Also known as: reasonable assurances
Written by attorneys — see sources below.
3 senses
An obligation imposed on managing lawyers to implement firm procedures that provide reasonable assurance of compliance with professional conduct rules by all firm lawyers and nonlawyers.
A communication or action by a party that indicates a likelihood of curing a failure to perform, considered in assessing whether a breach is material.
A finding by the NRC that a nuclear facility can be constructed and operated without undue risk to public health and safety.
Each sense below has its own examples, sources, and questions.
An obligation imposed on managing lawyers to implement firm procedures that provide reasonable assurance of compliance with professional conduct rules by all firm lawyers and nonlawyers.
Lisa, managing partner at Highland Builders, allowed each practice group to design its own ethics training without any firm-wide reporting or audits. One group used only informal shadowing, leaving junior associate Charles without guidance on trust account rules. A client complaint about a commingling error prompted a bar inquiry into whether Lisa had satisfied her managerial duties.
Managing partner Lisa permitted each practice group at Highland Builders to choose its own training for paralegals handling trust accounts. One group provided no written materials or supervisor sign-offs. After a junior paralegal made an unauthorized disbursement, the bar examined whether Lisa had put measures in place giving reasonable assurance of compatible conduct.
1 common questions
A managing partner must implement measures that give reasonable assurance all lawyers in the firm will conform to the Rules. Decentralized training without firm-wide reporting, audits, or verification fails to provide such assurance when gaps allow ethical errors to go undetected.
Supporting sources
A communication or action by a party that indicates a likelihood of curing a failure to perform, considered in assessing whether a breach is material.
CodeCraft missed the November 1 delivery deadline for Nova Retail's e-commerce platform after discovering security bugs. It sent daily progress reports and delivered a fully functional site on November 15 while offering to fix remaining issues. Nova refused payment and claimed material breach, but the court focused on the prompt cure and ongoing assurances.
3 common questions
A court weighs the likelihood that the breaching party will cure its failure, taking account of all circumstances including any reasonable assurances. Prompt cure supported by concrete written assurances and substitute performance tends to show the breach is not material. Vague or post-deadline assurances that cannot restore the expected benefit on time support a finding of materiality.
Supporting sources
A finding by the NRC that a nuclear facility can be constructed and operated without undue risk to public health and safety.
The Licensing Board reviewed an application for a new nuclear reactor and examined site geology, hydrology, and emergency systems. It concluded that the design and operating procedures supplied reasonable assurance the plant could run without undue risk to public health. The board therefore issued the construction permit.
The cases involve two nuclear power projects regulated by the Atomic Energy Commission. In December 1967, the Commission granted Vermont Yankee Nuclear Power Corp. a permit to build a nuclear power plant in Vernon, Vermont. Vermont Yankee subsequently applied for an operating license, prompting an adjudicatory hearing in August 1971 at which the Natural Resources Defense Council participated and objected to the exclusion of fuel reprocessing and waste disposal environmental effects. In November 1972 the Commission began informal rulemaking to address the environmental effects of the uranium fuel cycle for light water reactors, publishing notice of two proposed alternatives based on its Environmental Survey. Hearings occurred in February 1973 with over forty participants submitting written comments; the Commission allowed oral statements but prohibited discovery and cross-examination, instead permitting questioning by the Commission itself. The Commission adopted the second alternative in April 1974, incorporating numerical values into a table for cost-benefit analyses. In January 1969 Consumers Power Co. applied for a construction permit for two nuclear reactors in Midland, Michigan. Intervenors including Saginaw and Mapleton submitted numerous environmental contentions and discovery requests, which the Licensing Board largely denied before holding hearings in 1972. Although Saginaw raised energy conservation issues in comments on the draft environmental impact statement, it did not present evidence at the hearings or participate further after the final statement issued. The Court of Appeals for the District of Columbia Circuit in 1976 remanded both the Vermont Yankee operating license and the Consumers Power construction permit. It found the fuel cycle rulemaking procedurally inadequate and required consideration of energy conservation alternatives as well as further development of the Advisory Committee on Reactor Safeguards report. The Supreme Court granted certiorari in 1977.
1 common questions
The board finds reasonable assurance when the applicant demonstrates through site evaluations, design analysis, and safety measures that the plant can be constructed and operated without undue risk to public health and safety. The finding is required before issuing a construction permit or operating license.
Supporting sources
…reactor safety standards." 42 U. S. C. § 2039. : The Licensing Board issues a permit if it concludes that there is reasonable assurance that the proposed plant can be constructed and operated without undue risk, 42 U. S. C. § 2241; 10 CFR § 50.35 (a) (1977), and that the environmental cost-benefit balance favors the…
…reactor safety standards.” 42 U. S. C. § 2039. : The Licensing Board issues a permit if it concludes that there is reasonable assurance
A pattern of prior defaults can undermine the credibility of later assurances even when the breaching party takes remedial steps. Courts consider whether the new measures and written commitments overcome the prior record of unreliability when deciding if cure is sufficiently likely to render the breach nonmaterial.
