Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P32 ppsx

early 2000s, most states use this model law as a basis for their own notary public statutes. These laws vary from state to state, and the amount of power that a state gives to notaries can depend on its history. For example, Louisiana was a French possession and used a civil code rather than a COMMON LAW. It gives its notaries broad powers—almost equal to those of a JUSTICE OF THE PEACE . In Louisiana notaries’ powers include making “inventories, appraisements, and parti- tions; all contracts and instruments of writing; [and holding] family meetings and meetings of creditors ” (La. Rev. Stat. Ann. § 35:2 [1996]). California also gives notaries additional powers, allowing them to “demand acceptance and payment of foreign and inland bills of exchange, or promissory notes, to protest them for nonacceptance and nonpayment” (Cal. Gov’t. Code § 8205 [West 1997]). In some cases the notary respo nsible for a transaction has an invalid commission because of a technicality. If the notary already witnessed and completed the transaction before becoming aware of the problem, the transaction is still considered valid. Notaries public have two main duties that remain consistent from state to state. Perhaps the most important duty of a notary public is attesting to signatures on documents. This duty is important because it aids in minimizing fraud; signature attestation must be done with the notary and the signatory in a face-to-face setting. The process of notarizing a signature is simple. The person who wants his or her signature notarized must present sufficient evidence to prove his or her identity and then sign the necessary document with the notary as a witness to the signing. The notary completes the process by stamping or sealing, dating, and signing the document. This face-to-face procedure helps ensure the authenticity of the signature. A notary public may also administer oaths in depositions or other situations. Even though this type of oath may not take place in court, the witness can still be held accountable and be punished for perjury. In Ohio a notary can also hold an affian t in CONTEMPT if he or she is a reluctant witness. In the U.S. Supreme Court case of Bevan v. Krieger, 289 U.S. 459, 53 S. Ct. 661, 77 L. Ed. 1316 (1933), a notary public held a witness in contempt because he refused to comply with the requirements of the subpoena he was served. The court ruled that the notary was acting within his powers when he held the witness in contempt. To become a notary, a candidate must complete several steps. A candidate must fill out an application and submit it to the appropriate government agency, usually the respective state’s department of the secretary of state or the U.S. DEPARTMENT OF STATE. As part of the application procedure, the candidate must also take an oath of office and submit a bond. The purpose of the bond is to offer a small amount of monetary insurance in case the notary is sued. On average, notarial bonds are less than $5,000. If a notary is sued for more money than the amount of the bond, the notary is still personally liable for the difference between the bond and the sum awarded to the plaintiff. Once an application is approved and the notary is commissioned, the notary must register in the county in which he or she resides and pay a registration fee. The commission itself has a time limit, which can range from two to ten years, with an average limit of four years. To renew the commission, the notary must repeat the application process. Most states require that a notary be at least 18 years old and be able to read and write English. However, the latter requirement may change in the future because of the increasing number of transactions that take place in languages other than English. Some states require potential notaries to pass an exam as part of the application process. Others may require a notary to keep a detaile d journal of the transactions he or she officiates. Until 1984 many states required that a notary be a U.S. citizen or a resident of the state in which he or she would serve as a notary, or both. However, in Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984), the U.S. Supreme Court ruled that requiring a notary to be a U.S. citizen was unconstitutional under the Fourteenth Amendment’s EQUAL PROTECTION CLAUSE . Therefore, even though the plaintiff in the case was actually a Mexican native and longtime resident alien, it was unconstitu- tional to deny him a notarial commission simply because he was not a U.S. citizen. Despite this ruling many states have kept the U.S. citizenship requirement in their statutes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 298 NOTARY PUBLIC Another challenge to the procedure for becoming a notary occurred in the case of Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). In this case, an atheist objected to Maryland’s notary public oath, which required him to acknowledge a belief in God. When his notary commission was denied, he sued. The case went to the U.S. Supreme Court, which ruled that, under both the Mary- land Constitution and the U.S. Constitution, it was “repugnant” for