Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED AND SUPPLEMENTAL COMPLAINT Pursuant to Rules 15(a) and (d) of the Rules of the Court of Federal Claims ("RCFC"), plaintiff Wisconsin Electric Power Company ("WE") moves for leave to file a Second Amended and Supplemental Complaint (Attachment A to this motion) in order to update its claim to include the damages that WE incurred in 2006 and in early 2007 and to update its weighted average cost of capital ("WACC") claim to reflect the new September 2007 trial date. The costs at issue are the same type of costs that WE has previously claimed in this litigation including cask acquisition costs, cask loading costs, spent fuel storagerelated Nuclear Regulatory Commission ("NRC") fees, and costs to attempt to license WE's existing VSC-24 casks as transportable casks. In addition, as noted, WE seeks to update its WACC claim to reflect the new trial date of September 10, 2007. I. BACKGROUND No. 00-697C (Senior Judge Merow)

On November 16, 2000, WE filed its original Complaint, alleging a continuing partial breach of contract arising from the failure of the Department of Energy ("DOE") to remove SNF from WE's Point Beach Nuclear Plant ("PBNP") as required by WE's Standard Contract with the DOE, as well as other claims. Compl. at 7-10. WE's original Complaint alleged that its damages, estimated at $35 million by August 2000, "continue to accrue." Id. at ¶ 21.

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Further, WE reserved the right to recover presently unascertainable damages that may be caused by the DOE's future partial breaches of the Standard Contract. Id. On December 20, 2005, the Court issued an Order that moved the WE trial date from July 2006 to March 27, 2007. Thereafter, on February 6, 2006, WE moved for leave to file its First Amended and Supplemental Complaint ("First Amended Complaint") to update its damages since WE filed its original Complaint. On April 6, 2006, the Court granted WE's motion for leave and WE filed its First Amended Complaint on April 7, 2006. The First Amended Complaint updated WE's damages through 2005 and computed WE's claim in present dollars through the then applicable trial date of March 27, 2007. In a February 23, 2007 Order, the Court recently rescheduled trial from March 27, 2007 to September 10, 2007. WE now seeks leave to file a Second Amended and Supplemental Complaint to update its damages since the filing of its First Amended Complaint, i.e., to claim damages incurred in 2006 and early 2007 and to reflect Wisconsin Electric's total damages in present dollars up through the September 10, 2007 trial date. These damages are the same type of costs that WE has previously claimed in this litigation including cask acquisition costs, cask loading costs, spent fuel storage-related NRC fees, licensing costs to have the VSC-24 cask licensed as transportable and the WACC of WE's damages to reflect the new trial date of September 10, 2007. II. A. ARGUMENT

WE Should Be Granted Leave to Amend Its Complaint Under Rule 15(a). WE's motion for leave should be granted in the interests of justice and to facilitate the

speedy and inexpensive determination of this action. See RCFC 1. Rule 15(a) states in pertinent part: "A party may amend the party's pleadings . . . by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The decision to grant leave to amend a Complaint is within the sound discretion of the trial court. Holland v. United States, 62 Fed. Cl. 395, 406 (2005). The broad policy of granting

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amendments freely is based in part on the belief that decisions on the merits should be made whenever possible, absent countervailing considerations. Id. The U.S. Supreme Court has identified the types of limited considerations that can justify denial of a motion for leave to amend: "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962) (mandate of freely allowing amendment under Rule 15(a) "is to be heeded"). No such considerations are present here. There has been no undue delay, bad faith or dilatory motive on the part of WE. Further, there has not been repeated failure to cure deficiencies by amendments previously allowed. With trial now rescheduled for September 2007, WE simply seeks to claim those damages incurred since 2005 and to update its WACC to reflect the new September 2007 trial date. These are the same type of costs claimed in WE's original Complaint and in WE's First Amended Complaint. Because the costs at issue were incurred in 2006 and early 2007, there obviously has been no undue delay by WE. Further, there will be no "undue prejudice" to the Government. From the beginning of this action, the Government has been on notice that WE's damages would continue to accumulate after the filing of its Complaint. See Compl. ¶ 20. The Government also is extremely familiar with the types of costs at issue, namely, cask acquisition costs, cask loading costs, spent fuel storage-related NRC fees, VSC-24 licensing costs, and WE's WACC. Indeed, the Government has conducted extensive discovery and audit verification activities regarding these same types of costs. This development also is not a surprise to the Government. When trial was rescheduled from July 2006 to March 2007, WE updated its damages to include costs incurred through the end of 2005. It naturally follows that WE would seek leave to update its damages to include costs incurred through February 2007 and to incorporate the WACC for its past damages as of the new trial date of September 10, 2007.

