ML16340A664

Executed Amend 5 to Indemnity Agreement B-75,changing Prefatory Language Re Transportation of Radioactive Matl

ML16340A664
Person / Time
Site:	Diablo Canyon
Issue date:	10/31/1979
From:	Saltzman J Office of Nuclear Reactor Regulation, PACIFIC GAS & ELECTRIC CO.
To:
References
B-75-A-08, B-75-A-8, NUDOCS 7911230203
Download: ML16340A664 (34)

Text

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Docket Nos.

50-275 50-323

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WENDMENT TO INDEMNITY AGREEMENT HO. B-75 AMEHDMEHT HO.

5 Effective May 1, 1977, Indemnity Agreement No. B-75,-between Pacific Gas and Electric Company and the Nuclear Regulatory'Commission, dated December 31, 1975, as

amended, is hereby further amended by modifying the prefatory language of paragraph 5, Article I, to read as follows:

"In the'course of transportation" means in the course of transpor tation within the United States, or in the course of transportation outside the United States and any-. other nation, including handling or temporary storage incidental thereto, of the radioactive materialoto the location or from the location'rovided that:

FOR THE UNITED STATES NUCLEAR REGULATORY CQMMISSIOH Accepted

, 1979 By P CIFIC GAS ANDfLECTRI+COMPAHY o

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Jerome Saltzman, Chief Antitrust 8 Indemnity Grou' Office of I3uclear Reactor Regulation 'istribution:

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Docket; Nos 50-275 50-323 AMENDMENT TO INDEMNITY AGREEMENT NO. B-75 AMENDMENT NO.

1 Effective-3976 Indemnity Agreement No. B-75,

'etween Pacific Gas and Electric Company, and the Nuclear Regulatory Commission, dated December 31, 1975, is hereby amended as follows:

Item 3 of the Attachment to the indemnity agreement, is deleted in its entirety and the following substituted therefor:

Item 3 - License number or numbers SNM-1503 SNM-1667 (From 12:01 a.m

, December 31, 1975)

(From 12:01 a.m.,

OCT 1

5 1976

)

FOR THE UNITED STATES NUCLEAR REGULATORY COMMISSION

/Sl l'.."..ftrE MLTEMASIt Jerome

Saltzman, Chief Antitrust

& Indemnity Group Nuclear Reactor Regulation Accepted By PACIFIC GAS AND ELECTRIC COMPANY 1976 Distribution:

Licensee (2 originals)

PDR ELD Docket Files ~<'~~~~-:,~:,.-:

Div. Lab. Relations IE Indemnity Files IDinitz R/F AIG R/F NR

,ini, z,na, 8/ ($/76 OPPICC3P.

SVRNAMCSPI OATC~

Forna AEC.318 (RcT. 9.33) ARCS 0240 N

. IG J,,zman

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/76 k V CI OOYCRNMCNT PRINTINO OPPICCI IOTC ~ CCO ICC

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LJNLTEO b i A'fcb NUCLEAR REGULATORY COVMISSlOfg ivASHIHGTON, D.

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20555 Docket Xo ~

50 27+

50 323 Indemnity Agreement No, B-75 r

This Indemnity Agreement

'Zo. B-75 is entered into by and between PACIFIC GAS AND ELECTRIC COMPANY (hereinafter referred to as tne "licensee" ) and the United States Nuclear Regulatory Commission (nereinafter referred to as the "Commission" ) pursuant to subsection 170c of tne Atomic Energy Act of 1954, as amended (herein-after referred to as "the Act").

ARTICLE As used in this agreement:

1.

"Nuclear reactor," "byproduct material," "person," "source material," and "special nuclear material". shall have the meanings given them in the Atomic Energy Act of 1954, as

amended, and the regulations issued by the Commission.

2.

Except wncre otherwise specifically provided, "amount of finan-cial protection" means the amount specified in Item 2a'nd b, of the Attachment annexed

hereto, as modified by paragraph 8, Article IX, with respect to cornron occurrences.

3.(a) "Nuclear incident" means any occurrence, including an extra-ordinary nuclear occurrence, or series ox occurrences at the location or in the course of transportation causing bodily injury, sickness,

disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence,, including an extraordinary nuclear occurrence, or series of occurrences causing oodily injury, sickness,

disease, or

death, or loss of or damage to property, or loss of use of property,

0

arising out of or resulting fro'm the radioactive, toxic, explosive, or other hazardous properties of The radioactive material discharged or dispexsed from the location ove" a pexiod of days,

weeks, months or longex',

and also arising out of such properties of other material defined as "the radioactive material" in any other agreement or agreements entexed into by the Commission under. subsection 170c or k of the Act and so discharged or dispersed from "the location" as'efined in any such 'other agreement, or ii. The radioactive material in the course of transportation..

and also axising out. of such. propexties of other material defined in any other agreement entered into by the Commission.

pursuant to subsection 170c or k of the Act as "the radio-active material" and which is in the course of t ansportation shall be deemed to be a common. occurrence.