an oath to require a belief in God. Notaries can only be held liable for actions they take while performing the notary function. For example, although notaries are responsible for attesting to the validity of a signature, they are not responsible for the validity of the docu- ment. It is not considered MALPRACTICE for a notary to attest to a signature on a document that he or she knows is invalid. A notary must “act as a reasonably prude nt notary would act in the same situation.” In an action against a notary, the BURDEN OF PROOF is on the plaintiff to show that the notary acted negligently. If the plaintiff meets this burden, the notary can be held personally liable for damages to all parties involved, including third parties. FURTHER READINGS Anderson, John C., and Michael L. Closen. 1998. “A Proposed Code of Ethics for Employers and Customers of Notaries: A Companion to the Notary Public Code of Professional Responsibility.” John Marshall Law Review 32 (summer). Closen, Michael L., and G. Grant Dixon III. 1992. “Notaries Public from the Time of the Roman Empire to the U.S. Today and Tomorrow.” North Dakota Law Review 68. Kussmaul, Wes. 2001. The Future Needs You: The Notary Public in the Digital Age. Waltham, MA: PKI. Rothman, Raymond C. 2001. Notary Public: Practices and Glossary. Chatsworth, CA: National Notary Association. Van Alstyne, Peter J. 1998. Notary Law, Procedures & Ethics: A Complete Reference on Notarial Laws and Procedures in America. Salt Lake City: Notary Law Institute. CROSS REFERENCES Fraud; Signature. NOTE To take notice of. A written negotiable instrument that contains the promise of the note’s maker to pay a certain sum of money. A note is a two-party instrument, in that the maker prom ises to pay another party a certain sum. Thus, a note is sometimes called a“promissory note” to emphasize the promise of the maker. Bills and notes are commonly called “commercial paper” and are governed by the provisions of Article 3 of the UNIFORM COMMERCIAL CODE . NOTES OF DECISIONS Annotations; concise summaries and references to the printed decisions of cases that are designed to explain particular RULES OF LAW or applicable sections of statutes. NOTICE The term, notice, refers to information, knowledge of certain facts or of a particular state of affairs. The term also refers to the formal receip t of papers that provide specific information. There are various types of notice, each of which has different results. In general, notice deals with information that a party knows or should have known. In this context, notice is an essential element of DUE PROCESS. Notice can also refer to commonly known facts that a court or ADMINISTRATIVE AGENCY may take into evidence. Actual notice is information given to the party directly. The two kinds of actual notice are express notice and implied notice. An individual is deemed to have been given express notice when he or she actually hears it or reads it. Implied notice is deduced or inferred from the circum- stances rather than from direct or explicit words. Courts will treat such information as though actual notice had been given. Constructive notice is information that a court deems that an individual should have known. According to a RULE OF LAW that applies in such cases, the court will presume that a person knows the information because she could have been informed if proper diligence had been exercised. Constru ctive notice can be based on a legal relationship as well. For example, in the law governing partnerships, each partner is deemed to have knowledge of all the partnership business. If one partner engages in dishonest transactions, the other partners are presumed to know, regardless of whether they had actual knowledge of the transaction. The term legal notice is sometimes used interchange- ably with constructive notice. In certain cases involving the purchase of real property, an individual is charged with inquiry notice. When an individual wishes to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NOTICE 299 A sample notice of motion or objection. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Form 20A. Notice of Motion or Objection [Caption as in Form 16A.] NOTICE OF [MOTION TO ] [OBJECTION TO ] ______________________________________________________has filed papers with the court to [relief sought in motion or objection]. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one.) If you do not want the court to [relief sought in motion or objection], or if you want the court to consider your views on the [motion] [objection], then on or before _______________________________________________________ , you or your attorney must: [File with the court a written request for a hearing {or, if the court requires a written response, an answer, explaining your position} at: ___________________________________________________________________________________ If you mail your {request}{response} to the court for filing, you must mail it early enough so the court will receive it on or before the date stated above. You must also mail a copy to: ___________________________________________________________________________________ ___________________________________________________________________________________ [Attend the hearing scheduled to be held on ____________________________________ , _______ , at ________________a.m./p.m. in Courtroom _____________________ , United States Bankruptcy Court, __________________________________________________________________________________.] [Other steps required to oppose a motion or objection under local rule or court order.] If you or your attorney do not take these steps, the court may decide that you do not oppos e the relief sought in the motion or objection and may enter an order granting that relief. Date: _______________________________________________ Signature: __________________________________________ Name: _____________________________________________ Address: ___________________________________________ ___________________________________________________ Notice of Motion (date) {address of the bankruptcy clerk’s office} {names and addresses of others to be served}] {movant’s attorney’s name and address} (date) (year) {address} Form B20A (Official Form 20A) (9/97) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 300 NOTICE purchase land, he ordinarily has the duty under the recording acts to check the title to the property to determine that the land is not subject to any encumbrances, which are claims, liens, mortgages, leases, EASEMENTS or right of ways, or unpaid taxes that have been lodged against the real property. In some situations, however, the individual must make a reasonable investigation outside the records, such as in cases involving recorded but defective documents. This type of notice is known as inquiry notice. Some states have notice recording statutes that govern the RECORDING OF LAND TITLES. Whereas inquiry notice deals with looking closely at documents that have been recorded, notice recording statutes state that an unre- corded conveyance of prop erty is invalid against the title bought by a subsequent bona fide purchaser for value and without notice. This means that if John purchases a piece of land on a contract for deed from Tom and does not record the contract for deed, and if Tom resells the land to Jill, who has no notice of the prior sale, then Jill as a bona fide purchaser will prevail, and John’s conveyance will be invalid. The concept of notice is critical to the integrity of LEGAL PROCEEDINGS. Due process requires that legal action cannot be taken against anyone unless the requirements of notice and an opportunity to be heard are observed. In fact, notice has been a core principle in the concept of due process since the MAGNA CARTA was issued in 1215 . Legal proceedings are initiated by providing notice to the individual affected. If an individual is accused of a crime, he has a right to be notified of the charges. In addition, formal papers must be prepared to give the accused notice of the charges. An individual who is being sued in a CIVIL ACTION must be provided with notice of the nature of the suit. State statutes prescribe the method of providing this type of notice. Courts are usually strict in requiring compliance with these laws, and ordinarily a PLAINTIFF must put this information into a complaint that must be served upon the DEFENDANT in some legally adequate manner. The plaintiff may personally serve the complaint to the defendant. When that is not prac tical, the papers may be served through the mail. In some cases a court may allow, or require, service by posting or attaching the papers to the defendant’s last known address or to a public place where the defendant is likely to see them. Typically, however, notice is given by publication of the papers in a local news- paper. When the defendant is not personally served or is formally served in another state, the method of service is called substituted service. Notice is also critical when suing a state or local government. Many states and municipali- ties have notice of claim provisions in their statutes and ordinances which state that, before a lawsuit is started, a notice of claim must be filed within a reasonable time, usually three to six months after the injury occurs. The notice must contain the date of injury, how it occurred, and other facts that establish that the prospec- tive plaintiff has a viable CAUSE OF ACTION against the government. Failure to file a no tice of claim within the prescribed time period prevents a plaintiff from filing a lawsuit unless exceptions to this requirement are provided by statute or ordinance. Notice is also an important requirement in ending legal relationships. For example, a notice to quit is a written notification given either by the tenant to the landlord, or vice versa, indicat- ing that either the tenant intends to surrender possession of the premises on a certain day or that the landlord intends to regain possession of the premises on a certain day. Many kinds of contracts require that similar notice be given to either renew or end the contractual relationship. Notice may also refer to commonly known facts that a court or administrative agency may take into evidence during a trial or hearing. JUDICIAL NOTICE is a doctrine of evidence that allows a court to recognize and accept the