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Moreover, contemporaneous with the filing of this motion, WE is providing to the Government the information that the Government has sought previously to verify past costs and WE's Third Supplemental Disclosures and Damages Schedules. WE's document production also includes an errata for the Kenrich Group expert report that will identify WE's updated damage claim. It also includes supporting documentation including invoices, checks, purchase orders/contracts, and the labor reports previously provided to the Government (CATS data from both WE and NMC). With the documentation that is being provided contemporaneously with this motion, the Government's damages consultants have more than sufficient time to verify that the claimed costs have been incurred. There are a few additional supporting documents that WE will provide to the Government within the next several weeks. Further, while WE does not believe that the Government will require any additional discovery regarding this claim update, there also is time available for limited discovery. Trial is not for more than five months. Moreover, to provide as much advance notice as possible, WE notified government counsel in a March 9, 2007 letter that WE intended to move for leave to amend its Complaint. See Attachment B. B. WE Should Be Allowed to Supplement Its Complaint Under Rule 15(d). Rule 15(d) permits a party to set forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims that arise after the initial pleadings are filed. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1981) (applying parallel Fed. R. Civ. P. 15(d)). Further, it is an abuse of discretion to deny an amendment when a supplemental Complaint "relates to the same cause of action originally pleaded." Intrepid v. Pollock, 907 F.2d 1125, 1129 (Fed. Cir. 1990).

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Rule 15(d) allows a plaintiff to supplement its Complaint when there has been an increase in damages identified in the original Complaint. J. F. Shea Co. v. United States, 4 Cl. Ct. 46, 54-55 (1983), aff'd, 754 F.2d 338 (Fed. Cir. 1985) ("it must be recognized that additional facts may be developed which could increase or decrease the amount of a claim"); see also St. Paul Fire & Marine Ins. Co. v. United States, 1994 WL 874400, at *15 (Fed. Cl.) (citing Shea and Rule 15(d), the Court stated: "[T]he rules of this court allow for amendments or supplemental pleadings that increase previously-categorized damages which have changed during the course of the litigation."). Indeed, an important purpose of supplemental pleading is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled. Southern Pac. Co. v. Conway, 115 F.2d 746, 750 (9th Cir. 1940). In the instant case, WE's proposed Second Amended and Supplemental Complaint alleges damages incurred after the damages sought by WE's First Amended Complaint, resulting from the Government's same continuing partial breach of the Standard Contract. For example, in its original Complaint, WE alleged the following: As a direct and proximate result of DOE's partial material breach of the Standard Contract, WE has incurred and will incur damages in a substantial amount which, as noted, exceeded $35 million dollars by August, 2000. WE's damages continue to accrue. The rate at which WE's damages will continue to accrue is dependent upon when and on what schedule DOE finally performs its contractual obligation. WE reserves its rights to recover presently unascertainable damages that may be caused by DOE's future partial breaches of the Standard Contract. Compl. ¶ 21. The damages that WE incurred prior to filing its Complaint included, among other things, the cost to construct and maintain a dry storage facility and to develop and purchase casks for use at that facility. Id. ¶ 17. WE had paid $168 million into the Nuclear Waste Fund at that time, November 2000. Id. ¶ 10.