A common occurrence shall be deemed to constitute a single nuclear incident.

4.

"Extraordinary nuclear occurrence" means an event which. the Commission has determined to be an. extraoxdinary nuclear occux-ren e as defined in the Atomic Energy Act of 1954, as amended.

5.

"Xn the course of transportation" means in the course. of trans-portation within the United States, including handling ox temporary storage incidental.thereto, of the radioactive materia1 to the loca-xion or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by predetermination to.

be interrupted by the removal of the material z

om the transpo"ting conveyance for any purpose. other. than. the continuation-oz such.trans-.

portation to the location or temporary storage incidental thereto;.

(b) The transportation of the adioactive ma"eria" zrom the. loca-tion shall be deemed to end when the radioactive material is removed zrom the txansporting conveyance for any purpose other tnan the con-tinuan=e of transportation or temporary storage incidental thereto; (c) ":n the course oz transportation" as used in this agreemen-shall not include transportation of the radioactive material to the

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location if the material is. also "in..the course of transportation."

from any other "location." as defined, in any other agxeement entex'ed into by th'e Commission pursuant to subsection 3,70c or k of the Act.

6.

"Person indemnified" means, the. licensee and any other person who may be liable for public liability.

7.

"Public liability"means any legal liability arising out of or xesulting from a nuclear incident, except (1) claims under State. or Federal Workmen's Compensation Acts of employees of persons-indemni-.

fied who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of t'e radioactive material, on the transpox'ting vehicle, and (b) in connection with the licensee's possession, use or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) propexty which is located at the location and used in connection with the licensee's possession,

use, or trans-fer of the radioactive material, and (b) if. the nucleax'. incident-occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such txansportation, and the radioactive material.

8.

"The location" means the location desex'ibed in Item 4 of the Attachment hereto.

9.

"The radioactive material" means

source, special nucleax, and byproduct matexial which (1). is. used. ox'o be used in, or is ir radiated or to be irradiated by, the nuclear reactor or. reactors.,-

sub)ect to the license or licenses designated in the. Attachment

hereto, or (2) which is produced as the result of operation of said reactor(s).

10.

"United States" when. used in. a geographical sense includes, all Territories and. possessions of the United States, the Canal Zone and Puerto Rico.

ARTICLE II l.

At all times during the term of the license or licenses desig-nated in Item 3 of the Attachment. hereto, the licensee willmaintain financial protection in the amount. specified in Item 2 of. the Attach-ment and in the form of the nuclear energy liability insurance policy

1 designated in the Attachment.

Xf more than one license is designated in Item 3 of the Attachment, the licensee agrees to maintain such.

financial protection until the end of the term of that, license'. which will be the last to expire.

The licensee shall, notwithstanding..the expiration, termination, modification, amendment, suspension or revo-cation of any license or licenses. designated in Xtem 3 of the. Attach-.

ment, maintain such financial protection in effect until all-the-radio-active material has been removed from the. location 'and.,transporzazion of the radioactive material from the location has ended; as. defined. in subparagraph 5(b), Article I, or until the Commission authorizes, the termination or the modification.of such financial protection

. The, Commission will not unreasonably withhold such authorization, 2.

In the event of any payment by the insurer or insurers under. a policy or policies specified in Item. S. of the Attachment-hereto. which.

reduces the. aggregate limit. of such policy or policies below. the amount of financial protection, the licensee will promptly apply. to his. insurers-for reinstatement'of the. amount specified in Xtem 2a. of. the, Attachment.

(without reference to paragraph..b, of. Item 2) and will make all. r'easonable efforts to obtain such reinstatement.,

In the event that the licensee. has not obtained reinstatement, of. such amount within ninety-days after. the date of such reduction,. and. in the. absence of good cause. shown. to. the.

contrary, the Commission may issue an. order requiring the licensee to furnish financial protection for such amount in another form.

3, Any obligations of.the. licensee under subsection 53e.(8) of, the Act to indemnify. the United. States.

and; the Commission frcm-.public liability, together with any public liability satisfied by the in-surers under the policy or policies designated in the Attachment hereto, shall not, in the aggregate.

exceed the amount-of. financial..

protection with respect to any nuclear. incident, including. the reason-able costs of investigating and settling claims and defending suits for damage.

