ML19207B065
| ML19207B065 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/20/1979 |
| From: | NRC OFFICE OF PUBLIC AFFAIRS (OPA) |
| To: | NRC OFFICE OF PUBLIC AFFAIRS (OPA) |
| References | |
| PR-79-121, NUDOCS 7908230326 | |
| Download: ML19207B065 (11) | |
Text
/""%,
UNITED STATES
!['UE"i NUCLEAR REGULATORY COMMISSION
's W / I Office of Public Affairs S.Y.. #
Washington, D.C. 20555 No.79-121 FOR IMMEDIATE RELEASE Tel.
301/492-7715 (F riday, July 20, 1979) 215/337-5330 NRC INVITES PUBLIC TO SUBMIT INFORMATION TO ASSIST IN DETERMINATION ON THREE MILE ISLAND ACCIDENT The Nuclear Regulatory Co: mission is inviting the public to submit information which will assist the Commission in determining whether the waivers of defenses provisions of the Price-Anderson Act should be applied in lawsuits involving the March 28 accident at the Three Mile Island Nuclear Power Plant in Pennsylvania.
The Price-Anderson Act provides a system of private funds and government indemnity totaling $560 million to pay public liability claims for personal injury and property damage resulting from a nuclear incident.
In order to conclude that the waivers of defenses provisions of the Price-Anderson Act apply, the Commission would have to make two specific findings in regard to the accident at Three Mile Island.
The first is that there was a substantial release of radioactive material offsite.
This involves either radiation doses received by individuals or radiation levels on specific creas of land.
The second finding is that there were substan-tial offsite damages.
The levels of offsite radiation and the damage amounts required by the Ccmmission's existing regulations are discussed in the attachment to this announcement.
If the Commission were to make these findings, the defen-dants in the Three Mile Island lawsuits would be required to waive certain defenses they othet.ise might have.
To recover damages a claimant would not need to prove negligence.
The claimant would only need to prove injury or damage, the monetary amount of the damages and that the damages were caused by the cccident.
The waivers eliminate certain defenses based upon the con-duct of the claimant, such as contributory negligence and cssumption of risk.
There also are provirions concerning the statute of limitations and the consolidation of suits in a single Federal District Court.
'l [] WF W 7908230];;26
2-79-121 The NRC staff has advised the Commission that based on the information available at this time it does not believe the criteria necessary to activate the waivers of defenses have been met; in particular, the radiation released appears to be several hundred times less than that required to meet the criterion in the regulations.
However, the Commission believes more information should be sought from the public and other sources.
The Commission said that although no petitions have caen received requesting that the Price-Anderson findings be made, there are several factors which make such a determination a matter of public interest.
First, the accident at Three Mile Island is the most serious nuclear accident to date at a licensed U.S. facility, and thus should be scrutinized rigor-ously from the standpoint of its effect on the public.
Secondly, various lawsuits have been brought as a result of the accident, and a determination by the Commissica is perti-nent to issues which may arise in those cases.
mae Federal District Court in Harrisburg has informally as'o 3 the Commis-sion for its view on this matter, and the Commission would like to assist the Court.
American Nuclear Insurers has advised the NRC that it has been paying claims for living expenses of pregnant women and pre-school age children who evacuated the five-mile area follow-ing the March 28 accident for the period covered by Governor Richard Thornburgh's advisory.
Payments were also made to husbands and other family members of the affected individuals who chose to evacuate with them.
The decision to pay claims for expenses of other persons living within the five-mile area not covered by the Governor's advisory to pregnant women and pre-school age children--such as those filed by persons with special medical problems who would have had extreme difficulty evacuating the area on short notice and who therefore chose not to stay--was made on a case-by-case basis.
As of June 28, cumulative paymento for evacuation made to approximately 10,000-12,000 individuals were $1,275,072.
To date, twenty legal actions have been initiated in Pennsylvania State and Federal courts.
before the Federal District CourtAll of these cases are now pending in Harrisburg.
Additional claims have been received by American Nuclear Insurers from individuals and businesses both within and outside the five-mile radius of the plant, claiming damages for personal injury, loss of use and value of property, and business losses result-ing from the accident.
ANI reports it still is reviewing those claims.
'$' O $ D ;3, In its request for public comment, the Commission invited interested persons to submit, within 30 days, any information relevant to making the " extraordinary nuclear occurrence" determination under the Price-Anderson Act and to focus, if possible, on the application of Sections 140.84 and 140.85 of NRC regulations with respect to the Three M!.le Island accident.