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In its First Amended Complaint, WE alleged that it continued to pay fees to DOE under the Standard Contract. First Amended Compl. ¶ 34. WE further alleged: From November 2000 and continuing through December 2005, as a direct and proximate result of the Government's continuing partial breach of WE's Standard Contract and continuing taking of WE's property without just compensation, WE has incurred substantial damages. The amount of damages suffered by WE during this period exceeds $26 million (present dollars as of March 27, 2007), the exact amount to be determined at trial. These costs related to the following transactions, occurrences, or events, among others: fabrication oversight, purchase, and delivery of dry storage containers; loading and handling of dry storage containers; operation and maintenance of WE's ISFSI; and spent fuel management activities to address the long-term disposal of spent fuel. Id. ¶ 36. WE's Second Amended and Supplemental Complaint alleges that it continues to pay fees to DOE under the Standard Contract and that, as of January 30, 2007, it had already paid more than $217 million into the Nuclear Waste Fund pursuant to the Standard Contract. Second Amended and Supplemental Compl. ¶ 34 (Attachment A). WE further alleges: From January 1, 2006 and continuing through February 28, 2007, as a direct and proximate result of the Government's continuing partial breach of WE's Standard Contract and continuing taking of WE's property without just compensation, WE has incurred substantial damages. The amount of damages suffered by WE during this period exceeds $5.9 million (present dollars as of September 10, 2007), the exact amount to be determined at trial. These costs related to the following transactions, occurrences, or events, among others: fabrication oversight, purchase, and delivery of dry storage containers; loading and handling of dry storage containers; operation and maintenance of WE's ISFSI; and spent fuel management activities to address the long-term disposal of spent fuel. Id. ¶ 36. In sum, the allegations of WE's proposed Second Amended and Supplemental Complaint all concern damages resulting from DOE's same and continuing breach of the Standard Contract. WE's Second Amended and Supplemental Complaint merely describes the damages previously alleged and updates these damages. Since WE filed its First

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Amended Complaint in April 2006, WE has incurred approximately $5.4 million in nominal dollar damages ($5.9 million present dollars as of September 10, 2007) and WE's updated total claim in present dollars as of September 10, 2007 is $97.6 million. These additional damages are attributable to DOE's continued failure to perform under the Standard Contract. The Second Amended and Supplemental Complaint is permitted under Rule 15(d) because it is "part of the same claim arising out of the government's acts." Intrepid, 907 F.2d at 112930. Accordingly, the Court should grant WE's motion for leave to file its Second Amended and Supplemental Complaint. C. WE Should Be Allowed to Amend Its Complaint in the Interests of Judicial Efficiency Judicial efficiency would be served by allowing WE to file a Second Amended and Supplemental Complaint to update its damages. WE has entered into a Letter of Intent to sell its nuclear plant to Florida Power and Light ("FPL"), and WE expects the sale to close in October 2007. By updating its claim as sought in this motion for leave, WE expects to claim its remaining damages against DOE. WE expects that, upon closing of this sales transaction, FPL will assume all rights and obligations under the Standard Contract, including the right to recover post-Closing damages resulting from DOE's continuing failure to commence acceptance and removal of SNF for disposal as required by the Standard Contract. Again, the Government will not be prejudiced by the granting of leave to WE to update its damages claim. The costs at issue are the same type of damages that WE has previously claimed and the Government is extremely familiar with the type of costs at issue. The Government has already conducted extensive discovery and audit verification activities regarding these types of costs. Under the applicable Rule 15 standard, WE's motion should be granted so that the damage totals may be updated through February 28, 2007 and to permit WE to supplement its pleading to allow these updated damages to be resolved in this proceeding.

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III.

CONCLUSION

For the foregoing reasons, WE respectfully requests that the Court grant WE's Motion for Leave to File a Second Amended and Supplemental Complaint under Rules 15(a) and 15(d), and allow WE to file its Second Amended and Supplemental Complaint (see Attachment A).

Dated: April 10, 2007

Respectfully submitted,

Of Counsel: Donald J. Carney Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2011 (202) 434-1675

s/Richard W. Oehler by s/Emily C.C. Poulin Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8419

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that, on April 10, 2007, I caused a copy of the foregoing "Plaintiff's Motion for Leave to File a Second Amended and Supplemental Complaint" to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Emily C.C. Poulin Emily C.C. Poulin

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ATTACHMENT A

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. SECOND AMENDED AND SUPPLEMENTAL COMPLAINT Plaintiff Wisconsin Electric Power Company ("WE") files this Second Amended and Supplemental Complaint pursuant to Rules 15(a) and 15(d), through its undersigned counsel, and states as follows: I. 1. NATURE OF THE CASE (Senior Judge Merow)

No. 00-697C

This is an action for money damages based on a breach of contract claim that

WE brought against the United States, acting through the U.S. Department of Energy ("DOE"). More specifically, the DOE undertook an unconditional obligation to begin disposing of spent nuclear fuel and high-level nuclear waste (collectively, "SNF") generated by the commercial nuclear facility owned and operated by WE. Pursuant to the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. §§ 10101, et seq. ("NWPA"), DOE and WE entered into a contract in 1983 under which WE has paid and continues to pay substantial fees in return for DOE's obligation to begin removal and disposal of WE's SNF no later than January 31, 1998. WE has fully complied with its fee payment obligations under the contract. DOE, however, has failed to begin disposal of SNF as of January 31, 1998 and has stated that it will not do so until 2017 at the earliest. WE has incurred and will continue to incur significant costs and other damages as a result of DOE's partial material breach of its contractual obligations.

