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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 00-697C (Senior Judge Merow)

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE EXPERT TESTIMONY OF MS. EILEEN M. SUPKO

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1675 Dated: February 20, 2007

Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, 40th Floor Seattle, Washington 98101-3099 (206) 359-8419 Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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TABLE OF CONTENTS Page I. II. BACKGROUND......................................................................................................2 ARGUMENT ...........................................................................................................3 A. Ms. Supko's Reliable and Relevant Testimony Satisfies the Liberal Standard for the Admission of Expert Testimony ..........................................4 1. 2. B. Ms. Supko's Opinions Are Reliable and Relevant in This Case .........5 Ms. Supko's Opinions Will Assist the Court With Regard to the Acceptance Rate Issue .................................................................8

Ms. Supko's Testimony "Concerning the Impact of DOE's Acceptance Rate" Is an Appropriate Use of Expert Testimony That Does Not Supplant This Court's Role as Interpreter of Law..........................................9

III.

CONCLUSION ...................................................................................................... 11

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TABLE OF AUTHORITIES Page Cases Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ..................................................5 Indiana Michigan Power Co. v. United States, 60 Fed. Cl. 639 (2004) .............................. 2, 6 Kopf v. Skyrm, 993 F.2d 374 (4th Cir. 1993) .........................................................................8 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ............................................................5 Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387 (Fed. Cir. 2003) .......................................5 Northern States Power Co. v. United States, No. 98-484C (Wiese, J.) ...................................2 Seaboard Lumber Co. v. United States, 308 F.3d 1283 (Fed. Cir. 2002) ................................5 Southern Nuclear Operating Co., et. al. v. United States, No. 98-614C (Merow, J.) .......... 2, 7 Thomas v. Newton Int'l Enters., Inc., 42 F.3d 1266 (9th Cir. 1994) .......................................4 Statutes 42 U.S.C. § 10131(a)(4) ........................................................................................................8 42 U.S.C. § 10131(a)(5) ........................................................................................................8 Regulations and Rules Fed. R. Evid. 702 .................................................................................................. 1, 4, 5, 6, 9

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 00-697C (Senior Judge Merow)

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE EXPERT TESTIMONY OF MS. EILEEN M. SUPKO

Plaintiff Wisconsin Electric Power Company ("WE") hereby responds to Defendant's January 31, 2007 Motion In Limine To Exclude The Testimony of Plaintiff's Expert Witness, Ms. Eileen M. Supko, Regarding the Impact of the Rate of Acceptance Under the Standard Contract ("Gov't Motion"). Ms. Supko's testimony reflects her application of technical and specialized knowledge to issues of importance in this case and will assist the Court in understanding the evidence and determining facts at issue. Therefore, Ms. Supko's testimony satisfies the requirements of Rule 702 of the Federal Rules of Evidence ("Rule 702") and is admissible. The Government's motion is premised upon (1) a mischaracterization of the nature and scope of Ms. Supko's proffered testimony and (2) a narrow interpretation of the "acceptance rate" issue1 and its relevance in this case. Ms. Supko's expert opinions readily satisfy the liberal requirements of Rule 702. Most of the Government's arguments here are
1

As the Court is aware, the term "acceptance rate" refers generally to the annual rate at which the Department of Energy ("DOE") accepts spent nuclear fuel ("SNF") from this nation's plants in the aggregate, consistent with the purposes of the Nuclear Waste Policy Act (the "NWPA") and the Standard Contract.

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identical to those that have been rejected in other spent nuclear fuel ("SNF") damage cases. Similar to her testimony regarding the acceptance rate issue in other SNF cases, Ms. Supko's testimony in this case reflects an application of her specialized knowledge regarding spent fuel storage by commercial nuclear utilities--knowledge that will assist the Court in understanding the practical implications of the acceptance rates that the parties have proffered in this damages case.2 Thus, for the reasons detailed below, the Government's motion in limine should be denied. I. BACKGROUND

