Free Status Report - District Court of Federal Claims - federal

Case 1:03-cv-02663-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

ENTERGY NUCLEAR VERMONT YANKEE, LLC, et al., Plaintiff, v. THE UNITED STATES, Defendant.

No. 03-2663C (Judge Hodges)

PLAINTIFFS' STATUS REPORT IN RESPONSE TO THE COURT'S JUNE 9, 2004 ORDER Plaintiffs Entergy Nuclear Vermont Yankee, LLC ("ENVY") and Entergy Nuclear Operations, Inc., hereby submit, through their undersigned counsel, this brief status report in response to the Court's June 9, 2004 Order requiring Plaintiffs to state their position regarding the "posture of this case" and whether they wish "to participate in the joint [discovery] proceedings discussed at the April 30 hearing" before Judge Sypolt. First, the posture of this case has not changed significantly since Plaintiffs filed their February 2, 2004 status report regarding pre-trial matters and their April 23, 2004 status report regarding the need for discovery. The parties are currently in the process of negotiating several changes to the protective order that was entered in this case on March 23, 2004. The revised protective order will conform more closely with the protective order entered in the coordinated discovery proceedings and allow Plaintiffs to produce to Defendant (the "Government") a copy of the purchase and sale agreement for the Vermont Yankee nuclear power plant between ENVY and plaintiff in Vermont Yankee Nuclear Power Corp. v. United States, No. 02-898C ("Vermont Yankee"). According to the Government, "until we are able to obtain a copy of that purchase

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and sale agreement, it is not possible to identify whether the Court should resolve the pending partially dispositive motions in the Vermont Yankee case or whether the assignment [to ENVY of the Standard Contract between Vermont Yankee Nuclear Power Corporation and the Government] renders the motions here moot or otherwise unnecessary." Defendant's Response To The Court's January 15, 2004 Order at 2-3 (Feb. 17, 2004). Thus, once a revised protective order has been entered in this case and the Government has reviewed the purchase and sale agreement, the extent to which the parties in this case will file any dispositive motions will become clearer. Second, with regard to the April 30, 2004 hearing before Judge Sypolt, Plaintiffs do not believe that any "coordinated discovery" should proceed at this time.1 Rather, as noted in Plaintiffs' Status Report dated April 23, 2004, to the extent that the Government intends to contest liability or to file other allegedly dispositive motions concerning Plaintiffs' standing or other legal issues, Plaintiffs desire to resolve those issues now. Pending resolution of these purely legal issues, Plaintiffs are not opposed to deferring (1) briefing on the acceptance rate and other damages-related issues,2 and (2) conducting discovery on the acceptance rate and other At the April 30th hearing, Judge Sypolt requested that parties to the "new" spent fuel cases (which include Plaintiffs) file a single document summarizing their positions regarding potential stays and discovery; Judge Sypolt further instructed that the parties' response be filed electronically in one of the spent fuel cases pending before Chief Judge Damich and in a spent fuel case pending before Judge Sypolt. Subsequently, the parties to the "new" spent fuel cases (including Plaintiffs) filed a status report on May 7, 2004 regarding the April 30th hearing in two cases, Entergy Nuclear Fitzpatrick, LLC v. United States, No. 03-2627C (Damich, C.J.) and Niagara Mohawk Power Corp. v. United States, No. 04-0124C (Sypolt, J.). Plaintiffs' positions (which include, inter alia, an opposition to the need for coordinated discovery) in these May 7th filings are consistent with those expressed in this status report. In this regard, Plaintiffs had requested that the Court defer pretrial matters in this case until the briefing on the Government's partially dispositive motions in Vermont Yankee was completed; Plaintiffs also stated that they are prepared in principle to adopt in this case the same filings associated with the Government's partially dispositive motions on the acceptance rate and Greater-Than-Class-C waste in Vermont Yankee (due to the similarities in the two cases). Plaintiffs' Response To The Court's January 15, 2004 Order at 1 (Feb. 2, 2004). 2
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damages-related issues. Plaintiffs also expect that, to the extent any discovery on the acceptance rate issue is required, such discovery will be extremely limited and will likely consist only of updating information previously obtained by other spent fuel plaintiffs in coordinated discovery.

Dated: June 18, 2004

Respectfully submitted,

OF COUNSEL: Jay E. Silberg Devon E. Hewitt Michael G. Lepre Daniel S. Herzfeld Jack Y. Chu SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)

s/ Alex D. Tomaszczuk by s/ Jack Y. Chu Alex D. Tomaszczuk SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, VA 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiffs Entergy Nuclear Vermont Yankee, LLC, Entergy Nuclear Operations, Inc.

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