA and not a breach of contract
claim.
64
Id. at 1312.
65
Id. at 1313 (“An expenditure on interim storage is not an act of ‘disposal.’”).
66
Id. at 1314.
67
Id.
60

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DOE is likely prohibited from using NWF funds for any use other than the development and
construction of a permanent repository.68

Calculating Damages
Although DOE had acknowledged by 2005 its partial breach of the Standard Contract in most
cases,69 significant litigation has been required to determine the level of damages individual
nuclear utilities may legally recover as a result of DOE’s breach. Generally speaking, when one
party to a contract materially breaches the contract, the non-breaching party has the option to sue
for damages under either a “full breach” or “partial breach” theory.70 A successful claim for full
breach discharges the contractual obligations of both parties and allows the non-breaching party
to sue for all past, present, and future damages.71 A claim for partial breach, on the other hand,
preserves the ongoing contractual relationship between the parties—meaning both parties are still
obligated to perform under the terms of the contract.72 Additionally, a party suing for partial
breach may only recover the costs of mitigating the other party’s breach that were incurred
between the time the party became aware of a potential breach and the date of trial.73 A party
suing for partial breach may not, therefore, recover future damages. Fundamentally, in electing to
pursue a claim under a partial or full breach theory, the non-breaching party is choosing between
continuing the contract, in the hope that the breaching party will eventually perform, or ending
the contract in its entirety.
The nuclear utilities have pursued their breach of contract claims under a partial breach theory.74
Although a party may typically elect whether to sue for partial or full breach in response to a
material breach, the CFC and the Federal Circuit have repeatedly and consistently expressed
doubt as to whether a full breach claim seeking to discharge the existing contractual obligations
would even be available to the nuclear utilities, noting that the utilities have been “compelled” to
sue for partial breach by the statutory obligations underlying the Standard Contract.75 In Indiana
Michigan Power Co. v. U.S., the court stated in dicta that were a nuclear utility to bring an action
for total breach “DOE would [be] discharged from further responsibility under the [Standard]
contract, a situation apparently not desired by [the utilities] and foreclosed by statute.”76 The
68

This prohibition would arguably include utilizing NWF funds as part of any alternative solution to a permanent
repository or any judicial order for restitution of NWF fees.
69
See, e.g., System Fuels Inc. v. U.S., 66 Fed. Cl. 722, 730 (2005) (“The government admitted on February 10, 2005
that ‘DOE’s delay in beginning acceptance of SNF … constitutes a partial breach of the Standard Contract.’”)
70
Restatement (Second) of Contracts §236 cmt. b (“If the injured party elects to or is required to await the balance of
the other party’s performance under the contract, his claim is said instead to be one for damages for partial breach.”);
Restatement (Second) of Contracts §243 cmt. a.
71
Restatement (Second) of Contracts §236.
72
Id. See also, E. Alan, Farnsworth, Contracts §8.15 (3d ed. 1999) (“Damages are calculated on the assumption that
both parties will continue to perform in spite of the breach.”).
73
Indiana Michigan Power Co. v. U.S., 422 F.3d 1369, 1374 (Fed. Cir. 2005) (holding that a partial breach plaintiff can
recover damages incurred from the point at which the “party has reason to know that performance by the other party
will not be forthcoming” to the date of trial.).
74
See, e.g. Pacific Gas & Elec. Co. v. U.S., 536 F.3d 1282 (Fed. Cir. 2008) (“A series of cases has established that
DOE has partially breached the contract by failing to begin its performance.”)
75
Indiana Michigan Power, 422 F.3d 1369, 1374 (Fed. Cir. 2005).
76
Id. (emphasis added); Niagara Mohawk Power Corp. v. U.S., 2011 U.S. Claims LEXIS 616 (Fed. Cl. 2011)
(“Plaintiffs are precluded from claiming total breach because the NWPA prevents plaintiffs from rescinding the
contract and disposing of their SNF other than through the DOE.”).

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courts have noted three incongruous consequences that could result from a court’s decision to
discharge the parties’ obligation to perform under the Standard Contract. First, Nuclear
Regulatory Commission operating permits for all nuclear utilities are currently contingent on
entering into the Standard Contract with DOE.77 As a result, if the contract is discharged, the
utility may lose its operating license. Second, the NWPA makes DOE the exclusive collector of
SNF, meaning the utilities may not seek alternative means of disposing of their SNF.78 Third, the
NWPA places a statutory duty on the utilities that generate SNF to pay for the waste’s disposal.
Discharging the utilities contractual obligation to make payments into the NWF would run
counter to this statutory duty.79 Accordingly, the Federal Circuit has repeatedly affirmed the
notion that nuclear utilities are foreclosed from suing for a full breach.80
Even if permitted, it is not clear that the nuclear utilities would wish to pursue a claim for full
breach. In 2006, in response to an order by the court to show why the CFC should not simply
void the Standard Contract, more than 30 nuclear utilities, through amicus briefs, voiced
opposition to the court’s proposal.81 Absent a contract, the utilities would be exposed to
“substantial regulatory risks,” and likely bear the burden and responsibility of permanently
disposing of their own SNF.82 Although available damages could potentially be higher than what
the utilities have been recovering through their numerous claims for partial breach, under a claim
for full breach, the utilities would lose the benefit, no matter how remote, of the government
collecting and disposing of their SNF.83
For these reasons, the nuclear utilities have sought to pursue, and courts have been hesitant to
depart from, a partial breach scenario.84 As a result, the nuclear utilities continue to have the
obligation to pay into the NWF and DOE continues to have the obligation to collect and dispose
of SNF. As the Federal Circuit has stated, the utilities have had “no choice but to hold the
government to the terms of the Standard Contract while suing for partial breach.”85
In August of 2008, the Federal Circuit further clarified the method for calculating damages in
NWPA breach of contract suits by establishing a rate at which DOE was expected to accept SNF
under the Standard Contract.86 The anticipated rate of acceptance was essential to calculating the
77