Ms. Supko has more than 20 years experience working in the nuclear industry, with primary expertise in the storage and disposal of SNF and the Department of Energy's ("DOE") plans regarding SNF storage and disposal. Ms. Supko holds a Bachelor of Science in Nuclear Engineering from Pennsylvania State University. Appendix ("App.") at 2. After graduation, Ms. Supko began working on nuclear fuel issues, beginning as a Nuclear Fuel Projects Engineer at the Carolina Power and Light Company. App. at 2. Since 1990, Ms. Supko has worked as a consultant at Energy Resources International ("ERI"), consulting in the area of SNF, nuclear waste management, and radioactive materials transport. App. at 3. In her work, Ms. Supko assisted and advised commercial utilities, members of the U.S. Congress, Congressional staff, state and local officials, and the Nuclear Energy Institute ("NEI") on a variety of nuclear fuel issues, including analysis of DOE's civilian waste

2

For example, Ms. Supko has testified in Indiana Michigan Power Co. v. United States, 60 Fed. Cl. 639, 64647 (2004) (Hodges, J.) (accepting Supko as an expert on acceptance rates and SNF storage and licensing); Southern Nuclear Operating Co., et. al. v. United States, No. 98-614C (Merow, J.) ("Southern Nuclear"), Trial Tr. at 880-81, App. at 27-28 (Supko testimony admitted on the acceptance rate issue); and Northern States Power Co. v. United States, No. 98-484C (Wiese, J.), Trial Tr. at 2104-05, App. at 35-36 (Supko testimony admitted on the issue of acceptance rate, spent fuel management, spent fuel transportation, and utility treatment of those issues).

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management program, nuclear fuel storage, SNF transport and disposal issues, and nuclear fuel cycle issues. App. at 3, 5-7. She has authored more than 35 reports, presentations, and publications in leading nuclear energy journals and has been an invited speaker at more than a dozen conferences sponsored by leaders in the nuclear industry. App. at 3, 5-10. Ms. Supko's experience has given her expertise not only in the broad subject matter of the nuclear industry, but on matters highly relevant to the present case, specifically SNF storage and acceptance rate issues. App. at 3, 5-7. At DOE's recommendation, she was invited to serve as a U.S. technical expert to the International Atomic Energy Agency ("IAEA") and has assisted that agency's preparation of an IAEA technical report concerning international spent fuel storage by contributing an overview of the U.S. dry storage licensing and operations experience. App. at 14. Relying on her more than 20 years of experience and her resulting specialized knowledge of the field, Ms. Supko's testimony provides opinions regarding the impact of different SNF acceptance rates. Ms. Supko's testimony therefore provides highly relevant context to assist the Court in its factual determinations. II. ARGUMENT

When DOE and WE entered into the Standard Contract, the intent of the parties was that DOE would accept SNF at a rate that: (1) would generally eliminate the need for additional on-site SNF storage capacity after 1998, and (2) reduce the accumulated backlog of SNF at nuclear facilities at a reasonable rate. See Plaintiff's October 27, 2006 Memorandum of Contentions of Fact and Law at 8-10 ("WE Pretrial Brief"). Ms. Supko's testimony is exactly what this Court needs in order to evaluate WE's damage claim. Ms. Supko's expert analysis and industry knowledge evaluates, as a factual matter, whether certain acceptance rates would accomplish these purposes. WE Pretrial Brief at 23-24. Ms. Supko's report evaluated several options, ultimately finding that DOE performance at a

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steady-state rate of 3,000 MTU after a five-year ramp-up period most efficiently met these two purposes. WE Pretrial Brief at 23. Ms. Supko performed an extensive analysis regarding the effect that various spent fuel acceptance rates would have on utility requirements for additional spent fuel storage capacity and the effect on the timely decommissioning of nuclear power plants. Appendix to Gov't Motion ("Gov't App.") at 179-191. Contrary to the Government's suggestions, Ms. Supko's testimony does not require her to opine on DOE's legal obligations under the Standard Contract. Such determinations are reserved for the Court. Rather, as explained below, Ms. Supko's opinion falls squarely within the province of an expert--to assist the Court in considering the damages resulting from DOE's breach of the Standard Contract. A. Ms. Supko's Reliable and Relevant Testimony Satisfies the Liberal Standard for the Admission of Expert Testimony Rule 702 sets forth a "liberal standard" for the admission of expert testimony. See, e.g., Thomas v. Newton Int'l Enters., Inc., 42 F.3d 1266, 1269 (9th Cir. 1994) ("[Rule] 702 . . . contemplates a broad conception of expert qualifications."). As amended in 2000, Rule 702 permits expert testimony as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts and data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. See also Rule 702 advisory committee note ("A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule").

