EXPERIENCE

RADIOACTIVE AND HAZARDOUS WASTE DISPOSAL,
WASTE LITIGATION AND DECOMMISSIONING

State of Nevada / Proposed Yucca Mountain Nuclear Waste Repository

Egan, Fitzpatrick, Malsch & Lawrence is presently lead counsel in the multi-forum, multi-party, multi-action series of lawsuits brought by the State of Nevada challenging the legal, scientific, environmental, and constitutional adequacy of the federal government’s Yucca Mountain national nuclear waste repository. The firm's attorneys have been appointed Special Deputy Attorney General by Nevada for this purpose. The firm also represents the City of Las Vegas and Clark County, Nevada, in several of these actions. Egan, Fitzpatrick, Malsch & Lawrence is also lead nuclear regulatory counsel for Nevada in NRC license proceedings for the repository which began in 2008 – the largest NRC proceeding in the agency’s history, and the first all-electronic litigation in America, with a docket of several million documents.

 

Nevada v. NRC

Egan, Fitzpatrick, Malsch & Lawrence challenged in the U.S. Court of Appeals for the D.C.circuit the legality of the NRC’s Yucca Mountain licensing rule, 10 C.F.R. Part 63, and successfully vacated that rule in July 2004. The firm also separately challenged NRC's so-called 'Waste Confidence Rule' on grounds that a national repository could not be built by 2025.

 

Nevada v. EPA

Egan, Fitzpatrick, Malsch & Lawrence was joint counsel in this D.C. Circuit case challenging the Environmental Protection Agency’s radiological safety standards for Yucca Mountain licensing. In a stunning victory for Nevada, the court vacated EPA's Yucca rule in July 2004. The firm also challenged the EPA’s and NRC’s Yucca Mountain licensing rules after the remand from the D.C. Circuit. Those challenges, brought in the D.C. Circuit, and another challenge to DOE’s supplemental environmental impact statement, brought in the 9th Circuit, are pending.

 

NRC Yucca Mountain License Proceeding

Egan, Fitzpatrick, Malsch & Lawrence is lead counsel for Nevada in the contested licensing proceedings before the NRC on the application for a construction authorization for the proposed Yucca Mountain repository. The proceeding was delayed until 2008 after Nevada successfully challenged a DOE document discovery certification, and later, after the proceeding began, the firm succeeded in securing the admission of the largest number of contentions in the history of the NRC.

 

Non-Proliferation Trust

The firm worked for two years as outside general counsel to the Non-Proliferation Trust, Inc., a U.S. trust formed by former FBI/CIA Director William H. Webster, former Nuclear Navy director Admiral Bruce DeMars, former Marine Corps Commandant P. X. Kelley, former Chief of Staff to Vice President George H.W. Bush Admiral Daniel Murphy, and NRDC’s nuclear program director Dr. Thomas Cochran. The purpose of the trust was to foster global non-proliferation by raising $10 billion for Russia from South Korea, Taiwan, and other nations sending their spent nuclear fuel to Russia for storage or disposal. The program was designed to offer monies in trust for disposition of excess fissile materials, defense conversion of Russia’s closed nuclear cities, humanitarian aid, and environmental cleanup of Russia’s contaminated nuclear sites. For the period 1999-2001, Mr. Egan was elected President of NPT International, Ltd., which was intended to serve as the project’s nuclear operating company in Russia. This project involved extensive interaction with the Russian, U.S., and Taiwan governments, extensive negotiations and contract development with the Russian Ministry of Atomic Energy, and intensive dialog with the arms control community and Congressional leaders in non-proliferation.

 

Foreign Research Reactor Spent Fuel Disposition

In one of the highest profile matters in the history of nuclear energy, the firm undertook representation of 18 foreign research reactor operators and their governments (12 nations total) to secure the return to the United States of over 22,000 U.S.-origin bomb-grade spent fuel elements for storage at DOE’s Savannah River Site pending ultimate disposition. These countries included Denmark, Sweden, Germany, Belgium, Japan, Australia, Austria, Norway, Taiwan, Italy, Greece, and Canada.

