The Atomic Energy Act, passed in 1954, declared support for the beneficial and peaceful uses of atomic energy and established programs to encourage development of, and to regulate, those uses. The statute and subsequent amendments give the NRC regulatory authority over the use and possession of radioactive source material, byproduct material, and special nuclear material within the United States. This includes not only the regulation of commercial nuclear power plants but also a wide range of entities that use radioactive materials, including nuclear fuel cycle facilities, hospitals, laboratories, universities, pharmaceutical and manufacturing companies, and waste handling and disposal companies. The NRC has established a detailed and stringent set of licensing and regulatory requirements to assure adequate protection of public health and safety and the common defense and security of the United States. Considerable attention is now being focused on effectiveness of management of licensed operations, protection of the rights of individuals who raise safety concerns without fear of reprisal, cleanup of contaminated facilities, and disposal of low-level radioactive waste and spent nuclear fuel.
ML&B's nuclear regulatory practice is co-headed by Jack Newman and George Edgar and includes representation of energy and energy-related companies in the United States and abroad, including electric utility owners, operators of nuclear facilities, and companies that supply equipment and services to the energy industry.
In 1974, Congress responded to criticism about the conflicting promotional and regulatory missions assigned to the Atomic Energy Commission. The NRC was established and received the AEC's broad authority to regulate uses of radionuclides. Today, the Department of Energy holds the mandate to promote beneficial uses of atomic energy.
In addition to the administrative split, the Energy Reorganization Act established new statutory protections for the employees of holders of NRC licenses. Section 211 makes it unlawful for an employer to discriminate against an employee for raising nuclear safety concerns or for engaging in any other protected activities. Employment discrimination charges are heard and decided by the Secretary of Labor. The NRC also has established implementing regulations that make it a violation of NRC requirements to discriminate against an employee for engaging in such activities. Many NRC licensees have established formal policies and programs to assure that personnel feel free to raise safety concerns and that, once raised, such concerns are properly investigated and resolved.
The LLRWPA established the legal and regulatory framework governing the disposal of low-level radioactive waste in the United States. While the 1980 Low-Level Radioactive Waste Policy Act authorized a system of interstate compacts (under which states formed compacts to provide for the regional disposal of low-level waste in new low-level waste disposal facilities), as of 1985, very little had been done to site such new disposal facilities. The 1985 amendments established deadlines for the achievement of milestones toward developing new disposal capability within each interstate compact. The states' failure to meet some of those milestones has resulted in severe restrictions on access to disposal capacity for most low-level waste generators.
The take title provision of the Act (which would have required states to accept legal title to commercially-generated low-level waste if they had not provided for adequate disposal capacity for such waste), was, with respect to compact-member states, struck down by the Supreme Court in New York v. United States, 112 S. Ct. 2402 (1992). Other provisions have been similarly ineffective in encouraging development of new disposal facilities.
The alternative facing most low-level waste generators is long-term on-site storage, and treatment, processing, and volume reduction technologies will assume greater importance as such storage continues to be necessitated.
The Nuclear Waste Policy Act of 1982 established the Nation's program for interim storage of spent nuclear fuel and high-level radioactive waste, identification of a suitable location for ultimate disposal in a deep geologic repository, and the development and licensing of such a repository. Most of the deadlines established in the 1982 Act have not been met. The program remains intact, however. Today, the Department of Energy continues to make slow progress on characterization of the Yucca Mountain, Nevada site as the national high-level waste repository. While specific performance requirements for deep geologic disposal continue to be debated, the NRC is actively developing plans to evaluate the license application to be filed by the DOE.
In the meantime, on-site storage capacity is becoming critical at many reactor sites. As a result, the issue of interim spent fuel storage presents a more immediate challenge to utilities and their customers across the country. While utility ratepayers have contributed billions of dollars to the Nuclear Waste Fund through the Act's surcharges, the Federal Government still has no interim storage capacity available to meet its statutory obligation to begin taking title to spent fuel in 1998. Public utility commissions and the NRC are being forced to consider proposals for increased storage capacity at several reactor sites. This dilemma has spurred utilities, states, and state agencies to sue DOE in order to clarify the obligations of the federal government and assure equity with respect to the cost of developing additional storage capacity.
While the court contest continues, we anticipate legislation during the 104th Congress to address the DOE's lack of progress on characterization of the Yucca Mountain site as the nation's first high-level radioactive waste repository and the obligations of the DOE to provide interim storage.