Id.
Id.
79
Roedler v. DOE, 255 F.3d 1347, 1353 (Fed. Cir. 2001).
80
Pacific Gas & Elec. Co. v. U.S., 70 Fed. Cl. 766, 774 (2006) (“[I]n the circumstances of this case, where the
regulatory framework of the NWPA … precludes plaintiff from suing for total breach of the contract …”); Yankee
Atomic Elec. Co. v. U.S., 536 F.3d 1268, 1280 (Fed. Cir. 2008) (“As this court has already acknowledged, the NWPA
and the terms of the Standard Contract foreclose any claim for total breach.”).
81
Brief for Florida Power and Light Co. et al. as Amici Curiae, Sacramento Mun. Util. Dist. v. U.S. 65 Fed. Cl. 180
(2005).
82
Id. at 11.
83
“[T]he amici do not seek to be restored to their pre-Standard Contract position. Rather, their consistent position
throughout the SNF litigation has been that they want—and need—DOE to perform its obligations under the Standard
Contract.” Id. at 9.
84
At least one CFC judge has expressed concern over the manner in which the litigation has been progressing.
Sacramento Mun. Util. Dist. v. U.S. 70 Fed. Cl. 332, 357 (2006) (“The prospect of continuing to issue rolling damage
awards ad infinitum for interim storage costs, however, falls far short of resolving the ‘national problem’ that Congress
identified in 1982 …”).
85
Indiana Michigan Power, 422 F.3d at 1374.
86
Pacific Gas & Elec. Co. v. U.S., 536 F.3d 1282 (Fed. Cir. 2008).
78

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total amount of SNF DOE was contractually obligated to accept from the nuclear utilities from
the 1998 deadline forward. DOE argued for a lower rate established under a report issued in 1991,
as opposed to the initial rate of acceptance established in a 1987 DOE scheduling report.87 The
Federal Circuit, however, rejected this argument, holding instead that damages would be
calculated in relation to the higher 1987 acceptance rate, as that rate most closely reflected the
intent and expectations of the parties at the time of the contract.88 The 1991 rate, held the court,
was most likely the result of a “litigation strategy,” put forth to “minimize DOE’s exposure for its
impending breach, rather than as a realistic, good faith projection for waste acceptance.”89
Nuclear utilities have thus been successful in recovering all reasonable and foreseeable expenses
incurred in mitigation of DOE’s breach.90 Generally, these damages consist of costs associated
with developing, implementing, and maintaining on-site interim SNF storage.91 Damages are
limited, however, to the costs incurred from the date at which the utility became aware of DOE’s
potential breach, a realization often occurring well before the January 31, 1998, deadline, to the
date of trial. As damages are limited to those expenses actually incurred at the time of trial,
utilities may not recover additional future, or prospective, damages.92 Nuclear utilities are free,
however, to re-file future claims as new damages are incurred.93

Jurisdictional Dispute Develops in Nebraska Public Power District
v. United States
From 1998 forward, the CFC had been entertaining breach of contract suits filed by the nuclear
utilities against DOE without any significant discussion of jurisdiction. Then, in 2005, the court,
for the first time, dismissed a NWPA breach of contract suit for lack of subject matter
jurisdiction.94 The court reasoned that the Standard Contract, created through the formal
administrative process, qualified as a final agency action under the jurisdiction of the U.S. courts
of appeals as established pursuant to Section 119 of the NWPA. Section 119 of the NWPA grants
the U.S. courts of appeals:
original and exclusive jurisdiction over any civil action ... for review of any final decision or
action of the Secretary, the President, or the Commission under this subtitle.95
87

The initial predicted rate of acceptance was 1200 metric tons of uranium (MTU) per year in 1998, 2000 MTU/year
by 2003, and 2650 MTU/year by 2004. The proposed 1991 rate of acceptance schedule reduced those numbers to 300
MTU/year in 1998, 875 MTU/year in 2001, and 1800 MTU/year by 2010. Id.
88
Id. at 1291-92.
89
Id.
90
As a general rule, to recover damages the utilities must show that “(1) the damages were reasonably foreseeable … at
the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with
reasonable certainty.” Indiana Michigan Power, 422 F.3d at 1373.
91
On-site interim storage commonly requires “re-racking” or the construction of “dry casks.” For further information
on interim storage see CRS Report R40202, Nuclear Waste Disposal: Alternatives to Yucca Mountain, by (name redacted).
92
See, e.g. Boston Edison Co. v. U.S., 658 F.3d 1361 (Fed. Cir. 2011) (“Prospective damages for anticipated future
nonperformance are not recoverable in a partial breach case.”).
93
Indiana Michigan Power, 422 F.3d at 1377 (“When a party sues for partial breach, it retains its rights to sue for
damages for its remaining rights to performance.”). New claims must be filed at least every six years in order to comply
with the statute of limitations.
94
Florida Power and Light Co. v. U.S., 64 Fed. Cl. 37 (2005).
95
P.L. 97-425 §119.