existence of a commonly known fact without the need to establish its existence by the admission of evidence. Courts take judicial notice of histori cal events; federal, state, and international laws; business customs; and other facts that are not subject to reasonable dispute. Administrative procee dings use the term official notice to describe a doctrine similar to judicial notice. A presiding administrative offi- cer recognizes as evidence, without proof, certain kinds of facts that are not subject to reasonable dispute. Administrative agencies, unlike courts, have an explicit legislative function as well as an adjudicative function: They make rules. In rule making, agencies have wider discretion in taking official notice of law and policy, labeled LEGISLATIVE FACTS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NOTICE 301 FURTHER READINGS Clermont, Kevin M. 2009. Principles of Civil Procedure, 2d ed. St. Paul, Minn.: Thomson West. Weaver, Russell L. 2009. Inside Constitutional Law: What Matters and Why. New York: Aspen. CROSS REFERENCES Due Process of Law; Legislative Facts; Personal Service; Recording of Land Titles; Registration of Land Titles; Service of Process; Title Search. NOVATION The substitution of a new contract for an old one. The new agreement extinguishes the rights and obligations that were in effect under the old agreement. A no vation ordinarily arises when a new individual assumes the obligation to pay a debt that was incurred by the original party to the contract. It is distinguishable from the situation that occurs when another individual makes a guarantee that a debtor will pay what he or she owes to a creditor. In the case of a novation, the original debtor is totally released from the obligation, which is transferred to someone else. The nature of the transaction is dependent upon the agreement between the parties. A novation also takes place when the original parties continue their obligation to one another, but a new agreement is substituted for the old one. The similarity between a novation and an “accord and satisfaction,” or even their identity in some instances, is apparent and has been pointed out by the courts. “Novation” is frequently applied to transactions in which a substitution of obligations is effected as a result of an ACCORD AND SATISFACTION. Accordingly, it may be said that novation is a species of accord and satisfaction. NRA See NATIONAL RIFLE ASSOCIATION. NTP V. RESEARCH IN MOTION, LTD. (RIM) See PATENT TROLL. NUCLEAR NONPROLIFERATION TREATY The Nuclear Nonproliferation Treaty (NPT), formally called the Treaty on the Nonproliferation of Nuclear Weapons, is the cornerstone of the international effort to halt the proliferation, or spread, of nuclear weapons. The NPT was first signed in 1968 by three nuclear powers— the United States, the Soviet Union, and the United Kingdom—and by nearly 100 states without nuclear weapons. It came into force in 1970, and as of 2009 it had been signed by 189 countries. Only four states are not parties to the treaty: India, Israel, North Korea, and Pakistan. The Nuclear Nonproliferation Treaty (NPT) distinguishes between nuclear-weapon states and non-nuclear-weapon states. It identifies five nuclear-weapon states: China, France, the Soviet Union, the United Kingdom, and the United States. Article II forbids non-nuc lear-weapon states that are parties to the treaty to manufacture or otherwise acquire nuclear weapons or nucle ar explosive devices. Article III concerns controls and inspectio ns that are intended to prevent the diversion of nuclear energy from peaceful uses to nuclear weapons or explosive devices. These safeguards are applied only to non- nuclear-weapon states and only to peacefu l nuclear activities. The treaty contains no provi- sions for verification of the efforts by nuclear- weapon states to prevent the proliferation of nuclear weapons. Under the provisions of Article IV, all parties to the treaty, including non-nuclear-weapon states, may conduct nuclear research and development for peaceful purposes. In return for agreeing not to develop nuclear weapons, non-nuclear-weapon states receive two pro- mises from nuclear-weapon states: the latter will help them to develop nuclear technology for peaceful purposes (Art. IV), and the latter will “pursue negotiations in GOOD FAITH on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” (Art. VI). Since 1975 NPT signatory countries have held a review conference every five years to discuss treaty compliance and enforcement. India, North Korea, and Pakistan openly admit they have nuclear weapons. It is believed that Israel possesses nuclear arms, but it refuses to confirm that it does. North Korea has caused the most concern, as it has threatened to employ them if attacked and it has worked on developing long-range missiles to deliver GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 302 NOVATION nuclear payloads. It conducted what it called a successful nuclear test in 2006. Despite numer- ous diplomatic efforts, as of 2009, North Korea had refused to end its nuclear weapons program. Though Iran is a signatory of the treaty, it began a uranium enrichment program in the early 2000s. It