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II. 2.

PARTIES

WE is a Wisconsin corporation with headquarters in Milwaukee, Wisconsin.

It is primarily a public utility, providing energy to residential and business users. WE's parent corporation is Wisconsin Energy Corporation. WE is the owner and operator of Units 1 and 2 of the Point Beach Nuclear Plant ("Point Beach"). WE's nuclear plant has generated and continues to generate SNF, which is stored at the Point Beach site. 3. Defendant is the United States, acting through the DOE. III. 4. 5. JURISDICTION

The Court has jurisdiction over this action under 28 U.S.C. § 1491. WE and DOE entered into a Standard Contract for Disposal of Spent Nuclear

Fuel and/or High-Level Radioactive Waste (the "Standard Contract") pursuant to which DOE is to accept and dispose of the SNF generated by WE's nuclear plant in return for payment of fees by WE. DOE's failure to begin disposal of SNF by January 31, 1998 constitutes a partial material breach of its Standard Contract with WE for which WE may seek recovery of its damages without exhausting any administrative remedies. Northern States Power Co. v. United States, 224 F.3d 1361 (Fed. Cir. 2000). 6. Furthermore, Article XI of the Standard Contract states: "Nothing in this

Contract shall be construed to preclude either party from asserting its rights and remedies under the Contract or at law." This provides another basis for WE to pursue its legal claims without exhausting any administrative remedies. IV. 7. FACTS

In 1982, Congress enacted the NWPA, codifying the Federal Government's

commitment to accept responsibility for and to provide for the timely disposition of commercial SNF. Pursuant to the NWPA, DOE was required to commence disposing of commercially-generated SNF no later than January 31, 1998, in return for the payment of

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fees by utilities and others that generated or held title to the SNF. The fees are paid into the Nuclear Waste Fund, which is the source of funds to cover DOE's costs of disposing of the SNF. 8. Pursuant to the NWPA, DOE developed the Standard Contract in 1983. The

Standard Contract embodies the reciprocal obligations mandated by the NWPA, pursuant to which the utilities agreed to pay fees into the Nuclear Waste Fund in return for the provision of the SNF disposal services by DOE, beginning no later than January 31, 1998. The Standard Contract 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." See 10 C.F.R. Pt. 961.11, art. II. 9. Consistent with the NWPA, WE entered into a Standard Contract with DOE

on June 16, 1983. A copy of WE's contract as executed with DOE is attached as Exhibit 1. The Standard Contract requires DOE to commence disposal of WE's SNF no later than January 31, 1998. The Standard Contract also requires DOE to arrange for and to provide transportation casks and all necessary transportation of the SNF from WE's site to a DOE facility. The Standard Contract permits DOE, in order to carry out its obligations under the contract, to use any appropriate facility operated by or on behalf of DOE. 10. WE's Standard Contract provides that WE will pay the Government fees

which, together with fees paid by other utilities pursuant to contracts under NWPA, will be sufficient for DOE to implement and to operate a program for the prompt disposal of all the SNF that WE will be ready to deliver. As of January 30, 2007, WE had paid more than $217 million into the Nuclear Waste Fund pursuant to the Standard Contract and continues to pay fees into the Fund. 11. WE's Standard Contract provides that, in return for the payment of such fees,

DOE will implement and operate a program for the prompt disposal of all the SNF that WE

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will be ready to deliver. In the more than twenty-four years since the enactment of the NWPA, DOE has failed to take reasonable actions to develop and to implement an SNF disposal program or to perform its obligations to dispose of WE's SNF. 12. In 1995, DOE issued a Final Interpretation of Nuclear Waste Acceptance

