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. NRC devotes considerable attention to effective 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.

• Regulatory counseling on the full range of licensing and regulatory issues before the Nuclear Regulatory Commission.
• Regulatory counseling to Department of Energy contractors on DOE and NRC nuclear regulatory requirements.

Morgan Lewis 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, DOE nuclear contractors, 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.

• Representation in DOL proceedings.
• Negotiation of settlement agreements.
• Advice on structuring employee concerns programs to avoid harassment or unsupported allegations.
• Representation and assistance in preparation for and follow-up from NRC investigations.
• Analysis of legislation and regulatory developments.
• Litigation regarding judicial review of Secretary of Labor decisions.

The Low-Level Radioactive Waste Policy Act (LLRWPA) established the legal and regulatory framework governing the disposal of low-level radioactive waste in the United States. While the 1980 LLRWPA 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 restrictions on access to disposal capacity for most low-level waste generators and excessive disposal costs.

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, 505 U.S. 144 (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.

• Analysis of and participation in legislative and regulatory developments.
• Advice on compliance with NRC requirements for transportation, treatment, storage, and disposal of low-level waste and mixed radioactive and hazardous wastes.
• Development of licensee decommissioning plans.
• Assistance on waste import/export transactions and approvals.

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, and the Department of Energy continues to make slow progress on designation 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 on two occasions in order to clarify and enforce the obligations of the federal government.

On July 23, 1996 the United States Court of Appeals for the D.C. Circuit issued a decision in Indiana Michigan Power Co. v. DOE, holding that the Nuclear Waste Policy Act imposed an unconditional requirement upon the Department to begin taking spent nuclear fuel from utilities on or before January 31, 1998. Contrary to the position adopted by DOE, the Court held that this obligation existed whether or not a geologic repository or other particular type of facility for handling spent fuel was in operation.

Following the Indiana Michigan decision, a number of cases were brought against DOE in 1997 because of the Department s failure to take any action to prepare for receipt of utility spent nuclear fuel in accordance with its obligation. In all, four cases were brought by more than 100 utilities, states, and state agencies seeking, among other things, a directive from the D.C. Circuit to DOE to commence taking spent fuel no later than January, 1998, and an order allowing utilities to escrow fees being paid to the Department until it begins to perform. These cases are still pending.

Legislative action was also pursued in parallel with litigation. In particular, Congress considered comprehensive legislation to significantly modify the Nuclear Waste Policy Act of 1982 to refocus the waste program away from repository disposal, and more toward centralized, interim storage. On April 15, 1997 the Senate approved high-level waste legislation in the form of S. 104. An important part of the legislation was a provision directing DOE to construct and operate a temporary surface storage facility for spent fuel near the proposed Yucca Mountain repository site in Nevada, or at some other location selected by the President.

In the House of Representatives, H.R. 1270 legislation similar to that passed in the Senate was cleared for floor action by the House Commerce Committee on September 18, 1997 and passed on October 30. Prospects for legislation, however, continue to be overshadowed by the threat of a Presidential veto. This threat is especially significant in view of the fact that the vote in the Senate on S. 104 was insufficient to override a veto.

• Drafting and advocating specific legislative provisions and recommendations.
• Developing licensing strategies to address interim storage and expedited repository site characterization.
• Litigating to establish and enforce DOE s legal and financial obligations under the NWPA.
• Advising and counseling on DOE s implementing provisions for site recommendation under NEPA.
• Advising on legal and regulatory aspects of privately funded, commercial interim storage proposals.
• Participating in rulemaking and related activities associated with EPA s high-level radioactive waste disposal standards.