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The dismissal was appealed to the Federal Circuit for review of the jurisdictional question.
In PSEG Nuclear v. U.S., the Federal Circuit reversed the lower court’s decision, holding that the
NWPA had not stripped the CFC of jurisdiction over contract disputes.96 The court based its
holding on the fact that Section 119 only acted to preclude CFC jurisdiction in instances of
official agency action taken under the NWPA.97 The utilities’ claims were for breach of contract
and did not challenge any “agency action taken under the agency’s statutory mandate,” but rather
were concerned with “whether DOE breached its contractual obligations, and if so, to what
damages, if any, PSEG is entitled for the breach.”98 After PSEG, it was clear that the CFC had the
authority to exercise jurisdiction over an NWPA-related breach of contract claim. However,
because the court in PSEG limited itself only to whether the exercise of jurisdiction by the CFC
was proper,99 the larger question of whether the D.C. Circuit’s previous exercise of jurisdiction
over similar contract-related claims impermissibly infringed on the CFC’s jurisdiction remained
unresolved.

The Court of Federal Claims
Shortly after the PSEG decision, which ensured the CFC’s jurisdiction over contract disputes
arising under the NWPA, DOE asked the CFC to invalidate the D.C. Circuit’s initial exercise of
jurisdiction in Indiana Michigan. At oral argument in Nebraska Public Power Dist. v. U.S., DOE
expressed a desire to raise the “unavoidable delay” defense that the D.C. Circuit had specifically
prohibited through the writ of mandamus in Northern States.100 The CFC decided to entertain the
question and asked the parties to brief the issue of whether the D.C. Circuit mandamus precluded
DOE’s assertion of the “unavoidable delay” defense in the CFC. On October 31, 2006, the court
handed down a sweeping decision that voided for lack of jurisdiction the longstanding mandamus
issued by the D.C. Circuit.101
In Nebraska Public Power, the CFC held that the D.C. Circuit had exceeded its jurisdiction in
issuing the Indiana Michigan decision.102 Since the mandamus prohibiting DOE’s use of the
“unavoidable delay” defense issued in Northern States was issued as a means of enforcing the
ruling in Indiana Michigan, the mandamus, therefore, was also void and had no preclusive effects
in the CFC. The court based its decision on the jurisdictional conclusions underlying PSEG, the
limited scope of Section 119 of the NWPA, and the absence of an effective waiver of sovereign
immunity.

96

465 F.3d 1343 (Fed. Cir. 2006).
Id. at 1349-1351.
98
Id. at 1350.
99
Id. (“The difference in the parties’ positions amounts to whether the courts of appeals continue to have jurisdiction to
decide the propriety of agency actions … because this issue need not be resolved in this appeal, we merely agree …
that the NWPA does not strip the court of its Tucker Act jurisdiction.”).
100
73 Fed. Cl. 650 (2006).
101
Id.
102
Id.
97

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Defining the Jurisdiction of the CFC and U.S. Appellate Courts
Nebraska Public Power focused on whether the string of claims filed under the NWPA and the
Standard Contract should be classified as a review of formal agency action within the direct
purview of the U.S. courts of appeals, or as a straightforward breach of contract claim within the
exclusive jurisdiction of the CFC (subject to appeal to the Federal Circuit). The opinion made
clear the CFC’s position that the claims relating to the January 31, 1998, statutory deadline
qualified as contract claims within the CFC’s exclusive jurisdiction.103 In considering the
jurisdictional role of the two courts, the CFC adopted and applied much of the reasoning behind
PSEG, asserting that the case had “rejected many of the key jurisdictional concepts that underlie
the relevant D.C. Circuit cases.”104 Although PSEG focused only on whether the CFC could
exercise jurisdiction over the contract claims, the CFC in Nebraska Public Power went further to
establish that jurisdiction as exclusive in an attempt to resolve the two competing claims to
jurisdiction over cases related to the Standard Contract.105

The Scope of Section 119 of the NWPA
In issuing the Northern States mandamus, the D.C. Circuit had invoked Section 119, which
granted the U.S. courts of appeals exclusive jurisdiction over final agency action under Title I of
the NWPA, as the basis for its exercise of jurisdiction. However, the Federal Circuit, reviewing
the exercise of jurisdiction by the CFC, had limited the scope of Section 119, based on the
provision’s plain language, to only those claims relating to the establishment of a permanent
repository for spent nuclear fuel.106 In Nebraska Public Power, the CFC adopted the reasoning in
PSEG, and applied it to the D.C. Circuit’s initial exercise of jurisdiction in Indiana Michigan. The
resulting conclusion was that Indiana Michigan involved “interpretations of contract provisions
that have nothing to do with the creation of repositories of spent nuclear fuel,” and therefore
“plainly exceeded” the grant of jurisdiction to the D.C. Circuit under Section 119.107
Contrary to the D.C. Circuit’s argument that the Northern States mandamus was issued pursuant
to a breach of a statutory and regulatory obligation, the court added that the “essential character”
of the actions brought by the nuclear utilities was contractual and therefore exclusively within the
jurisdiction of the CFC.108 The mere fact that DOE developed the Standard Contract through
formal administrative rulemaking procedures was not sufficient to alter the nature of the claim
from an action based on contract to an action based on statutory or regulatory interpretation.109 In
classifying the claims in Indiana Michigan and Northern States as contractual, the court
emphasized the utilities’ reliance on the Standard Contract, the asserted claim for breach of
103
Id. at 664 (“in describing where the [Federal Circuit’s] jurisdiction begins, the federal circuit sub silentio described
where the D.C. Circuit’s jurisdiction ends, to wit, that the latter court’s jurisdiction does not extend beyond reviewing
agency actions under Title III that relate to the creation of the repository.”).
104
Id. at 662.
105
Id. at 664-665 (“The decisions in Indiana Michigan and Northern States bounded across the [jurisdictional] line,
thereby intruding on this court’s jurisdiction.”).
106
Id. at 664-666.
107
Id. at 664.
108
Id. at 665.
109
Id. at 662-663 (“The fact that DOE chose to use ‘administrative rulemaking’ in developing the Standard Contract
and in putting forth its interpretations thereof did not confer jurisdiction on the D.C. Circuit to resolve what are, in
effect, contract claims.”).