4.

With respect to any extraordinary nuclear oc uzrence ro which this agreement

applies, the Commission.,

and..the. licensee on behalf of. itself and other persons indemnified, insofar as their interests

appear, ea=h agree to waive (a) any issue or defense as to the-conduct of the claimant or fault of persons indemnified, including, but not limited,to

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(1) negligence; (2) contributory negligence; (3) assumption of the risk; (4) unforseeable intervening causes, whether involving the conduct of a third person or an act of God.

As used herein, "conduct of the claimant" includes conduct of.persons through whom the claimant derives his cause of action; (b) any issue or defense as to charitable or governmental immunity; (c) any issue or deEense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, oE his in)ury or damage and the cause thereof, but in no event more than ten years after the date of the nuclear incident.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.

The waivers shall be )udicially enforceable in accordance with their terms by the claimant against the person indemnified.

5.

The waivers set forth in paragraph 4 of this Article:

(a) shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages; (b) shall not apply to ingury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrong-fully caused by the claimant; (c) shall not apply to in)ury to a claimant who is employed at the site of and in connection with the activity where the extra-ordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's com-pensation or occupational disease law:

Provided, however, That with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in.connection

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h with the construction of a nuclear reactor with respect to which no operating license has been issued by the Atomic Energy Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes'lace if:

(1) the. claimant is employed exclusively in connection with the construction of a nuclear reactor, including all

related, equipment and installations at the facility, and (2) no operating license has been issued by the AEC with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,

storage, use or transfer of nuclear material at the facility.

(d) shall not apply to any claim for punitive or exemplary.

damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this 'exclusion does not apply to the extent that th' claimant has sustained actual

damages, measured by the pecuniary in)uries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law; (e) shall be effective only with respect,to those obligations set forth in this agreement; (f) shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the.pro-tection afforded under (1) the limit of liability provisions under subsection 170e of the Atomic Energy Act of 1954, as amended, and (2) the terms of this agreement and the terms of the nuclear energy liability insurance policy or policies designated in the attachment hereto.

6.

The obligations of the licensee under this agreement-shall apply only with respect to nuclear incidents 'occurring during the term of this agreement.

7.

Upon the expiration or revocation of any license designated in Item 3 of the Attachment, the Commission will enter into an appropriate amendment of this agreement with the licensee reducing the amount of financial protection required under this Article; provided, that the licensee is then entitled to a reduction in the amount of financial protection under applicable Commission regulations and orders, "B

With respect to any commonoccurrence:

{a) If the sum of the limit of liability of any Nuclear Energy Liability Insuranco Association policy designated in Xtcm 5 of the Attachment and the limito of liability of. all othcx nuclear energy 3.iability insurance policieo (facility form) applicablc to ouch common occurrence and issued by Nuclear Energy Liability Xnsurance Association exceeds

$96,875,ppp, the a..ount oi financia3. protection specified in Item 2a and

'o of the Attachment shall be d"emed to be reduced by that proportion of the difference between caid sum and

$.96,875,0QQ ae the limit of liability of the Nuclear Energy Liability Insurance Association policy designated in Xtem 5 of the Attachment bears to tha sum of the limits of liabilityof all nuclear energy 3iabklity insurance polic'ies (faci1ity form) applicable to such common occurrence and issued by Nuclear Energy Liability Xnsuranc Association,'b)

Xf the sum of the limit of liability of any Hutual Atomic Energy Liability Underwxitero policy designated in Xtem 5 of the Attachment and the limits of liability of all other nuc1ear energy 1iability insurance policieo (facility form) applicable to ouch common occurrence and iooued by Hutual Atomic Ener"y Liability Undexariters exceeds

$ 28,125,000, the amount of financial protection specified in Item 2a and b of the Attachment ohal3. be deemed to be reduced by that proportion of the difference betv-en said ou.;. and

$ 28;125,000 ao the limit of liability of the Hutua3. Atomic En rgy Liability Underwriters policy designated in Item 5 of th Attachment bears to the oum of the limits of liability of all nuclear energy 3iability insurance policies (facility form) applicable to such common occurrence and issued by Hutual Atomic Energy Liability Underwritero;

{c)

Xf any of the other applicable agreements is with a person who hao furnished financial protection in a form other than a 'nuclear energy liability inourance policy (facility form) issued by huclear Energy Liability Insurance Association or Hutual Atomic Energy Li bility Underwriters and if also the sum of the amount of finan-f ciel protection cata'olished under this agreement

<<nd the amounts o

financial protection established under all other applicable agreements exceeds

$125,000,000, the obligations of th licensee shall not exceed a great r proportion of

$ 125,CQQ,QQQthan the amount of financial pro-tection established under this agreemont bears to the um of such amount and the amounts of financial protection estab3.i hed under all other applicable ag<<ecmento.