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While the U.S. Supreme Court's decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), impose on the Court a "gatekeeper obligation" to ensure that expert testimony is relevant and reliable, "these concerns are of lesser import in a bench trial, where no screening of the factfinder can take place." Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002). The Daubert inquiry is a "flexible one," and the analysis depends "on the nature of the issue, the witness's expertise, and the subject of the testimony." Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391 (Fed. Cir. 2003) (citing Kumho Tire Co., 526 U.S. at 150). 1. Ms. Supko's Opinions Are Reliable and Relevant in This Case

Ms. Supko's modeling of the effect of different acceptance rates is precisely the type of work that requires expert analyses and requires the application of the specialized knowledge that she has developed over two decades of advising commercial nuclear utilities regarding their operations and long-term planning. The Government's criticism of Ms. Supko's methodology and the relevance of her conclusions simply reflects a difference of opinion between her report and how the Government would prefer to frame the acceptance rate and the calculation of damages in this case. A party's disagreement with an expert, however, is not a sufficient basis for her exclusion. Ms. Supko's opinions are derived from a principled methodology that meets the requirements of Rule 702. In her report, Ms. Supko models the effect of a wide range of annual acceptance rates on the utility industry. The acceptance rates modeled--900 MTU, 3,000 MTU, and 6,000 MTU--are taken from the universe of DOE waste acceptance program documents from the last 25 years. Gov't App. at 179-180, 207-10. She also incorporated sensitivity analyses regarding different ramp-up rates and the intra-utility use of acceptance rights. Gov't App. at 186-88. Further, Ms. Supko "reviewed DOE and DOE contractor methodologies for the

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projection of spent nuclear fuel discharges as well as DOE's model for projecting spent nuclear fuel discharges." Gov't App. at 145. In conducting her analysis, Ms. Supko used a computer simulation model for SNF acceptance developed by her company, ERI, called the "SPNTFUEL model" and noted that, assuming similar input assumptions, "both the DOE model and ERI's SPNTFUEL model will result in similar projected spent nuclear fuel acceptance rights. . . ." Gov't App. at 145. After considering a number of acceptance rates, Ms. Supko compared the results of her analyses using the SPNTFUEL model against the aforementioned acceptance rate criteria, namely, to reduce the backlog of SNF at utility sites and to limit the amount of additional atreactor storage needed after 1998. Ultimately, Ms. Supko concludes that DOE performance at a 3,000 MTU steady state rate after a five-year ramp-up period is reasonable, because such performance would reduce the backlog of SNF at utility sites and limit the amount of additional at-reactor storage needed after 1998 on an industry-wide basis. Gov't App. at 190-91. The Government's focus on a minimum reasonable rate, Gov't Motion at 15, may reflect its own litigation-based view of how damages should be calculated in the SNF cases, but is not itself a valid criticism of Ms. Supko's opinions and methodology. Indeed, "minimum reasonable acceptance rates" are a theoretical issue at best and have no bearing on this Court's adjudication of damages. Thus, Ms. Supko's decision not to undertake such efforts is irrelevant. Rather, Ms. Supko's methods are valid because she tested the reasonableness of concrete acceptance rates that are actually found in DOE's own program documents. In other words, Ms. Supko based her model on sufficient data and has applied her methods "reliably to the facts of this case." Fed. R. Evid. 702. The Government's other criticisms of Ms. Supko's opinions are similarly grounded in flawed assumptions regarding how this Court should adjudicate damages in the SNF cases.