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contract, and the request for monetary damages.110 As the “mandamus dispute in Northern States
could be conceived as entirely contained within the terms of the contract” rather than a
“regulation asserted to be in conflict with the NWPA,” the D.C. Circuit had engaged in an
interpretation of the Standard Contract that intruded on the CFC’s exclusive jurisdiction.111

Waiver of Sovereign Immunity Under Section 702 of the APA
The CFC also held that the D.C. Circuit’s decisions in Indiana Michigan and Northern States
were not supported by a waiver of sovereign immunity.112 Even if Section 119 had granted the
D.C. Circuit jurisdiction over the NWPA contract claims, the grant of jurisdiction was not
accompanied by any waiver of sovereign immunity that would allow the case to go forward.
Federal courts do not infer waivers of sovereign immunity lightly, requiring that any such waiver
be “unequivocally expressed” by Congress.113 The mere grant of jurisdiction to a court, such as
the grant found in Section 119, is not sufficient to constitute a waiver of sovereign immunity.114
The required express waiver is generally characterized by a “specification of the remedy or relief
that may be awarded against the U.S.”115 The court could find no express waiver anywhere in the
NWPA.
With no express waiver in the NWPA, the D.C. Circuit had proceeded in Indiana Michigan as if
the waiver derived from Section 702 of the Administrative Procedure Act (APA). Section 702 acts
as a general waiver of sovereign immunity for claims against the U.S. that are based on agency
action.116 The CFC determined that any reliance on Section 702 was misplaced, as the APA
general waiver applies only where there is “no other adequate remedy in a court.”117 Although the
D.C. Circuit had taken the position that the CFC was unable to accord adequate relief to a
plaintiff seeking equitable relief,118 the Federal Circuit concluded that the Section 702 waiver was
inapplicable under these circumstances because the nuclear utilities had an adequate remedy in
the CFC under the Tucker Act.119 The Federal Circuit, citing the U.S. Supreme Court, rejected the
notion that the limitation on the available remedies made relief in the CFC “inadequate.”120 Any
other conclusion, reasoned the court, would allow plaintiffs to circumvent the jurisdiction of the
CFC simply by attaching a prayer for equitable relief to what was essentially a damages suit.
110

Id. at 665.
Id. at 666.
112
Under the doctrine of sovereign immunity, “the United States is immune from suit save to the extent it consents to
be sued.” Murray v. Hoboken Land & Improvement Co., 59 U.S. 272, 283-84 (1855).
113
Nebraska Power, 73 Fed. Cl. at 666.
114
Id.
115
Id.
116
5 U.S.C. §702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review thereof … The United States may
be named as a defendant in any such action, and a judgment or decree may be entered against the United States.”).
117
Nebraska Power, 73 Fed. Cl. at 666 (citing 5 U.S.C. §704).
118
Courts have construed the Tucker Act as waiving sovereign immunity only for claims for damages. The CFC,
therefore, cannot grant a plaintiff equitable relief in these circumstances. See, e.g., Richardson v. Morris, 409 U.S. 46465 (1973). Equitable relief includes non-monetary remedies such as a writ of mandamus.
119
Nebraska Power, at 672 (“[A]n adequate remedy was and is available in this court.”).
120
Id. at 669. The Federal Circuit has held that the U.S. Supreme Court did “not enunciate a broad rule that the Court of
Federal Claims cannot supply an adequate remedy in any case seeking injunctive relief.” Consol. Edison Co. of N.Y. v.
U.S., 247 F.3d 1378, 1383 (Fed. Cir. 2001).
111

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With an alternate and adequate remedy available in the CFC, the necessary trigger for Section
702 had not been met. The court held, therefore, that absent a waiver of sovereign immunity
under either Section 119 of the NWPA or Section 702 of the APA, the D.C. Circuit had
improperly granted relief against the United States in Indiana Michigan.121
The court concluded that since the D.C. Circuit in Indiana Michigan had exceeded its jurisdiction
without the support of a valid waiver of sovereign immunity, its decision was therefore void.122
The mandamus issued in Northern States, which was predicated on the decision in Indiana
Michigan, was, therefore, also void and could not preclude DOE from raising the unavoidable
delay defense.123 The court closed by ordering the parties to brief the issue of whether DOE’s
failure to commence disposal of SNF by the established deadline was excused by the
“unavoidable delay” clause of the Standard Contract.124