Between 1993 and 1997, the firm worked with Edlow International Company to assemble an international coalition of governments, reactor operators, and arms control advocates, lobby the Congress, U.S. environmental groups, Euratom, DOE, the State Department, and NRC, and finally secure official U.S. government approval to re-establish DOE’s previously terminated Off-Site Fuels Policy for return of the wastes. The project involved preparation of an extensive environmental assessment, the rare declaration of a NEPA “emergency” by the government, followed by a multi-volume final environmental impact statement.

The firm also developed and negotiated numerous contracts with DOE for the return of the material, and, when these efforts were enjoined in a TRO and preliminary injunction by the Governor of South Carolina, twice successfully defended the return action through the Fourth Circuit Court of Appeals and a certiorari petition to the U.S. Supreme Court. For the TRO action, the firm secured the litigation authorization of six ambassadors, developed three expert witnesses, and prepared its written case in a single two-day weekend. This project involved testimony by Secretaries of State Eagleburger and Christopher, as well as testimony by key nuclear scientists and arms control experts. The firm also managed a large media-relations effort in connection with the shipments and was lead attorney in oral presentations in both District Court and Circuit Court.

 

Waste Control Specialists’ West Texas Disposal Site

The firm was lead attorney in the early stages of permitting of the Waste Control Specialists (WCS) radioactive/hazardous waste disposal site in Andrews Country, Texas. This entailed frequent negotiations with procurers of waste disposal services (including private utilities, other waste sites, the NRC, the Army Corps of Engineers, and the Department of Energy) concerning disposal and storage safety evaluations, waste classification, treatment of decommissioning and cleanup wastes, and hazardous and FUSRAP wastes.

The firm represented Waste Control Specialists in an action against Envirocare of Utah, a competing radioactive waste disposal site operator, alleging national monopolization of the low-level and mixed waste disposal enterprises and tortious interference in Waste Control Specialists’ permit activities. This large, complex, four-year case involved proceedings in Texas state court, Federal District Court in West Texas and Southern Ohio, and the Fifth Circuit Court of Appeals. Mr. Egan was lead attorney in the WCS representation up through trial in Texas state court, which involved over 30 experts, 63 depositions, private investigators, national media coverage, and tens of thousands of pages of documents. The case was settled just prior to trial in late 2000.

The firm was also lead attorney for Waste Control Specialists in Federal District Court in the Northern District of Texas, and later the Fifth Circuit Court of Appeals, involving the obligation of DOE to self-regulate its waste disposal activities, and its jurisdiction to enforce license restrictions on agreement state entities with whom it does waste disposal business. In this action, the firm secured broad injunctive relief against DOE’s low-level waste disposal contracting activities for nearly 11 months.

 

State of Utah

The firm represented the State of Utah as special counsel in a Nuclear Regulatory Commission licensing proceeding concerning a large independent spent fuel storage facility planned for development by a group of utilities on the Ghoshute Indian reservation in Utah. The firm served as counsel in evaluating the hazards posed by aircraft, as well as the nuclear criticality risk associated with aircraft accidents.

 

Nation of Italy Spent Fuel Litigation

The firm represented the nation of Italy in federal court litigation alleging breach of contract and violations of the Atomic Energy Act and other laws by the Energy Department for refusing to take back 66 mixed oxide, weapons-grade spent fuel elements that the U.S. had shipped to Italy from the Elk River nuclear plant in Minnesota in the 1970’s for reprocessing.

 

American Nuclear Corporation

Mr. Egan worked for Nukem Inc. and its Wyoming subsidiary, American Nuclear Corp., in efforts to secure permission from NRC to dispose of Naturally Occurring Radioactive Material (NORM) waste in the company’s Section 11(e)(2) uranium mill tailings disposal site.

 

State of New Mexico

The firm represented the State of New Mexico in NRC proceedings concerning waste disposal issues associated with the Louisiana Enrichment Services proposed new billion-dollar uranium enrichment facility in eastern New Mexico.

 

Nevada Test Site

The firm successfully represented the State of Nevada in efforts to ensure that wastes sent to the federal government's NTS disposal facility comply with the state's laws prohibiting mixed and hazardous wastes from being disposed of there.