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For example, the Government characterizes Ms. Supko's model as lacking "evidentiary support" because it does not represent either the "but for" or actual worlds. Gov't Motion at 19-27. The Government argues that Ms. Supko inconsistently mixes information from the but-for and actual cases. Gov't Motion at 21-23. The Government focuses on pool capacities, criticizing Ms. Supko for not consistently assuming pre-1998 capacity. Gov't Motion at 23. This criticism is misplaced. First, the Government mischaracterizes Ms. Supko's testimony. As Ms. Supko testified in Southern Nuclear, she decided whether to include post-1998 storage modifications depending on whether such an addition would be appropriate in the non-breach world. See Southern Nuclear, Trial Tr. at 750-757, App. at 1724. Second, post-1998 pool capacity changed for only 12 plants out of the 122 plants with SNF. App. at 22. Ms. Supko testified in that case that the inclusion of these modifications would not affect her conclusions. Trial Tr. at 750, 755, App. at 17, 22. Thus, the purpose of Ms. Supko's testimony is to demonstrate for the Court how a 3,000 MTU steady state acceptance rate would remove an industry-wide need for additional on-site storage capacity after 1998 and reduce the accumulated backlog of SNF at utility plant sites.3 The fact that these opinions may conflict with the Government's theory of the case does not render them irrelevant or unreliable for purposes of satisfying Rule 702.

3

As explained in its pretrial brief, WE's oldest fuel first priority assured WE of acceptance rights in 1998 and thereafter that were sufficient to avoid the necessity for additional storage. Plaintiff's Memorandum of Contentions of Fact and Law at 22. In an obtuse attack on Plaintiff's theory of the acceptance rate, the Government, argues that, if any utility required any additional at-reactor storage under DOE spent fuel acceptance at a 3,000 MTU acceptance rate, such performance would somehow constitute a "breach" of the Standard Contract for that utility contract holder because the NWPA's "goals" of avoiding additional at-reactor storage capacity after 1998 and removing of accumulated SNF backlog at plant sites would allegedly not be satisfied. Gov't Motion at 27-28. No utility has made such an argument, and as the breaching party the Government is hardly in a position to argue the point. Furthermore, assuming that DOE was actually pickingup waste at a 3,000 MTU steady-state rate, utilities facing potential additional at-reactor storage needs would have had a number of alternatives available short of adding more permanent storage capacity to meet their requirements, including but not limited to the use of exchanges and other flexibilities built into the Standard Contract, the use of temporary wet storage capacity (temporary rack(s)), and changes to fuel management plans. Like the Government's earlier suggestion in this litigation that its pick-up of one spent fuel rod would satisfy its

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2.

Ms. Supko's Opinions Will Assist the Court With Regard to the Acceptance Rate Issue

Ms. Supko's expert opinions provide this Court with the necessary context in which to address the acceptance rate issue. Testimony from an expert is presumed to be helpful unless it concerns matters within the "everyday knowledge and experience of the [trier of fact]." Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993). The acceptance rate, although not necessarily a complex technical concept, is sufficiently outside everyday knowledge and experience that expert testimony on the issue would assist (but not supplant) the Court's factfinding role. For example, Ms. Supko's SPNTFUEL model illustrates the effect of various SNF acceptance rate scenarios (as contained in DOE waste acceptance program documents) on the industry-wide need for additional on-site storage capacity after 1998 and the accumulated backlog of SNF at utility plant sites. By comparing and contrasting these scenarios, Ms. Supko can help the Court understand and determine the type of DOE performance that would have been consistent with the purposes of the NWPA and the Standard Contract. Similarly, Ms. Supko also can assist the Court by explaining how these acceptance rate scenarios apply specifically to WE--in particular, the acceptance rights that would be projected for the WE's nuclear plant and how DOE acceptance of SNF at that plant, under different acceptance rates, would (or would not) work off the backlog at the plant given its actual and projected spent fuel discharges. In summary, Ms. Supko's expert opinions provide a technical basis for why performance by DOE at a steady-state rate of 3,000 MTU after a five-year ramp-up period is

statutory and contractual obligations, the Government's latest position ignores the fundamental purposes of both the NWPA and the Standard Contract (i.e., avoiding the need for additional at-reactor storage and working off the backlog). While the NWPA lodged the responsibility with the utilities for paying for DOE's disposal program and to provide interim storage of SNF, the utilities only had the responsibility for the costs of interim storage "until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the provisions of this Act . . . ." 42 U.S.C. §§ 10131(a)(4) & (5).