The Federal Circuit
Nebraska Power appealed the CFC’s decision to the Federal Circuit and the case was argued in
December 2007. It was not until June 4, 2009, that the Federal Circuit answered, not with an
opinion, but with an order for en banc rehearing before the entire Federal Circuit.125 The order for
en banc hearing included a request that the parties file supplemental briefs addressing whether the
mandamus issued by the D.C. Circuit in Northern States precludes DOE from pleading the
“unavoidable delay” defense to breach of contract claims currently pending before the CFC.126 “If
so,” asked the court, “does the order exceed the jurisdiction of the District of Columbia
Circuit?”127
On January 17, 2010, the Federal Circuit issued an 11-1 decision upholding the D.C. Circuit’s
exercise of jurisdiction in Indiana Michigan and Northern States, thereby affirming the D.C.
Circuit mandamus prohibiting DOE’s use of the “unavoidable delay” defense.128 The Nebraska
Public Power decision rejected all of the CFC’s major jurisdictional determinations. The court
held that (1) Section 119 of the NWPA had properly granted the D.C. Circuit jurisdiction over
statutory claims arising under the act; (2) sovereign immunity was validly waived under the APA;
and (3) the D.C. Circuit had not “improperly intruded” on the CFC’s exclusive jurisdiction over
contract interpretation.129

Jurisdiction Under Section 119
On appeal, the Federal Circuit interpreted the scope of Section 119 of the NWPA more broadly
than had the CFC. Whereas the CFC determined that the provision only granted the federal
121

Id. at 672-73.
Id. at 673 (“[T]he court is left with the firm conviction that, in issuing the subject mandamus, the D.C. Circuit
operated in excess of its jurisdiction and, specifically, without an appropriate waiver of sovereign immunity.”).
123
Id.
124
Id. at 674.
125
Nebraska Public Power Dist. v. U.S., 2009 U.S. App. LEXIS 12668 (Fed. Cir 2009).
126
Id.
127
Id.
128
Nebraska Public Power Dist. v. U.S., 2010 U.S. App. LEXIS 643 (Fed. Cir 2010).
129
Id. at 18-19.
122

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appellate courts review of claims arising from Title I of the act—the title pertaining to the siting
of a permanent repository—the Federal Circuit held that Section 119 also granted federal
appellate courts jurisdiction over claims arising from the statutory deadline found in Title III.130
The court looked to the legislative history of the NWPA to support its conclusion, noting that it
was clear that the statutory deadline’s “physical separation from the judicial review provision in
section 119 [was] pure happenstance and in no way indicate[d] a congressional intent that review
under the different subchapters be governed by different standards.”131 Accordingly, claims
relating to DOE’s failure to begin the acceptance of SNF by the statutory deadline of January 31,
1998, were included within the D.C. Circuit’s jurisdiction under Section 119 of the NWPA.

Waiver of Sovereign Immunity Under the APA
The Federal Circuit further held that the APA did indeed constitute a valid waiver of sovereign
immunity for claims arising from the statutory deadline of the NWPA.132 In disagreeing with the
CFC’s interpretation of Section 704 of the APA, the court noted that the provision created two
distinct categories of agency action that were subject to judicial review. The APA waived
sovereign immunity and granted judicial review only to “agency action made reviewable by
statute” and “final agency action for which there is no other adequate remedy in a court.”133 The
court referred to the first category of action as “special statutory review,” or agency action made
reviewable by a “specific review-authorizing statute.”134 The court referred to the second category
of action as “nonstatutory review.”135 There the APA acts as a waiver of sovereign immunity for a
limited class of cases where no review of agency action has been granted by statute, but where
absent review, the plaintiff can find “no other adequate remedy at law.” The court, distinguishing
between the two categories, reasoned that the limitation that there be “no other adequate remedy”
applied only to nonstatutory review of agency action.136 The court concluded that because Section
119 of the NWPA made DOE action specifically reviewable by the federal appellate courts, the
fact that another adequate remedy may have been available in the CFC did not make the waiver
of sovereign immunity invalid.137

CFC Exclusive Jurisdiction over Contract Interpretation
Finally, the Federal Circuit held that the D.C. Circuit’s mandamus in Northern States did not
encroach upon the CFC’s exclusive jurisdiction over the adjudication and interpretation of
contract rights. The court characterized the D.C. Circuit’s action as an implementation of DOE’s
statutory duties under the NWPA rather than an interpretation of the language of the Standard
130

Id. at 20-31. The court added, that even were the scope of §119 ambiguous, “[w]here there is a question whether
judicial review was meant to be in district courts or courts of appeals, that ambiguity is resolved in favor of court of
appeals review.” Id. at 24.
131
Id. at 22 (citing General Electric Uranium Mgmt. Corp. v. U.S., 764 F.2d 896, 903 (D.C. Cir. 1985)).
132
Id. at 31-41.
133
5 U.S.C. §704.
134
Nebraska Public Power, 2010 U.S. App. Lexis at 33 (“the most natural reading of [§704] is that it relates to two
categories of agency action.”).
135
Id.
136
Id. (“[T]he ‘adequate remedy at law’ proviso applies only to nonstatutory review and not to special statutory review,
such as the review at issue in this case.”).
137
Id.