A p

(d)

As used in this paragraph 8, Article II, and in Article III, "other applicable agreements" means each other agreement entered into by the Commission pursuant to subsection 170c of the Act in which agreement the nuclear incident is defined as a "common occurrence."

As used in this paragraph 8, Article II, "the obligations of the licensee" means the obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability, together with any public liability satisfied by the insurers under the policy or policies designated in the Attachment, and the reasonable costs of investigating and 'settling claims and defending suits for damage.

9.

The obligations of the licensee under this Article shall not be affected by any failure or default on the part of the Commission or the Government of the United States,to fulfillany or all of its obligations under this agreement.

Bankruptcy or insolvency of any person indemnified other than the licensee, or the estate of any person indemnified other than the licensee, shall not relieve the licensee of any of his obligations hereunder.

ARTICLE III 1.

The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2.

With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, t'e Commission agrees to pay to such person those sums which such person. would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2

does not apply with respect to:

(a)

Property which is located at the location described in Item 4 of the -Attachment or at the location described in Item 3 of the declarations attached to any nuclear energy liability insurance

'policy designated in Item 5 of the Attachment; (b)

Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident; (c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicles and containers used in such transportation; (d)

The radioactive material.

4

3, The Commission agrees to indemnify and hold harmless the licensee and other persona indemnified as their interest may appear, from the reasonable costs of investigating, settling and defending claims for pub 1 lc liability.

4. (n)

The obligations of the Commission under this agreement shall apply only with respect to such public liability, such damage to property of persons legally liable for the nuclear incid nt (other than such property described in the proviso to paragraph 2 of this Article), and such reasonable coat'a described in pa"agraph 3 of this Article as in the aggregate exceed the amount of financial protection.

(b)

Mith respect to a common occurrence, the obligations of the

'Commission under this agreement ohall apply only with respect to such public liability, such damage to property of parsons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article), and to such reason-able costs described in paragraph 3 of this Article, as in the aggregate exceed whichever of t:he fol1owing is lower:

(1)

The sum of the amounts of financial protection established under this agreement and all other applicable agreements; or {2) $125,000,000.

5.

The obligations of the Commission under this agrecuent shall apply only with respect to'nuclear incidents occurring during the term of this agreement.

6.

The obligations of the Commission under this and all other

'greements and contracts to which the Conanission is a party shall not, with respect to any nuclear incident, in the aggregate exceed whichever of the following ia the lowest:

(a)

$500,000,000; (b)

$560,000,000 less thc amount of financial protection required under this agreement; or (c) with respect to e common occurrence,

$560,000,000 less.the sum of the amounts of financial protection established under this agreement and all other applicable agreements,'.

The obligations of the Commission under this agreenrent, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee t:o fulfillits obligations under this agreement.

Bankruptcy or in"olvency of the licensee or any other person ind mnified or of the estate of the 1icensce or any other person ir.damnified shall not relieve the Commission of any of its obligations hercu".,der.

~r ARTICLE IV 1.

When the Commission. determines that. the United States-vill probably be required to make. indemnity. payments under. the: provisions..

of this, agreement,. the Commission shall: have. the right to-collabozate.

with the. licensee. and-other. persons. indemnified. in:.the, settlement. and.

defense of any claim, and shall. have. the, xight.".(a). to. zequire the. prior approval of the Commission. for. the settlement or payment-of. any. claim.

or action essex'ted, against. the, licensee. or. other person. indemnified..

for public liability or. damage. to. propexty of. persons. legally-liable for the nuclear. incident. which. claim. or action. the. licensee-ox-the..

Commission may be x'equired. to. indemnify under this. agreement; and.

(b) to appear through. the. Attoz'ney. Genexal. of the-United. States. on.

behalf of the licensee ox'ther person. indemnified,. take chax'ge. of.

such action and settle. oz. defend. any such, action..If.the. settlement.

or defense of any such action. or. claim is undertaken..by.,the-Commission, the licensee shall. fuznish-all.reasonable assistance in effecting a settlement or asserting a defense.

2.

Neither this agreement. nor any interest therein, nox. claim,,

thexeunder may be assigned or transferred without the'pproval of the Commission.

ARTICLE V The parties, agree that they. will..enter into. appropriate amendments. of this, agreement. to the extent that such amendments are required pursuant-to. the..