reportedly suspended its nuclear weapons program from 2003 to mid-2007 but Novation NOVATION AGREEMENT The ABC Corporation (Transferor), a corporation duly organized and existing under the laws of __________ [insert State] with its principal office in ____________ [insert city]; the XYZ Corporation (Transferee), [if appropriate add “formerly known as the EFG Corporation”] a corporation duly organized and existing under the laws of _________ [insert State] with its principal office in ____________ [insert city]; and the United States of America (Government) enter into this Agreement as of ____________ [insert the date transfer of assets became effective under applicable State law]. (a) The parties agree to the following facts: (1) The Government, represented by various Contracting Officers of the ______________ [insert name(s) of agency(ies)], has entered into certain contracts with the Transferor, namely: ____________ [insert contract or purchase order identifications]; [or delete “namely” and insert “as shown in the attached list marked ‘Exhibit A’ and incorporated in this Agreement by reference.”]. The term “the contracts,” as used in this Agreement, means the above contracts and purchase orders and all other contracts and purchase orders, including all modifications, made between the Government and the Transferor before the effective date of this Agreement (whether or not performance and payment have been completed and releases executed if the Government or the Transferor has any remaining rights, duties, or obligations under these contracts and purchase orders). Included in the term “the contracts” are also all modifications made under the terms and conditions of these contracts and purchase orders between the Government and the Transferee, on or after the effective date of this Agreement. (2) As of ____________, 20___, the Transferor has transferred to the Transferee all the assets of the Transferor by virtue of a _______________ [insert term descriptive of the legal transaction involved] between the Transferor and the Transferee. (3) The Transferee has acquired all the assets of the Transferor by virtue of the above transfer. (4) The Transferee has assumed all obligations and liabilities of the Transferor under the contracts by virtue of the above transfer. (5) The Transferee is in a position to fully perform all obligations that may exist under the contracts. (6) It is consistent with the Government’s interest to recognize the Transferee as the successor party to the contracts. (7) Evidence of the above transfer has been filed with the Government. [When a change of name is also involved; e.g., a prior or concurrent change of the Transferee’s name, an appropriate statement shall be inserted (see example in paragraph (8) of this Agreement)]. (8) A certificate dated _________, 20___, signed by the Secretary of State of ___________ [insert State], to the effect that the corporate name of EFG Corporation was changed to XYZ Corporation on _____________, 20__, has been filed with the Government. (b) In consideration of these facts, the parties agree that by this Agreement— (1) The Transferor confirms the transfer to the Transferee, and waives any claims and rights against the Government that it now has or may have in the future in connection with the contracts. (2) The Transferee agrees to be bound by and to perform each contract in accordance with the conditions contained in the contracts. The Transferee also assumes all obligations and liabilities of, and all claims against, the Transferor under the contracts as if the Transferee were the original party to the contracts. (3) The Transferee ratifies all previous actions taken by the Transferor with respect to the contracts, with the same force and effect as if the action had been taken by the Transferee. (4) The Government recognizes the Transferee as the Transferor’s successor in interest in and to the contracts. The Transferee by this Agreement becomes entitled to all rights, titles, and interests of the Transferor in and to the contracts as if the Transferee were the original party to the contracts. Following the effective date of this Agreement, the term “Contractor,” as used in the contracts, shall refer to the Transferee. (5) Except as expressly provided in this Agreement, nothing in it shall be construed as a waiver of any rights of the Government against the Transferor. (6) All payments and reimbursements previously made by the Government to the Transferor, and all other previous actions taken by the Government under the contracts, shall be considered to have discharged those parts of the Government’s obligations under the contracts. All payments and reimbursements made by the Government after the date of this Agreement in the name of or to the Transferor shall have the same force and effect as if made to the Transferee, and shall constitute a complete discharge of the Government’s obligations under the contracts, to the extent of the amounts paid or reimbursed. (7) The Transferor and the Transferee agree that the Government is not obligated to pay or reimburse either of them for, or otherwise give effect to, any costs, taxes, or other expenses, or any related increases, directly or indirectly arising out of or resulting from the transfer or this Agreement, other than those that the Government in the absence of this transfer or Agreement would have been obligated to pay or reimburse under the terms of the contracts. [continued] A sample novation agreement. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NUCLEAR NONPROLIFERATION TREATY 303 later reactivated it. As of 2009 the United States and Israel had expressed grave concerns about the possibility of Iran possessing nuclear arms. Economic sanctions by the United States and other countries have yet to dissuade Iran to abandon its weapons program. FURTHER READINGS Cirincione, Joseph. 2008. Bomb Scare: The History and Future of Nuclear Weapons. New York: Columbia U niv. Press. Dekker, Guido den. 2001. The Law of Arms Control: International Supervision and Enforcement. Norwell, Mass.: Kluwer Law International. Moxley, Charles J. 2000. Nuclear Weapons and International Law in the Post Cold War World. Lanham, Md.: Austin & Winfield. Reed, Thomas, and Danny Stillman. 2009. The Nuclear Express: A Political History of the Bomb and Its Proliferation. New York: Zenith Press. U.S. State Department. 1970. United States Treaties and Other International Agreements, Vol. 21, part 1, pp. 483–494. United Nations Office for Disarmament Affairs. Available online at http://www.un.org/disarmament/index.shtml (accessed December 27, 2009). CROSS REFERENCE Arms Control and Disarmament. NUCLEAR POWER A form of energy produced by an atomic reaction, capable of producing an alternative source of electrical power to that supplied by coal, gas, or oil. The dropping of the atom bomb on Hir- oshima, Japan, by the United States in 1945 initiated the atomic age. Nuclear energy immedi- ately became a military weapon of terrifying magnitude. For the physicists who worked on the atom bomb, the promise of nuclear energy was not solely military. They envisioned nuclear power as a safe, clean, cheap, and abundant source of energy that would end society’s dependence on fossil fuels. At the end of WORLD WAR II,leaders called for the peaceful use of nuclear energy. Congress passed the Atomic Energy Act of 1946 (42 U.S.C.A. §§ 2011 et seq.), which shifted nuclear development from military to civilian government control. Very little development of commercial nuclear power occurred from 1946 to 1954 because the 1946 law maintained a federal government monopoly over the control, use, and ownership of nuclear reactors and fuels. Congress amended the Atomic Energy Act in 1954 (68 Stat. 919) to encourage the private commercial development of nuclear power. The act ended the federal government’s mo- nopoly over nonmilitary uses of nuclear energy and allowed private ownership of reactors under licensing procedures established by the Atomic Energy Commission (AEC). Private power companies did not rush to build nuclear power plants because they feared the financial consequences of a nuclear accident. Congress responded by passing the Price-Anderson Act of 1957 (42 U.S.C.A. § 2210), which limited the liability of the nuclear power industry and assured compensation for the public. With the passage of the Price-Anderson Act, power companies began to build nuclear plants. At first, nuclear power was attractive largely because the demand for electricity grew at a steady rate in the 1960s and coal-burning facilities were becoming an environmentally unaccept- able alternative. The high price of oil during the A sample novation agreement (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Novation ABC Corporation, By _______________________________________________ Title ______________________________________________ XYZ Corporation, By _______________________________________________ Title _____________________________________________ (8) The Transferor guarantees payment of all liabilities and the performance of all obligations that the Transferee— (i) Assumes under this Agreement; or (ii) May undertake in the future should these contracts be modified under their terms and conditions. The Transferor waives notice of, and consents to, any such future modifications. (9) The contracts shall remain in full force and effect, except as modified by this Agreement. Each party has executed this Agreement as of the day and year first above written. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 304 NUCLEAR POWER mid-1970s continued to make nuclear power economically desirable and helped keep nuclear energy a prominent part of national energy plans. By the 1990s approximately 110 nuclear plants were operating in the United States, supplying 20 percent of the nation’s electricity. A nuclear reactor produces energy through a chain reaction that splits a uranium nucleus, releasing energy in the form of heat. Fast breeder reactors, which use plutonium as fuel, generate more energy than they expend. Pluto- nium is not a natural element. It must be recycled from the excess uranium produced from a chain reaction. The radioactivity of plutonium is higher and its life is longer than that of any other element. Because of these characteristics, the public became concerned about the safety of