Issues ("Final Interpretation") wherein DOE indicated that it would not have either a permanent repository or an interim storage facility available by 1998 and that it would not commence disposal of the SNF at a repository until 2010 at the earliest. 60 Fed. Reg. 21973, 21974 (May 3, 1995). The Final Interpretation also stated DOE's conclusion that the NWPA did not impose an obligation on DOE to dispose of the utilities' SNF in 1998 in the absence of a disposal or interim storage facility. 13. Several nuclear utilities then sought review of DOE's Final Interpretation in

the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit ruled in favor of the utilities and held that the NWPA imposed upon DOE an unconditional obligation to begin disposing of SNF by January 31, 1998. Indiana Michigan Power Co. v. Dep't of Energy, 88 F.3d 1272 (D.C. Cir. 1996). The court further held that this obligation was reciprocal to the utilities' obligation to pay fees into the Nuclear Waste Fund. The court remanded the matter to DOE for proceedings consistent with the opinion. 14. Notwithstanding the D.C. Circuit's ruling, DOE advised WE and other

Standard Contract holders that it would not begin disposal of the SNF by the January 31, 1998 deadline. Furthermore, DOE took the position that its failure to meet this deadline was excused, arguing that its delay was unavoidable. 15. In response to DOE's action, the utilities filed another petition with the D.C.

Circuit for a writ of mandamus to compel DOE to comply with the mandate in Indiana Michigan. In Northern States Power Co. v. United States, 128 F.3d 754 (D.C. Cir. 1997), the D.C. Circuit reiterated that DOE had an unconditional obligation under both the NWPA and the Standard Contract to begin disposal of the utilities' SNF by January 31, 1998. The court

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held that DOE had a clear duty to act in accordance with this unconditional obligation and issued a writ of mandamus precluding DOE from arguing that its failure to meet the January 31, 1998 deadline was unavoidable. 16. Despite the ruling in Northern States, DOE made no effort to meet the

contractual deadline. DOE did not begin disposal of the SNF by January 31, 1998, as required by the NWPA and the Standard Contract, and has indicated that it will not begin to dispose of the SNF until 2017 at the earliest. DOE has failed and refused to provide any firm commencement date for the disposal of WE's SNF. 17. As a direct consequence of DOE's breach of contractual obligations, WE has

been and will be forced to incur substantial additional costs. For example, WE has had to construct and maintain a dry storage SNF facility known as the Independent Spent Fuel Storage Installation ("ISFSI"). Construction of the ISFSI required substantial evaluation by WE, including preparation of an environmental analysis; efforts to seek the approval of the Public Service Commission of Wisconsin; and efforts to seek the approval of the Nuclear Regulatory Commission for WE's use of casks at the ISFSI. WE has also had to spend substantial monies in developing and purchasing these casks, and incurred costs relating to the delivery, loading, and handling of dry storage containers. Moreover, WE incurred costs for spent fuel management activities to address the long-term disposal of spent nuclear fuel. As of February 28, 2007, such costs exceeded $97.6 million (present dollars as of September 10, 2007). V. 18. COUNT ONE: PARTIAL MATERIAL BREACH OF CONTRACT WE incorporates by reference paragraphs 1 through 17 of this Complaint as if

set forth herein. 19. WE has complied with and continues to comply with all of its obligations

under the Standard Contract, including the payment of all required fees into the Nuclear Waste Fund.

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20.

The DOE has failed to perform its obligation under the Standard Contract to

dispose of all of WE's SNF beginning no later than January 31, 1998, and thereby has partially and materially breached the Standard Contract. 21. As a direct and proximate result of DOE's partial material breach of the

Standard Contract, WE has incurred and will incur damages in a substantial amount which, as noted, exceeded $91.7 million (present dollars as of September 10, 2007) by December 2005. WE's damages continue to accrue. The rate at which WE's damages will continue to accrue is dependent upon when and on what schedule DOE finally performs its contractual obligation. WE reserves its rights to recover presently unascertainable damages that may be caused by DOE's future partial breaches of the Standard Contract. VI. 22. COUNT TWO: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING WE incorporates by reference paragraphs 1 through 21 of this Complaint as if

set forth herein. 23. The Standard Contract between WE and DOE contains an implied covenant of

good faith and fair dealing pursuant to which DOE has a duty to perform its obligations under the contract in good faith and not to take actions detrimental to WE's contractual rights. DOE has breached the covenant of good faith and fair dealing by failing and refusing to make any effort to meet the contractual deadline for beginning disposal of SNF; by attempting to avoid its obligations under the Standard Contract as defined by the D.C. Circuit; by failing to make any effort to dispose of WE's SNF or even to provide WE with a firm date on which DOE will begin to perform the SNF disposal operations; and by insisting on WE's continued performance of its reciprocal obligation to pay fees into the Nuclear Waste Fund despite DOE's refusal to perform. 24. DOE's failure to act has not been a result of inadequate resources. DOE

annual expenditures from the Nuclear Waste Fund have consistently been below the level of

