OTHER NRC EXPERIENCE

License Transfer Proceedings/Labor Relations

In 2000, The firm represented the Nuclear Generation Employees Association, consisting of 400 engineers of the New York Power Authority, in connection with the Authority’s sale of the Indian Point 3 and FitzPatrick nuclear plants to Entergy. The firm succeeded in getting NRC to grant intervention status to the group in transaction hearings, the first time such status has been granted to a labor or professional group.

Advanced Reactor Design Certification

The firm was lead outside counsel for ABB-Combustion Engineering in the design certification proceeding at NRC for that company’s System 80+ 1200-megawatt advanced nuclear power plant, a proceeding that spanned four years and involved, for the first time, formal rulemaking hearings. The firm worked closely with the Nuclear Energy Institute, General Electric, and Westinghouse in formulating broad policy conceptions for new reactors, and in developing so-called ITAACs (inspection, test, analysis and acceptance criteria) for verification that the as-built plant conforms with the certified design.

While at NRC, Mr. Malsch was lead counsel for the agency in the ABB and General Electric design certification proceedings for System 80+ and the ABWR, respectively, and he originated the concept of design certification as embodied in 10 C.F.R. Part 52. He also participated in the Westinghouse AP-600 design certification proceedings.

Foreign Ownership of U.S. Nuclear Assets

The firm has represented PowerGen, a large British generating company, in numerous actual and proposed license transfers and acquisitions of nuclear generating assets in the U.S. The firm secured major concessions from NRC for PowerGen under the foreign ownership provisions of the Atomic Energy Act. (A comprehensive legal analysis for such transactions is offered by Mr. Malsch in “The Purchase of U.S. Nuclear Power Plants by Foreign Entities, Energy Law Journal, Vol. 20, No. 2, 1999.)

Special NRC Proceedings and Rulemakings

While at NRC, Mr. Malsch served as lead counsel in a licensing proceedings for a commercial spent nuclear fuel reprocessing facility (the now-defunct Barnwell Plant) and in proceedings concerning the Clinch River Breeder Reactor and the environmental impacts of the mixed-oxide fuel cycle.

Mr. Malsch played the principal role in drafting amended NRC rules of practice (Part 2), rules on nuclear waste management (Parts 60 and 61), rules on nuclear proliferation (Part 110), and changes in substantive and procedural rules for nuclear power reactor licensing (Parts 50, 52 and 100). Mr. Malsch formulated both the legal and policy bases for NRC’s reactor backfit rule and originated the concepts of early site permits and reactor design certifications.

Mr. Malsch was responsible for drafting every significant Commission-level adjudicatory decision at NRC during the period 1980 to 1991. These included decisions authorizing the licensing of Diablo Canyon, Shoreham, and Seabrook, and the restart of Three Mile Island Unit 1. His decisions spanned the entire nuclear energy law field, including procedural rights of intervenors, relationship between rules and licensing, scope of antitrust review, emergency planning, high-level waste disposal, financial qualifications, utility restructuring, and enforcement. He also served as NRC’s first Inspector General.

In the several years before joining the private sector, Mr. Malsch focused on key issues presenting unique legal and policy challenges. He drafted the Memorandum of Understanding between the NRC and the U.S. Environmental Protection Agency, played the lead role in eliminating duplicate NRC and EPA regulation of air emissions of radionuclides and played a leading role in drafting the NRC rules on nuclear power plant license renewal and decommissioning.

Mr. Malsch also served on NRC Senior Management Committees responsible for resolving issues associated with implementation of the plant license renewal rule, and use of probabilistic risk assessments in risk-informed regulation of nuclear reactors, and the Price Anderson Act. He originated the legislative concept of certification for DOE’s two gaseous diffusion plants in Ohio and Kentucky.

While at NRC, Mr. Malsch worked in concert with the NRC Solicitor in the successful defense of each Commission decision in the U.S. Courts of Appeals during the period 1980 to 1996, and he himself argued NRC’s cases in the D.C. Circuit and the Third Circuit. He assisted the Solicitor and U.S. Solicitor General in successfully defending the Government’s position before the U.S. Supreme court in the watershed cases of Metropolitan Edison Co. v. People Against Nuclear Energy (restart of Three Mile Island) and Florida Power & Light Co. v. Lorion (jurisdiction under the Atomic Energy Act).