RADIOACTIVE AND HAZARDOUS WASTE DISPOSAL,
WASTE LITIGATION AND DECOMMISSIONING

State of Nevada / Yucca Mountain Nuclear Waste Repository

Egan, Fitzpatrick & Malsch 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. Mr. Egan was 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 is also lead nuclear regulatory counsel for Nevada in NRC license proceedings for the repository which will begin in 2007 – 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. DOE, Secretary Abraham, and President Bush

Egan, Fitzpatrick & Malsch challenged DOE, Energy Secretary Spencer Abraham, and President George W. Bush in a multifaceted case in the D.C. Court of Appeals. This case, which consolidated several cases filed by Nevada, the Natural Resources Defense Council, and the Nuclear Energy Institute, challenged the Energy Department’s site suitability guidelines for Yucca Mountain, the Secretary’s and the President’s site recommendations, the Energy Department’s Final Environmental Impact Statement for Yucca Mountain, and failures by the Energy Department to take actions required by the Nuclear Waste Policy Act (NWPA).

Nevada v. NRC

Egan, Fitzpatrick & Malsch challenged in the D.C. Court of Appeals 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 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. In 2007, the firm expects to challenge EPA's new Yucca Mountain radiation protection rule on grounds that it fails to adhere to the recommendations of the National Academy of Sciences and to the D.C. Circuit's legal mandates.

Nevada v. United States

Egan, Fitzpatrick & Malsch was joint counsel with Cooper and Kirk in a major constitutional challenge to the establishment of the national nuclear waste repository in Nevada on Tenth Amendment, Equal Protection, and other constitutional grounds.

NRC Yucca Mountain License Proceeding

Egan, Fitzpatrick & Malsch is lead counsel in what will be the largest, most complex administrative agency license proceeding ever held in the United States, now scheduled to begin in 2007. This formal proceeding is projected to involve three simultaneous administrative law panels in three different locations, over 12 million documents, and will constitute the nation’s first all-electronic proceeding, with extensive internet usage by all parties. The proceeding is projected to last at least four years. In August 2004, in the Energy Department's first-ever appearance before the NRC, the firm convinced a three-judge licensing board to strike the government's initial certification of compliance with pre-licensing rules, forcing a three-year delay in the project.

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 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 Army Corps of Engineers, and DOE) concerning waste classification, bidding, treatment of decommissioning and cleanup wastes, and hazardous and FUSRAP wastes. Egan, Fitzpatrick & Malsch secured NRC and Texas permission for WCS to dispose of transuranic waste and “exempt” low-level waste, and worked on issues concerning NORM, 11(e)(2) waste, spent fuel storage, and Greater-than-Class-C waste disposal. Egan, Fitzpatrick & Malsch is currently representing WCS in the permitting of its Andrews County site for low-level and mixed radioactive waste disposal.

The firm represented Waste Control Specialists in a billion-dollar antitrust/tortious interference action against Envirocare of Utah, a radioactive waste disposal site, alleging national monopolization of the low-level and mixed waste disposal enterprises. This large, complex, four-year case involved proceedings in Texas state court, Federal District Court in West Texas and Southern Ohio, the Fifth Circuit Court of Appeals, and a certiorari petition to the U.S. Supreme Court. 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. Our client prevailed in the Fifth Circuit and in the Supreme Court with its Op-Cert petition, and 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.