These provisions, together with other information on the sub-ject, are described in the attachment to this announcement.
Information provided by the public, along with information assembled by the Ccmmission from its own and other sources, will be considered by a panel composed of NRC principal staff.
The composition of this panel, and the detailed procedures which the Commission will follow, including further provision for public participation, will be announced later.
Submittals should be sant to the Secretary, U.S.
Nuclear Regulatory Commission, Washington, D.C.
20555.
Copies of these submittals will be placed in the NRC Public Document Room, 1717 H Street, NW, Washington, D.C.,
and in the local public documen room in the Government Publications Section, State Library of Pennsylvania, Commonwealth and Walnut Streets, Harrisburg.
NOTE TO EDITORS:
Members of the public may obtain this infor-mation package at the main post office in Harrisburg, Lancaster, York, M..ddletown, Elizabethtown and Etters, PA.
Addresses of Main Post Offices:
813 Market St.
200 S. George St.
48 Chestnut Harrisburg, PA 17105 York, PA 17405 Lancaster, PA 17604 South Union St.
Etters Post Office 129 S.
Market St.
Middletown, PA 17057 Etters, PA 17319 E1 zabethtown, PA Attachment
'91236
BACKGROUND INFORMATION INTRODUCTION If a nuclear incident occurs, one of the principal obstacles to a claimant's recovery for injuries or damages could be the necessity of proving negligence on the part of the utility or other defendants.
In 1966 Congress attempted to remove this obstacle for certain nuclear incidents
("cxtraordinary nuclear occurrences" - ENO) through contractual provisionc termed " waivers of defenses," resulting in an essentially no-fault scheme.
These waivers were intended to expedite recovery for claims under the Price-Anderson Act in the event of en ENO.
The following is intended to explain the waiver of defenses in greater detail and to describe the criteria used by the NRC in mak.ng a finding as to whether or not an EN0 has occurred.
In order to better understand the waiver provision and the concept of an EN0, an overview of the Price-Anderson Act is included.
I.
OVERVIEW OF THE PRICE-ANDERSON ACT Under the Price-Anderson Act (wnich is a part of the Atomic Energy Act of 1954) there is a system of private funds and government indemnity totalling $560 million to pay public liability claims for personal injury and property damage resulting from a " nuclear incident." The Price-Anderson Act, which expires August 1, 1987, requires licensees of large commercial nuclear power plants to provide proof to the NRC that they have financial protectier. in the form of private nuclear liability insurance, or in some other form approved by the Ccmmission, in ar.
amount equal to the maximum amount of liability insurance available frca private sources.
That financial protection, $475 million at the time of the Three Mile Island (TMI) accident on March 28, 1979, consists of primary private nuclear liability insurance of $140 million provided by two insurance pools, American Nuclear Insurers (ANI) and Mutual Atomic Energy Liability Underwriters (MAELU) (which was increased to $160 million on May 1, 1979 -- except for TMI) and a secondary layer.
In the event of a nuclear incident causing damages exceeding $140 million, each commercial nuclear power plant licensee would be charged by the insurance pools providing the insurance a prorated share of damages in excess of the primary insurance layer up to $5 million per reactor per incident.
With 67 large commercial reactors now operating under this system, the secondary insurance layer totals $335 million.
Thus, the two layers of insurance at the time of the TMI accident totaled $475 million.
The difference of $85 million between the financial protection layers of
$475 million and the $560 mi' lion liability limit established by the Price-Anderson Act is provided by government indemnity.
Government indemnity will gradually be phased out as more commercirl reactors are licensed and licensees participate in the second layer of insurance.
When the primary and secondary layers by themselves provide liability V91237
s coverage of $560 million, government indemnity will be eliminated.
The liability limit -- now $560 million -- would thereafter increase in increments of $5 million for each new commercial reactor licensed to operate.
II.
EXTRAORDINARY NUCLEAR OCCURRENCE -- GENERAL A.
Definitica Webster defines the term " extraordinary" as " going beyond what is usual, regular, or customary." Viewed in this light, the recent events at Three Mile Island may be termed extraordinary, since they would not occur during normal o srations at a nuclear power plant.
However, the term " extraordinary nmclear occurrence" (EN0) is precisely defined by the Price-Anderson Act as follows:
The term " extraordinary nuclear occurrence" means any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the Commission determines to be substantial, and which the Commission determines has resulted or probably will result in substantial damages to persons offsite or prcpercy offsite.
(Atomic Energy Act (as amended), subsection 11j, 42 U.S.C.