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annual receipts into the Nuclear Waste Fund. There are ample funds available to DOE to comply with its obligations under the Standard Contract. 25. In contrast to DOE's failure to take any action to meet its Standard Contract

commitments, DOE has taken action to receive, transport and store the SNF from other utilities. For example, DOE continues to accept and store the SNF from foreign research reactors. 26. As a direct and proximate result of DOE's breach of the implied covenant of

good faith and fair dealing, WE has suffered and will continue to suffer damages in excess of $10,000. VII. 27. COUNT THREE: UNCOMPENSATED TAKING

WE incorporates by reference paragraphs 1 through 26 of this Complaint as if

set forth herein. 28. WE's interests in Point Beach and related land are property rights within the

meaning of the Fifth Amendment to the U.S. Constitution. 29. DOE's failure to dispose of WE's SNF denies WE the use and value of its

Point Beach site for the foreseeable future until DOE performs its obligation to dispose of WE's SNF. 30. DOE's failure to dispose of WE's SNF effects a taking by DOE of WE's

property interests for a public purpose, which requires DOE to pay WE just compensation for that property under the Takings Clause of the Fifth Amendment to the U.S. Constitution. 31. DOE's failure to dispose of WE's SNF has destroyed WE's reasonable

investment-backed expectations arising from the NWPA and WE's Standard Contract with DOE regarding WE's use of its Point Beach site for the foreseeable future. 32. By reason of the foregoing, the Government has taken WE's property without

compensation and is liable to WE for just compensation for that property under the Takings Clause of the Fifth Amendment to the U.S. Constitution.

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VIII. COUNT FOUR: SUPPLEMENTAL PLEADING 33. WE incorporates by reference paragraphs 1 through 32 of this Complaint as if

set forth herein. 34. Since filing the Amended and Supplemental Complaint on April 7, 2006, WE

has continued to pay fees to DOE pursuant to the Standard Contract. As of January 30, 2007, WE had paid more than $217 million into the Nuclear Waste Fund pursuant to the Standard Contract and continues to pay fees into the Fund. 35. Since filing the Amended and Supplemental Complaint on April 7, 2006, WE

has incurred and continues to incur additional damages at Point Beach, which damages arise from the Government's same and continuing partial breach of WE's Standard Contract and the Government's same and continuing taking of WE's property without just compensation. 36. From January 1, 2006 and continuing through February 28, 2007, as a direct

and proximate result of the Government's continuing partial breach of WE's Standard Contract and continuing taking of WE's property without just compensation, WE has incurred substantial damages. The amount of damages suffered by WE during this period exceeds $5.9 million (present dollars as of September 10, 2007), the exact amount to be determined at trial. These costs related to the following transactions, occurrences, or events, among others: fabrication oversight, purchase, and delivery of dry storage containers; loading and handling of dry storage containers; operation and maintenance of WE's ISFSI; and spent fuel management activities to address the long-term disposal of spent fuel. 37. WE continues to reserve its right to recover future damages that may be

caused by the Government's future partial breaches of the Standard Contract and the Government's continuing taking of WE's property without just compensation. IX. PRAYER FOR RELIEF

WHEREFORE, WE respectfully requests that the Court enter judgment in its favor and against the United States as follows:

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1.

On Count One, for damages in an amount in excess of $91.7 million (present

dollars as of September 10, 2007), the exact amount to be proven at trial; 2. 3. 4. On Count Two, for damages in an amount to be proven at trial; On Count Three, for damages in an amount to be proven at trial; On Count Four, for damages in an amount in excess of $5.9 million (present

dollars as of September 10, 2007), the exact amount to be proven at trial; 5. 6. and 7. Such other relief as the Court deems just and equitable. Prejudgment and post-judgment interest as permitted by law; Costs of this action, including reasonable attorneys' fees, as permitted by law;

Dated: April 10, 2007

Respectfully submitted, s/Richard W. Oehler by s/Emily C.C. Poulin Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8419

Of Counsel: Donald J. Carney Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1675

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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