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Contract.138 By prohibiting DOE’s use of the “unavoidable delay” defense, the D.C. Circuit was
utilizing the mandamus as a means to enforce DOE’s statutory obligations as established in
Indiana Michigan. The Federal Circuit concurred with the D.C. Circuit’s view that it had “merely
prohibited DOE from implementing an interpretation that would place it in violation of its duty
under the NWPA to assume an unconditional obligation to begin disposal by January 31, 1998.
The statutory duty ... is independent of any rights under the contract.”139 In short, the Federal
Circuit concluded that in issuing its mandamus, the D.C. Circuit had been interpreting the NWPA
and not the Standard Contract.
In overturning the CFC’s decision, the Federal Circuit all but extinguished DOE’s attempt to
escape liability through the “unavoidable delay” clause of the Standard Contract.140 In applying
the Federal Circuit’s decision, the CFC has generally abided by the Northern States mandamus
and barred the government from asserting the “unavoidable delay” clause as an affirmative
defense to liability.141 As a result, litigation under the Standard Contract will continue, as it had
prior to the CFC’s decision in Nebraska Public Power, with a focus on measuring recoverable
damages rather than establishing liability

Confusion as to the Scope of the Northern States Mandamus
The Federal Circuit recently attempted to clarify—while arguably narrowing—the scope of the
Northern States mandamus in Southern Nuclear Operating Co. v. U.S.142 In doing so, however,
the court has triggered confusion and contradictory opinions in the CFC. The Federal Circuit held
in Southern Nuclear that while the government continues to be prohibited from concluding that
the lack of a repository represents an affirmative defense to liability under the Standard Contract,
the mandamus does not preclude the government from raising the unavoidable delay clause
before the CFC in the damages context.143 In reaching this conclusion, the court noted that the
Nebraska Public Power case “did not suggest that the District of Columbia Circuit’s decision in
any way foreclosed arguing in favor of the [unavoidable delay] defense in the Claims Court.
Indeed, we considered the government’s argument and held that … [the mandamus] was entitled
to res judicata effect on the issue of liability but that it did not ‘direct the implementation of any
remedy.’”144
The Southern Nuclear decision appears to hold that the Northern States mandamus acts only to
prevent the government from interpreting the Standard Contract and the unavoidable delay clause
in a manner contrary to the agency’s clear and unconditional statutory duty to collect nuclear
138

Id. at 53 (“The mandamus order was issued pursuant to the D.C. Circuit’s authority to construe the NWPA and to
direct DOE to comply with its obligations under the statute. The order did not address any issue of contract breach.”).
139
Id. at 43.
140
Although subject to appeal, the federal government did not petition the Supreme Court for review of the Federal
Circuit’s decision.
141
See, e.g., Entergy Nuclear Fitzpatrick v. U.S., 93 Fed Cl. 739 (2010) (granting a motion to strike the “unavoidable
delays” defense); Portland General Elec. v. U.S., 100 Fed. Cl. 46 (2011)( granting a motion to strike the “unavoidable
delays” defense).
142
637 F.3d 1297 (Fed. Cir 2011).
143
Id. at 1306 (“The court’s concern was that the agency itself would ‘implement [an interpretation of the Standard
Contract that excuse[d] its failure to perform,’ not that the agency might make arguments in the Claims Court.” (citing
Northern States, 128 F.3d at 760)).
144
Id.

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waste as established by the D.C. Circuit. The mandamus does not, however, necessarily prevent
the government from raising the unavoidable delay clause as a defense to the imposition of
damages or a demand for a specific remedy.145 This line of reasoning—which attempts to draw a
distinction between liability and damages—was drawn from the concurrence in the Federal
Circuit’s Nebraska Public Power opinion in which the concurring judge stated: “Although I read
the majority as establishing government liability, it remains open for the government to argue that
the Unavoidable Delays clause bars a damage award (as opposed to some other contractual
remedy such as restitution).”146 While holding that the government could argue unavoidable delay
in defense to damages, Southern Nuclear did not establish whether such a defense had merit. The
effect of the ruling has been to reopen the debate over unavoidable delays.
Application of the Federal Circuit’s Southern Nuclear opinion has not been uniform in the CFC.
Indeed, various judges have reached contradictory opinions on the government’s use of the
unavoidable delay clause in defense to damages, and one judge rejected the Southern Nuclear
opinion as inconsistent with the Federal Circuit’s decision in Nebraska Public Power. In
Rochester Gas and Elec. Corp. v. U.S., for example, the CFC adopted the Southern Nuclear
reasoning and held that although the government is “precluded from asserting the unavoidable
delays clause as a defense to liability for breach of the standard contract,” the government “may,
however, assert the unavoidable delays clause in opposition to a demand for damages.”147
Although permitting the argument to be raised, the court did not reach the merits of the defense.
In the subsequent case of Portland General Elec. Co. v. U.S., the CFC appeared to impliedly
accept the proposition set forth in Southern Nuclear that the government was not prohibited from
raising the unavoidable delay argument in defense to damages, but the opinion ultimately
determined that such an argument was without merit as the clause had no “independent
application” to the “determination of damages.”148
To the contrary, in Entergy Nuclear Fitzpatrick v. U.S., Judge Edward Damich rejected the
Southern Nuclear decision—determining that the Federal Circuit’s decisions in Southern Nuclear
and Nebraska Public Power were contradictory.149 Whereas Nebraska Public Power had
foreclosed the use of the unavoidable delay clause “not merely as a defense to liability but as a
defense to damages for failing to meet its unconditional obligation,” Southern Nuclear had
“implicitly held that the government could have raised the unavoidable delays defense.”150
Accordingly, the two decisions could be reconciled only if Southern Nuclear was read “extremely
narrowly.”151 The court then concluded that Southern Nuclear could not be read in such a manner,
and thus found the “two decisions to be at odds.”152 Although noting its “unenviable position,” the
court determined Nebraska Public Power to be the “controlling precedent of the Federal Circuit”
and held that the Northern States mandamus barred the use of the unavoidable delay clause as a
defense to damages.153 Recognizing the significance of the CFC’s inability to reconcile Nebraska
145