its development and use. Until 1969, the AEC did not have a formal process for evaluating the environmental impact of building nuclear power plants. In that year Congress passed the NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (42 U.S.C.A. §§ 4321–4370), which required environmental impact state- ments for all major federal activities. In the 1970s, the temper of nuclear regulation changed. People were no longer complacent about nuclear power safety or convinced by environmental claims made by industry and government. This lack of public trust cente red on the role of the AEC as both a promoter of nuclear technology and a regulator of the nuclear power industry. In 1974, realizing the cross purposes of promotion and safety, Congress passed the Energy Reorganization Act (42 U.S.C.A. §§ 5801– 5879), which created two agencies with different missions. The NUCLEAR REGULATORY COMMISSION (NRC) is an independent agency responsible for safety and licensing. The Energy Research and Development Administration (ERDA), later absorbed into the ENERGY DEPARTMENT, is res- ponsible for promotion and development of nuclear power. This alignment did not completely remove fundamental regulatory conflict for the NRC, because the agency is responsible both for licensing plants and for safety oversight. If the NRC is too vigorous in exercising its safety role, the resulting compliance costs act as a disincen- tive to invest in nuclear plants. A nuclear facility cannot be built without a construction permit issued by the NRC. An environmental impact statement that assesses the effect the facility will have on the environment must also be filed with the ENVIRONMENTAL PROTECTION AGENCY (EPA). Once built, a nuclear plant must operate pursuant to a license from the NRC. A license requires that the facility use the lowest levels of radiation necessary to reasonably and efficiently maintain operations. The NRC also issues licenses for the use of nuclear materials, for transportation of nuclear materials, and for the export and import of nuclear materials, facilities, and components. Nuclear power regulation is highly central- ized in the federal government when nuclear safety and radiological hazards are at issue. States may address the financial capability of power companies to dispose of waste and may define state tort liability for injuries suffered at nuclear facilities. Public confidence in the nuclear power industry suffered a major blow in 1979 when an accident occurred at the Three Mile Island Nuclear Station near Harrisburg, Pennsylvania. No one was hurt during the accident although radioactive gases escaped through the plant’s ventilating syste m. The accident did reveal, however, the nuclear power industry’s lack of emergency preparedness. Following the incident, the NRC increased safety inspections, stepped up enforcement, required the retrofitting of systems to enhance safety, and developed SOURCE: U.S. Ener gy Information Administration, Annual Ener gy Review. Nuclear Power Generation in the United States, 1970 to 2007 120 Number of operable reactors 100 80 60 40 20 0 25 20 15 10 5 0 a Includes Browns Ferry 1, which was shut down in 1985. The unit is defueled but is still fully licensed. In May 2002, the Tennessee Valley Authority announced its intention to have the unit resume operation in 2007. 1970 1975 1980 1985 1990 1995 2000 Electricity generation Reactors Percentage of U.S. electricity generation Year 20 57 71 96 112 a 109 a 2007 104 a 104 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION NUCLEAR POWER 305 emergency preparedness rules. These regula- tions delayed the opening of new nuclear plants during the early 1980s. In 1986, however, the safety of nuclear power again was challenged when a nuclear reactor exploded at Chernobyl in the Ukraine. Radiation 50 times higher than that at Three Mile Island exposed people nearest the reactor, and a cloud of radioactive fallout spread to Western Europe, causing the deaths of more than 30 people. People the world over questioned the logic of using such a volatile energy source. Nuclear power also became less attractive to energy companies in the 1980s. The problem of disposing of nuclear waste became the focal point for the industry. Congress passed the Nuclear Waste Policy Act of 1982 (42 U.S.C.A. §§ 10101- 10226), which directed the DEPARTMENT OF ENERGY to formally begin planning the disposal of nuclear wastes and imposed most of the costs of disposal on the industry. The escalating costs of waste disposal helped bring construction of new nuclear facilities to a stop. The problem of what to do with nuclear waste has proved difficult to solve. Nuclear material is contained in fuel rods. When spent fuel rods and other waste products fill the storage capacity at utility plants, the plants must either expand their storage capacity or find permanent off-site storage. Developing permanent nuclear waste sites is imperative because nuclear waste continues to accumulate. In addition, more than 100 of the nuclear power facilities must be permanently shut down between 2010 and 2025 because their equipment and infrastructure will no longer be safe. This will entail removing most