2014j )
The definition thus provides a two-pronged test:
(1) substantial offsite release of radioactive material or substantial offsite radiation, and (2) substantial offsite damages.
This same section requires that the Commission " establish criteria in writing" for purposes of applying these tests to specific events.
The significance of the ENO concept is that a positive determination that an EN0 has taken place must be made by the Commission before the
" waiver of defenses" provisions of the Act, described below, can apply to che accident.
In the event of a " nuclear incident" that is declared not to be an ENO, Price-Anderson funds are still available and normal defenses permitted under State law are not waived.
The insurance pools may dispense funds under their policies, whether or not there is a determination by the Commission of an ENO, and in certain situations at TMI have already done so.
B.
Legislative History Congressional reports and statements by members of Congress in 1966, during the passage of the ENO and related provisions, give a clear impression of Congressional intent.
On one hand, it was felt that if recovery of Price-Anderson funds were left entirely to the statutes and
'31238 s
- principles of State tort law in the event of a major nuclear accident, many valid claims might be tied up in the courts for years.
Congress gave particular attention to problems of varying State statutes of limitations (some States, for example, had not adopted the " discovery" rule for concealed injuries -- which would run the statute of limitations from the time the injured party knew of or reasonably should have discovered his injury). Congress was also concerned with the possibility that some States might not apply " strict liability" to a nuclear accident so tha't injured parties might have to prove negligence.
On the other hand, there was considerable resistance to the total substitution of State law by creation of a " Federal tort" for nuclear accidents.
The result of this balance of competing factors was the " waiver" system.
Under this system the NRC could require that its licensees agree to waive certain State law defenses (contributory negligence, asstaption of risk, etc.) as part of the indemnity and insurance agreements, end thus create " strict liability" through the insurance policies and indemnity agreements.
A statute of limitations would also be incorporated into these agreements, which would come into play if state statute of limitations were more restrictive.
Finally, a consolidated Federal court proceeding would be used to handle all claims in the new system.
Insurers feared, however, that under such a waiver system they would be subjected to " nuisance suits." The insurance industry felt that it should not be required to waive the usual defenses available to it under State tort law for those " nuclear incidents" which had resulted in, at most, minor offsite releases and property damage.
The insurance pools urged that such cases could be, and should be, dealt with within the usual State tort law system, particularly since minor accidents would P
not 9 ie "ise to the need for quick, massive recoveries.
To meet this concern, Congress developed the "EN0" concept.
The waiver provisions would be activated only if an " extraordinary nuclear occurrence" took place.
The ENO was intended to be an event causing both substantial offsite releases of radiation and substantial offsite damages to persons or property.
The Commission was given broad discretion (free of judicial review) to determine what constitutes an EN0, but was iaquired by the 1966 amendments to publish written criteria which would be adopted after a public rulemaking process.
Congressional statements indicate that application of the criteria would be relatively flexible, even though precise numbers (such as a $5 nillion damage figure) would be selected in the rulemaking.
There is no indication that Congress intended the Commission to apply its criteria in a rigid fashiou.
Still, it is equally clear that Congress did desire a reasonably specific index of what the Commission considered " substantial" for purposes of an ENO determination.
d1M3 C.
Waivers of Defenses d t When the Commission determines that an EN0 has occurred, then any defe must waive:
any issue or defense as to the conduct of the claimant or (1) fault of persons indemnified, any issue or defense, as to charitable or governmental (ii) imunity, and any issue or defense based on any statute of limitations if suit is instituted within three years from the date on (iii) which the claimant first knew, or reasonably could have known,
- n no event of his injury or damage and the cause thereof, bo+ nuclear incident.
more than twenty years after the date of tbr The waivers in subsection (i) relating to the fault of all persons indemnified relieve the claimant of having to prove negligence by any defendant and of having to disprove defenses such as contributory ne To recover for damages resulting from an EN0, a claimant needs to prove d
that he was injured or damaged, the monetary amou l
i or other hazardous properties of the radioactive material celeased.
Thus, through this "no-fault" type of provision the f
d by the defendant but rather showing that his injury or damage was cause the ENO.
The statute of limitations provision in subsection (iii) of the waivers
- Thus, is not intended to be more restrictive than applicable State law.
if a State had a statute of limitations which provided that suits for personal injury or property damage resulting from a nuclear incident could be brought any time within 30 years af ter the occurrence of the incident, the 30-year statute would take precedence over the 20-year period specified in the Price-Anderson Act.
The criteria to be used by the Commission will be d
In by the Commission, the waivers of defenses prov now has under existing tort law.