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consistent with WE's theory of the acceptance rate discussed above (and in its pretrial brief). Her testimony meets the standard set forth in Rule 702 and is therefore admissible.4 B. Ms. Supko's Testimony "Concerning the Impact of DOE's Acceptance Rate" Is an Appropriate Use of Expert Testimony That Does Not Supplant This Court's Role as Interpreter of Law As noted, Ms. Supko has more than two decades experience advising commercial nuclear utilities regarding their operations and long-term planning. Based on this experience, she is more than qualified to testify regarding general SNF storage practices and related technical issues in the nuclear industry. Nonetheless, the Government seeks exclusion of Ms. Supko's testimony based on the fact that Ms. Supko was not involved in the promulgation of the Standard Contract. Gov't Motion at 31-32. In addition, the Government mistakenly supposes that Ms. Supko's role would be to opine upon the intentions of the parties in their execution of the Standard Contract, citing authority regarding the role of an expert witness in interpreting a contract clause. Gov't Motion at 32. As demonstrated above, Ms. Supko's testimony will assist the Court in two ways: (1) she brings considerable knowledge of the issues, background, and history surrounding the SNF dilemma that will provide this Court a proper context for evaluating the terms of the Standard Contract; and (2) her detailed analyses of the role of different acceptance rates will help this Court decide, as a factual matter, the reasonableness of a given acceptance rate. Ms. Supko's testimony leaves the ultimate interpretation of the Standard Contract clauses to this Court. Instead, it provides context and facts to assist the Court in its endeavor--which is the primary role of an expert witness.

4

The data underlying Ms. Supko's rate report also is relevant because it establishes that, had DOE performed in 1998 at a reasonable rate under the Standard Contract, the majority of utilities likely would have had sufficient wet storage capacity to avoid building dry storage. Therefore, the Nuclear Regulatory Commission ("NRC") would not have imposed, at least in part, the spent fuel storage fee upon power reactor licensees as a class.

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The Government has misinterpreted Ms. Supko's role in this trial, and seems to suggest that her testimony regarding spent fuel storage practices and related technical issues somehow supplants this Court's role in interpreting the law. This position lacks merit. Ms. Supko's opinions on acceptance rate scenarios, based on her first-hand experience, and decades of knowledge regarding the storage of SNF by commercial nuclear utilities, will assist the Court in understanding the reasonableness of potential acceptance rates both as an historical matter as well as specific to WE's circumstances. Without her testimony, this Court is left with only the bare suggestions of each party to the litigation as to what is a reasonable acceptance rate. Ms. Supko's testimony provides historical benchmarks by which this Court can measure each party's suggestion. Thus, the Government's argument that Ms. Supko's testimony is somehow inconsistent with her role as an expert witness is unfounded. Ms. Supko has testified at trial in five SNF damages cases before this Court (and been deposed in several more). In recent trials where Ms. Supko has testified,5 the Court did not report any problems distinguishing between Ms. Supko's role as expert and the Court's role as interpreter of law. In the Southern Nuclear trial, for example, the Court found her testimony very helpful, stating, "Well, I need all the help I can get in this case, so I will say that I will admit the testimony and I do consider the witness qualified to be expressing expert opinion in that regard." Trial Tr. at 880, App. at 27 (admitting Ms. Supko's opinions regarding reasonable acceptance rates). Contrary to the Government's suggestions that Ms. Supko's factual analysis will be merely "the result of common sense," Gov't Motion at 28, Ms. Supko's highly technical work and expert testimony will provide this Court critical context to assess WE's actions as it reaches its determinations of fact. Besides, the

5

See footnote 2.

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Government will have more than ample opportunity through cross-examination to challenge her expert opinion regarding a reasonable acceptance rate. III. CONCLUSION

Ms. Supko's expert opinions are derived from her specialized knowledge regarding the spent fuel storage in the commercial nuclear industry--reliable and relevant knowledge that will assist the Court in understanding the practical implications of the acceptance rate theories that the parties have proffered in this and other spent nuclear fuel damages cases. For the foregoing reasons, the Government's motion in limine should be denied. DATED: February 20, 2007 Respectfully submitted, s/Richard W. Oehler by s/Donald J. Carney Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 (206) 359-8419 Phone (206) 359-9419 Fax Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2001 (202) 434-1675

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CERTIFICATE OF SERVICE I certify under penalty of perjury that, on February 20, 2007, I caused a copy of the foregoing "Plaintiff's Response to Defendant's Motion in Limine to Exclude the Expert Testimony of Ms. Eileen M. Supko" 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/Donald J. Carney Donald J. Carney

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