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January 13, 2010
Testimony of Brattle Expert Frank Graves Supports $38 Million Award to Nuclear Power Plant Owner in Dispute with U.S. Department of Energy

Frank Graves, a principal in Brattle’s Cambridge, MA office, provided key testimony in an ongoing legal battle between nuclear power plant owners and the U.S. Department of Energy (DOE) over contract damages associated with unfulfilled government obligations to accept spent nuclear fuel. Nuclear power generates approximately 20% of the nation's electricity, and it also creates highly radioactive spent fuel that requires careful long-term sequestration and storage. The DOE, through contracts from the early 1980s with each of the more than 60 commercial nuclear power plant owners, was obligated to develop a permanent repository and begin accepting spent nuclear fuel by January 31, 1998. To date the DOE has not begun acceptance of spent fuel, causing nuclear power plant owners to collectively incur hundreds of millions of dollars in at-reactor spent fuel storage costs that would have been avoided if the government had accepted spent fuel in a timely fashion. Many of these owners have sued the DOE to recover these spent fuel storage costs. The nuclear plants’ contracts with the government did not specify the schedule of spent fuel acceptance from each reactor. Mr. Graves and a Brattle team conducted an economic analysis of the industry’s spent nuclear fuel removal needs over time to determine how the Contract should and would have been efficiently implemented by the DOE. Mr. Graves testified about the implications for Dairyland Power Cooperative, the owner of the LaCrosse Boiling Water Reactor, a small shutdown nuclear reactor in Wisconsin. In his testimony, Mr. Graves showed that given its relatively small amount of spent fuel and its shutdown status, Dairyland Power Cooperative could and would have arranged to have all of its spent fuel removed in 1998, avoiding years of unnecessary ongoing storage costs to maintain and monitor the spent fuel. Mr. Graves’ framework and testimony was largely adopted by the Court, and Dairyland Power Cooperative was awarded $37.7 million in damages. Legal counsel for Dairyland was provided by a team led by Robert Shapiro from the Washington, DC office of Greenberg Traurig, LLP.