radioactive elements within each plant’snuclear reactor and then razing the entire plant. The federal government has encountered political controversy and public opposition in its attempt to identify potential permanent nuclear waste sites. Since 1986 it has been unsuccessful in finding an acceptable site. Yucca Mountain, Nevada, appeared to be the site for the nuclear waste repository, against the objec- tions of citizens of Nevada and other advocacy groups. In 2002 the Bush Administration began efforts to develop the Yucca Mountain site and both houses of the Congress passed resolutions approving the site by large majorities. The Energy Department began work on the site and by early 2009 it was close to finished. However, the Obama Administration announced that Yucca Mountain was not an acceptable solution for waste storage. As of May 20009 it is unclear whether Congress will object to this change in plans or allow the administration to develop another solution. The commercial prospects for nuclear energy, which have been bleak for decades, may see a turnaround. With the dramatic rise in oil prices during the 2008 presidential election season, candidates appeared to be more open to the idea of constructing nuclear power plants as a way of reducing the amount of carbon released into the atmosphere. However, is unclear whether new construction will take place, in light of the nuclear waste storage issue and the cost of building new plants. In addition, the cost of decommissioning the older nuclear plants in the early twenty-first century will be a huge undertaking. The cost, per plant, will be more than one billion dollars. Utility customers will pay for the costs in higher utility rates, but power companies will have to devote significant amounts of time, energy, and money to complete the process. FURTHER READINGS Hore-Lacy, Ian. 2006. Nuclear Energy in the 21st Century. New York: Academic Press. Vandenbosch, James & Susanne. 2007. Nuclear Waste Stalemate: Political and Scientific Controversies. Salt Lake City, Utah: Univ. of Utah Press. CROSS REFERENCES Energy Department; Environmental Law; Public Utilities; Solid Wastes, Hazardous Substances, and Toxic Pollutants. NUCLEAR REGULATORY COMMISSION The Nuclear Regulatory Commission (NRC) is an independent regulatory agency that oversees the civilian use of NUCLEAR POWER in the United States. It licenses and regulates the uses of nuclear energy to protect public health and safety and the environment. The NRC’s prime responsibility is to ensure that the more than 100 commercial nuclear power plants in the United States conform to its regulations. It also regulates the use of nuclear materials in the diagnosis and treatment of cancer, in sterilizing instruments, in smoke detectors, and in gauges used to detect explosives in luggage at airports. The Nuclear Regulatory Commission (NRC) was established under the provisions of the Energy Reorganization Act of 1974 (42 U.S. C.A. §5801) and Executive Order No. 11,834 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306 NUCLEAR REGULATORY COMMISSION Nuclear Regulatory Commission The Commission Chairman CommissionerCommissioner CommissionerCommissioner Executive Director, Advisory Committee on Reactor Safeguards Chief Administrative Judge (Chairman), Atomic Safety and Licensing Board Panel Director, Office of Commission Appellate Adjudication Director, Office of Public Affairs Director, Office of Congressional Affairs Inspector General Chief Financial Officer Director, Office of International Programs Secretary of the Commission General Counsel Executive Director for Operations Deputy Executive Director for Corporate Management Deputy Executive Director for Materials, Waste, Research, State, Tribal and Compliance Programs Deputy Executive Director for Reactor and Preparedness Programs Director, Office of Nuclear Material Safety and Safeguards Director, Office of Enforcement Director, Office of Federal and State Materials and Environmental Management Programs Director, Office of Nuclear Regulatory Research Director, Office of Investigations Regional Administrator Region III Regional Administrator Region II Regional Administrator Region I Director, Office of Nuclear Security and Incident Response Director, Office of New Reactors Regional Administrator Region IV Director, Office of Nuclear Reactor Regulation Director, Office of Information Services Director, Office of Administration Director, Computer Security Office Director, Office of Small Business and Civil Rights Director, Office of Human Resources Assistant for Operations ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION NUCLEAR REGULATORY COMMISSION 307 . wishes to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NOTICE 299 A sample notice of motion or objection. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. . in taking official notice of law and policy, labeled LEGISLATIVE FACTS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NOTICE 301 FURTHER READINGS Clermont, Kevin M. 2009. Principles of Civil. BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION NUCLEAR POWER 305 emergency preparedness rules. These regula- tions delayed the opening of new nuclear