Project Posner

Lead opinion by POSNER

   MEMORANDUM AND ORDER

   RICHARD A. POSNER, UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION

   The following issues have previously been decided by the Court as a matter of law, by motion, by oral ruling at a pretrial conference, or waived. The parties, therefore, will not be permitted to present evidence or otherwise contest these matters at trial, and their previous filing shall stand as their offers of proof thereon.

(1) Assignment of Risk. As a matter of law, Section 16 of the Contract assigned to AGNS the risk that it might fail to obtain an operating license, and thus AGNS's failure to obtain an operating license prior to an event of force majeure is not a defense to its contractual obligation either to reprocess Edison's spent fuel or to supply Edison with nuclear fuel from some other source. Section 16 of the Contract did not assign to AGNS the risk of a permanent moratorium on all commercial reprocessing. Neither did Section 16.1(b) assign to AGNS the risk of a temporary moratorium if after the moratorium was lifted performance would be materially more burdensome.

(2) Liability. AGNS breached its contract with Edison by failing to deliver EFM and take title 2 to the spent fuel covered by the Contract, either through the force majeure date of December 23, 1977, or some date earlier, if the jury finds that AGNS successfully terminated the Contract pursuant to Section 17.1(b) of the Contract.

(3) Force majeure. As a matter of law, the NRC's December 23, 1977 order terminating the GESMO proceeding constituted an effective moratorium on all commercial reprocessing so protracted as to amount to an outright ban. No earlier event, however, constituted force majeure sufficient to excuse AGNS from its contractual obligations. In particular, no event such as delays caused by events beyond its control including transportation, public opposition, acts of government officials, compliance with orders, judgments, actions (or failures to act) of any court, agency or authority constituted force majeure to AGNS's obligations before December 23, 1977.

(4) Due Diligence. Given any diligence would have been ineffective, whether AGNS used due diligence in its efforts to obtain an operating license is not a material issue.

(5) Conditions Precedent. All alleged conditions precedent to AGNS's performance were either satisfied by Edison, waived 3 by AGNS's conduct, or waived in response to Edison's summary judgment motion on liability.

(6) Misrepresentation. Edison did not misrepresent its requirements for reprocessing services to AGNS or fraudulently induce AGNS to complete its Barnwell facility.

(7) Consequential Damages. Edison's cost of storing spent nuclear fuel that AGNS was required to take are not consequential damages. The limitation of liability in Section 17.4(b) of the Contract is inapplicable to Edison's claimed damages. As a matter of law, storage and fees under the Nuclear Waste Policy Act are not excluded as consequential damages.

(8) EFM Damages -- Carrying/Delay Costs. Edison's recoverable EFM damages are not limited to its "carrying" or "delay" costs.

(9) Edison's Uranium Inventories. AGNS has no "stockpile" defense to the damage claim by Edison.

(10) 1977 Discharges. AGNS's contention that under Section 16.1(a) it is not liable for 1977 discharges is untimely and has been waived.

(11) Section 8.8(a). The term "Waste Material" in Section 8.8(a) of the Contract does not encompass spent fuel. Section 8.8(a) of the Contract imposes no obligation on Edison to store and dispose 4 of spent fuel.

(12) Interim Storage. There was no market for spent fuel storage at the time of the breach and therefore Edison may not recover the market value of storing spent fuel covered by the Contract. Edison is entitled to recover only its incremental costs relating to storing such fuel.

(13) Zion Option. Section 2.2 of the Contract, which provides Edison with an option to include under the Contract fuel discharged from its Zion nuclear station, is not too indefinite to be enforceable.

(14) Equitable Relief. Edison's remedy for AGNS's failure to take title to spent fuel covered by the Contract is not inadequate as a matter of law.

(15) Byron/Braidwood. Evidence relating to Edison's Byron or Braidwood nuclear stations is irrelevant to the damages issues remaining for trial.

(16) Impracticability. In light of my ruling on force majeure, there is no issue of impracticability open for trial.

(17) Modification or Waiver of Performance Date by Edison. AGNS has waived the argument that Edison agreed to modify or waive the first performance dates under Section 16 to dates beyond December 23, 1977 in its response to Edison's summary judgment motion 5 on liability.

(18) Other Defenses. AGNS has waived other defenses to liability, including the defenses of mistake, waiver, estoppel, laches or unconscionability.

   As should be obvious, this order does not purport to modify any earlier opinion or ruling made in this case. Its sole purpose is to allow the parties to preserve their objections to these earlier rulings without a formal offer of proof at trial.

Date: March 21, 1990