Atomic Energy. Act of 1954, as. amended, or licensee, regulations or-orders of the Commission.

ARTICLE VI The licensee agrees to pay to. the. Commission..such fees as are-established.

by the Commission pursuant to regulations or orders of the Commission.

ARTICLE VII The term. of this. agreement.,shall.

commence. as. of. the. date. and. time. specified,.

in Item. 6-of. the. Attachment-and. shall. terminate. at. the time. of expiration. of that license. specified in. Item 3 of. the. Attachment,. which. is. the. last. to. expire;.,

provided. that,. except as may otherwise. be. provided. in applicable regulations ox orders. of the. Commission,. the term. of. this agreement. shall not-terminate until all the radioactive material has. been removed. from. the.,location. and transportation of the radioactive material. fzom the. location. has. ended-as defined in subparagx'aph 5(b),.Article. I..Termination, of the. term of. this.

agreement shall not affect any obligation-of the licensee, ox. any. obligation of the Commission under this agreement. with respect to any nuclear incident occurring during the term of this agreement.

UNITED STATES NUCLEAR REGULATORY COKIISSXON 4

ATTACEBKNT Xtem 1 - Licensee Xndemnity Agreement No. 9-75 Pacific Gas and Electric Company Address 77 Beale Street San Francisco, CA 94106 Item 2 - Amount of financial protection a.

$1,000,000

'b.

With respect to any nuclear incident, the amount specified in Item 2a of this Attachment shall be deemed to be (1) reduced to the extent. that any payment made by the insuxer or insurers under a policy or policies specified in Xtem 5 of this Attachment reduces the aggregate amount of such insurance policies below the amount specified in Item 2a and (ii) restored to the extent that, following such reduction, the aggregate amount of such insurance policies is reinstated.

Xtem 3 License number or numbers SNM-1503 Item 4 - Location All of the premises including the land and all buildings and structures known as the Diablo Canyon Nuclear Power Plant including but. not limited to Unit's I and XI.

The Diablo Canyon Nuclear Power Plant is located on a site consisting of about, seven hundred fifty (750) acres near the mouth of Diablo Creek, approximately twelve (12) miles west southwest of the city San Luis Obispo in San Luis Obispo County, California.

Item 5 >> Insuxance Policy No(s).

Nuclear Energy Liability Policy (Facility Form)

No. NF-228 issued by the Nuclear Energy Liability Xnsurance Association.

OPI ICR~

SURNAMCW Form AEC-318 (ReT. 9 f3) hZCM 0240 A U. 4; OOVORNMCNT PRINTINO OJPICCI IOT4 444 144

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item 6 The indemnity agreement designated above, of which this Attachment is a part,

's effec ive as of 12:Ol a.m.

on the 3~ +

day of r 1975-FOR TEIE UNXTED STATES NUCLEAR REGULATORY COE21ISSXON

/sl JEROME SALT2MAH Jerome

Saltzman, Chief Antitrust 8 Indemnity Group Nuclear Reactor Regulation FOR PACXFXC GAS AND ELECTRXC COMPANY Dated at Bethesda

aryland, the sist'ay of 975 Distribution:

Licensee (2 originals)

PDR ELD Docket Files ~ ~

Div. Labor Relations RO Desk Indemnity File IDinitz Reading OAI Reading NR IDinith/cd OPPIC6+

6 IIR NAM6 3P 12/

75 OAT6~

Form hEC.318 (ReT. 9.53) hECM 0240 N

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/75 0 U. 6, OOVIKRNM6NTPRINTINO OPPIC61 IOT4 ddd 140

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UNITEO STAYFS ~

NUCLEAR REGULATORY COiblMISSlOiii WASHINGTON, O.

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20555 August 13, 1975 George Ingalsbe Business I'lanageinent Branch Office of Administration DISTRIBUTION:

Docket File(s)

Indemnity File OAI File IDinitz R/F CiQNGE IN Ai'li'lUAL INDEilNITY FEE In accordance. with 10 CFR Part 140.7. and in viewer of the licensing action indicated below, please change the annual indemni ty fee with respect to the licensee shown:

Licensee a

Pni 1 adel pnia E iectri c Co ipany (Unit 1) l caen Bottom License number License action Possession only license 011~l.l.1

~llaw owar 1 aval Indemn~it action Amendment Issued Agreement 8

Old fee "3,430 per year New fee

$ iUO per year, Ef, ective Da te 7/14/7o

+'l MlY)pg Ira Dinitz, Indemnity Specialist Office of Antitr0st 5 Indemnity tluc 1 ear Reactor Regu1 a tion

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