Id.
Nebraska Public Power, 590 F.3d at 1377.
147
99 Fed. Cl. 369, 372 (2011).
148
100 Fed. Cl. 46, 51 (2011)(noting that “[t]he ruling of the Federal Circuit in Southern Nuclear is not to the
contrary.”).
149
2011 U.S. Claims LEXIS 2131 (Fed. Cl. 2011).
150
Id. at 14, 26.
151
Id. at 28.
152
Id.
153
Id. at 31.
146

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Public Power and Southern Nuclear, Judge Damich certified the question for direct appeal to the
Federal Circuit.154
Were the Federal Circuit to affirm the Southern Nuclear court’s interpretation of the scope of the
Northern States mandamus, it appears the government would be permitted to raise the
unavoidable delay clause as a defense to certain damages. However, whether such a defense
would be successful in actually deflecting damages remains unclear. The only court to actually
consider the merits of the unavoidable delay clause as a defense to damages, rather than merely
whether such a defense was barred by the Northern States mandamus and Nebraska Public
Power, found the argument to be unsatisfactory.155

Future Contract Liability
The total costs to taxpayers for delays associated with performing on the Standard Contract are
difficult to project, especially given the uncertainty regarding the future of the Yucca Mountain
facility or any alternative permanent repository for SNF. However, absent a significant change in
the direction of NWPA-related litigation, DOE predicts that damages stemming from partial
breach of contract claims will measure close to $20.8 billion if the government is able to begin
accepting SNF by 2020—an unlikely occurrence given the Administration’s decision to terminate
the Yucca Mountain project.156 Approximately $500 million in additional legal damages will
continue to build with each year beyond 2020 that DOE is unable to begin accepting SNF.157 It is
important to note that all paid legal damages are drawn from the DOJ Judgment Fund rather than
the DOE budget. In addition, the Department of Justice, which has litigated the contract cases on
behalf of DOE, has spent over $192 million on litigation-related expenses.158 The nuclear utilities
reportedly incur $5 million to $7 million in litigation costs in each individual case.159
In an attempt to curtail damages, DOE and DOJ have sought to reach settlement agreements with
a number of individual nuclear utilities. As of December 2011, agreements have been entered into
with nuclear utilities that operate 65 of the 118 nuclear facilities covered by the Standard
Contract.160 Under the settlements, contract parties submit annual reimbursement claims to DOE
for any delay-related nuclear waste storage costs that they incurred during that year. As the
154

Id. at 33-4.
See, Portland General Elec. Co. v. U.S., 100 Fed. Cl. 46 (2011).
156
Final Report to the Secretary of Energy, Blue Ribbon Commission on America’s Nuclear Future, at 79 (January 26,
2012) available at http://brc.gov/sites/default/files/documents/brc_finalreport_jan2012.pdf. See also, CBO Testimony,
at 7; Department of Energy, Agency Financial Report, FY2010, available at http://www.energy.gov/media/
2010parAFR.pdf. This is not to say that the Yucca Mountain facility would have been completed by 2020 had the
administration not sought to terminate the program. In 2008, DOE took the position that the facility could potentially be
ready by 2020 if adequate funding was provided, which it was not, and if the Nuclear Regulatory Commission had
granted the Construction Authorization “in the next three to four years.” Statement of Edward Sproat, Director, Office
of Civilian Radioactive Waste Management, Before the Subcommittee on Energy and Air Quality of the House
Committee on Energy and Commerce, July 15, 2008.
157
CBO Testimony, at 7.
158
See, Statement of Michael F. Hertz, Deputy Assistant Attorney General, Civil Division, Department of Justice,
Before the House Committee on the Budget, July 27, 2010.
159
CBO Testimony, at 7. With at least 72 lawsuits filed against DOE, one could estimate that the nuclear utilities as a
whole have expended over $400 million in litigation costs.
160
See, CRS Report RL33461, Civilian Nuclear Waste Disposal, by (name redacted).
155

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settlement agreements cover continuing damages, the affected nuclear utilities are able to submit
annual claims directly to DOE rather than re-litigating ongoing damages in the federal courts. As
of July 27, 2010, DOE had paid approximately $725 million pursuant to these settlements.161
The Department of Justice has also entered into broader discussions with the nuclear industry “to
explore the possibility of reaching a standard settlement with a larger segment of the utilities
whose claims are currently pending.”162 As most of the contentious legal questions involved with
the Standard Contract have been resolved over the last decade, “the ultimate success of many
types of claims is now more predictable to both the government and the utilities.”163 Rather than
continue to re-litigate substantially similar claims, DOJ has suggested that establishing an
administrative claims process would likely lead to a less expensive and more efficient resolution
of the ongoing nuclear waste litigation. An administrative claims process would presumably
decrease litigation related expenses for both DOJ and the nuclear utilities by allowing qualified
plaintiffs to submit claims to an administrative tribunal for approval, rather than force the parties
to litigate damages in federal court. The Blue Ribbon Commission on America’s Nuclear Future
recommended that the government continue to conclude these lawsuits both fairly and quickly
“through settlement agreements or through another process, such as mediation or arbitration.”164
Although problems related to the storage of SNF remain unresolved, the Obama Administration
has pronounced a commitment to invest in domestic nuclear power. In his 2010 State of the
Union address, the President advocated for creating new “clean energy jobs” by “building a new
generation of safe, clean nuclear power plants in this country.”165 In a step toward implementing
that vision, President Obama announced on February 16, 2010, the government approval of an
$8.3 billion conditional loan guarantee to help finance the construction of two new nuclear
reactors in the state of Georgia.166 The proposed reactors would be the first to begin construction
in the United States in more than 30 years. Reaffirming his commitment to nuclear power in his
2011 State of the Union address, President Obama called for nuclear power to be included in a
national goal of generating 80% of U.S. electricity from “clean energy sources” by 2035.167 In
preparation for any new reactors, DOE has developed a new contract to govern waste disposal.
Under the new provisions, DOE “would not be required to complete disposal of [SNF] until 20
years after the expiration of the [new reactor’s] operating license and any extension thereto.”168
DOE predicts that any a contractual obligation to collect SNF under the new contracts would not
“come into effect until the end of this century.”169
161