Supporting sources
When reasonable grounds exist to believe a breach will occur, the obligee may demand adequate assurance. Failure to provide assurance that is adequate under the circumstances within a reasonable time constitutes repudiation. Vague statements of commitment without timelines or verifiable plans are usually inadequate.
Supporting sources
Intervenors challenged a reactor license application before the Licensing Board. The board evaluated whether the applicant had shown reasonable assurance that operation would not endanger public health or safety. After reviewing the hazards analysis and environmental data, the board granted the permit over the objections.
In 1967 the Atomic Energy Commission granted Vermont Yankee a construction permit for a nuclear power plant in Vernon, Vermont, after the required adjudicatory hearing and reviews. Vermont Yankee later applied for an operating license; NRDC intervened and objected to exclusion of fuel-reprocessing and waste-disposal impacts from the hearing. In November 1972 the Commission opened a separate rulemaking proceeding on those fuel-cycle issues, noticed two alternative approaches based on its Environmental Survey, and conducted a February 1973 hearing at which more than forty participants submitted comments but no discovery or cross-examination occurred. In April 1974 the Commission adopted a rule assigning numerical values to fuel-cycle impacts and applied it prospectively. In January 1969 Consumers Power applied for permits to build two nuclear reactors in Midland, Michigan. After staff and ACRS review, Saginaw and Mapleton intervened and raised 119 environmental contentions, including seventeen on energy conservation. The Licensing Board held hearings on radiological issues, the staff issued a final environmental impact statement in March 1972, and further hearings occurred in May and June 1972; Saginaw declined to participate in the later hearings or submit proposed findings. The Licensing Board granted the construction permit, the Appeal Board affirmed, and the Commission declined further review. In November 1973 the Commission ruled in another case that energy-conservation evidence meeting threshold tests could be considered, but it later refused Saginaw's motion to reopen the Consumers Power record. NRDC appealed the Vermont Yankee license and rule to the D.C. Circuit; Saginaw and others appealed the Consumers Power permit. In 1976 the Court of Appeals remanded both matters, holding the fuel-cycle rulemaking procedures inadequate, the Consumers Power environmental impact statement defective for omitting energy conservation, and the ACRS report insufficiently explained. The Supreme Court granted certiorari in 1977. The Commission is the successor agency to the Atomic Energy Commission under the Energy Reorganization Act of 1974. All licensing proceedings followed the two-stage process of construction permit followed by operating license under the Atomic Energy Act of 1954, with NEPA environmental reviews added after 1969.
View caseA state energy commission imposed additional certification requirements on a proposed nuclear plant already under NRC review. The utility argued the state rules conflicted with federal findings of reasonable assurance on safety. The court examined whether the federal licensing process preempted the state demands.
By the late 1970s, spent nuclear fuel had accumulated at reactor sites across the country, totaling some 8,000 metric tons with projections of 72,000 metric tons by the year 2000. Government studies indicated that several reactors could be forced to shut down in the near future due to insufficient storage capacity in on-site pools. California responded to these concerns and the absence of a permanent disposal method by amending its energy laws in 1976. In 1974 California had enacted the Warren-Alquist State Energy Resources Conservation and Development Act. The Act requires any utility seeking to construct an electric power generating plant, including a nuclear facility, to obtain certification from the State Energy Resources Conservation and Development Commission after a multi-stage review process. The Warren-Alquist Act was amended in 1976 to provide additional state regulation of new nuclear powerplant construction. This section directs the Commission to determine on a case-by-case basis that adequate storage capacity for spent fuel rods will exist when needed. Each utility must also maintain continuous on-site full core reserve storage capacity. Section 25524.2 established a moratorium on the certification of new nuclear plants. Certification is barred until the Commission finds that a demonstrated technology or means for the permanent disposal of high-level nuclear waste has been developed and approved by the United States. In 1978 petitioners Pacific Gas & Electric Co. and Southern California Edison Co. filed suit in the United States District Court for the Eastern District of California. They sought a declaratory judgment that the two sections and other provisions of the Warren-Alquist Act were pre-empted by the Atomic Energy Act of 1954. The District Court held that the petitioners had standing, that the challenges were ripe, and that both sections were invalid as pre-empted. The Court of Appeals for the Ninth Circuit affirmed standing and ripeness as to section 25524.2 but held the challenge to section 25524.1(b) unripe. On the merits, the court held that the nuclear moratorium provisions of § 25524.2 were not pre-empted because §§ 271 and 274(k) of the Atomic Energy Act constitute a congressional authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The Supreme Court granted certiorari limited to the ripeness of the challenges to both sections and the pre-emption of section 25524.2.
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