Id.
Statement of Michael F. Hertz, Deputy Assistant Attorney General, Civil Division, Department of Justice, Before
the House Committee on the Budget, July 27, 2010 at 6.
163
Id.
164
Final Report to the Secretary of Energy, Blue Ribbon Commission on America’s Nuclear Future, at 80 (January 26,
2012).
165
Remarks by the President in State of the Union Address, January 27, 2010. Available at http://www.whitehouse.gov.
The President again advocated for the continued development of nuclear power in his 2011 State of the Union address.
Remarks by the President in State of the Union Address, January 25, 2011 (“By 2035, 80 percent of America’s
electricity will from clean energy sources. Some folks want wind and solar. Others want nuclear, clean coal and natural
gas. To meet this goal, we will need them all…”).
166
Matthew Wald, In bid to Revive Nuclear Power, U.S. Is Backing New Reactors, N.Y. Times, February 17, 2010.
167
The President made no specific reference to nuclear power in his 2012 State of the Union address.
168
Statement of Dr. Kristina M. Johnson, Under Secretary of Energy, Department of Energy, Before the House
Committee on the Budget, July 27, 2010 at 2.
169
Id.
162

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Defense Waste
In addition to the projected $20.8 billion in damages as a result of delays in collecting and
disposing of commercial nuclear waste, the federal government also faces the prospect of
additional liabilities170 stemming from delays in collecting and disposing of defense-related
nuclear waste. The Yucca Mountain facility was envisioned not only as the permanent home for
SNF produced by commercial nuclear power plants, but also high-level waste produced as a
result of weapons development activities and SNF produced as a result of the operation of nuclear
powered submarines.171 The majority of the nation’s defense waste, including high level liquid
waste produced by the original Manhattan Project, is currently stored at federal facilities located
in the states of Washington, South Carolina, and Idaho. These states have entered into regulatory
agreements with DOE detailing requirements for the eventual removal of this defense waste.172
The Idaho Settlement Agreement, for example, mandates a transition to dry storage by 2023 and a
waste removal deadline of 2035.173 Under the current terms of the court-ordered agreement, if
DOE fails to comply with the 2035 deadline, the state may impose penalties of up to $60,000 a
day.174 Accordingly, the federal government faces the prospect of significant future financial
penalties, in addition to the estimated $16.2 billion in damages the government will incur as a
result of the Standard Contract litigation.

Conclusion
Litigation related to the NWPA will undoubtedly continue. Whether defending breach of contract
claims brought pursuant to the Standard Contract, or actions seeking equitable relief pursuant to
the NWPA, the federal government will continue to encounter substantial legal costs in
connection with its delay in disposing of the nation’s SNF. In response to the impending
litigation, the Department of Justice (DOJ) requested $11.4 million in its FY2011 budget
specifically for the purpose of defending against NWPA related suits.175 DOJ is seeking to add 10
new attorneys to its Civil Division in preparation for an anticipated 12 trials before the end of
2012.176 As the government makes preparations for future legal disputes, both litigation expenses

170

It should be noted that liabilities associated with the collection and storage of defense waste do not arise as a result
of a breach of the Standard Contract. The tri-party regulatory agreements at issue create separate obligations.
171
NWPA §8 (“[T]he President shall evaluate the use of disposal capacity at one or more repositories to be
developed…for the disposal of high-level radioactive waste resulting from atomic energy defense activities.”) President
Reagan determined in 1985 that the repository would be used for both civilian and defense waste. Memorandum from
President Ronald Reagan to John S. Harrington, Secretary of Energy (April 30, 1985).
172
For example, the tri-party agreement with Washington State, known as the Hanford Federal Facility Agreement and
Consent Order was entered into by DOE, EPA, and the Washington Department of Ecology. Available at
http://www.hanford.gov/?page=81.
173
The Idaho Agreement and Consent Order was entered into by DOE, the State of Idaho and the U.S. Navy. The Idaho
National Laboratory is home to waste generated by the Naval Nuclear Propulsion Program. Settlement Agreement
available at https://idahocleanupproject.com/Portals/0/documents/1995SettlementAgreement.pdf
174
Id.
175
Department of Justice FY2011 Budget Request for General Legal Activities, Civil Division. Available at
http://www.justice.gov.
176
Id. See also, Statement of Michael F. Hertz, Deputy Assistant Attorney General, Department of Justice, Before the
Blue Ribbon Commission on America’s Nuclear Future, February 2, 2011.

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and damages awards will continue to build as there seems to be no prospect for a completed
facility capable of storing SNF anywhere on the horizon.177

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

177

For a summary of proposed legislation relating to the nuclear waste disposal see CRS Report RL33461, Civilian
Nuclear Waste Disposal, by (name redacted).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR40996. Public record. Not legal advice.