The other major concept in the 1966 amendments is that the Comm i
able authority to determine whether or not an ENO has occurred is not rev ew by the courts.
The 1966 amendments also benefited injured persons dless payments to claimants immediately following a nuclear incident, rega respects.
'(31.icMO of whether an EN0 determination has been made and without requiring them to sign a release or otherwise compremise their claims.
In the event of an EN0, the 1966 amendments authorized all claimants to sue in the same Federal district court, generally under the same rules of procedure.
Any action dealing with the same incident but pending in any State court or other Federal district court could, upon motion of the NRC or defendant, be removed to the single specified district court.
Consolidation of all claims resulting from an EN0 in a single Federal district court would permit all claimants to be treated equally.
Finally, the 1966 amendments modified the Act to assure that available funds would be distributed in accordance with a court-approved plan making appropriate allowance for latent injury claims if it appeared that the total amount of all claims might exceed the limit on liability.
III.
CRITERIA FOR DETERMINING AN ENO A.
Lanauage and Structure of the Criteria For the Commission to make the determination that there has been an EN0 both Criterion I and Criterion II as set out in the Commission's published regulations (Chapter 10, Code cf Federal Regulations, sections 140.84 and 140.85) must be met.
The language of the criteria (especially Criterion I) is rather technical and precise and is expressed in terms of measurements that laymen would not be expected to make themselves.
For example, to satisfy Criterion I the Commission must determine that there has been a substantial discharge or dispersal of radioactive material off the site of the reactar, or that there has been a substantial level of radiation offsite.
The Commission would determine that Criterion I I had been met when, as a result of an event comprised of one or more related happenings, radioactive material is released from its intended place of confinement or radiation levels occur offsite and either of the following findings are also made.
The Commission finds that one or more persons offsite were, a.
could have been, or might be exposed to radiation or to radioactive material, resulting in a dose or in a projected dose in excess of one of the levels in the following table:
TCTAL PROJECTED RADIATION DOSES Critical orcan Dose (rems)
Thyroid 30 Whole body 20 Bone Marrow 20 Skin 60 Other organs or tissues 30 901241 In measuring or projecting doses, exposures from the following types of radiation shall be included:
(1)
Radiation from sources external to the body; (2)
Radioactive material that may be taken into the body from air or water; and (3) Radioactive material that may be taken into the body from food or from land surfaces.
(or) b.
The Commission finds that --
(1) As the result of a release of radioactive materi'l from a reactor there is at least a total of any 100 squar e meters of offsite property that has surface contamination.
This contamination must show levels of radiation in excess of one of the values listed in column 1 or column 2 of the following table, cLr_
(2) As the result of a release of idioactive.aaterial in the course of transportation suriace contamination of any offsite property has occurred.
This contamination must show levels of radiation in excess of one of the values listed in column 2 of the following table.
TOTAL SURFACE CONTAMINATION LEVELS-*/
Column 1 Column 2 Utility's property beyond Type of the fence surrounding the Other offsite emitter reactor station.
property Alpha emmission 3.5 microcuries per square 0.35 microcuries from transuranic meter per square meter isotopes Alpha emmission 3r microcuries per square 3.5 microcuries from isotopes heter per square meter other than transuranic isotopes Beta or gamma 40 millirads/ hour at 4 millirads/ hour emmission 1 cm. (measured through at I cm.
(measured not more than 7 milli-through not more that grams per square centi-7 milligrams per meter of total absorber) square centimeter of total absorber)
~
- /
The maximum levels (above background), observed or projected, 8 or more hours after initial deposition.
'291242 Based on the information available to the NRC staff at this time, it appears that neither part of Criterion I is satisfied.
Both personal exposures and property contamination are presently considered to be far below the levels specified in the tables set out above.
In the period March 28-April 7, the approximate upper limit on whole body dose to a person in a populated area offsite has been calculated to be 100 millirems.
For the most part, property contamination levels measured approximated
" minimum detectable activity" levels.
If the Commission determines that an evont satisfied Criterion I, Criterion II must then be applied.
If Criterion I cannot reasonably be met, the Commission would conclude that there has not been an EN0.
Criterion II is satisfied if the Commission makes any of the following findings:
(1) The event has resulted in the death or hospitalization, within 30 days of the event, of five or more people located offsite showirg objective clinical evidence of physical injury from exposure to the radioactive, toxic, explosive or other hazardous properties the reactor's nuclear material, E (2) $2,500,000 or more of damage offsite has been or will probably be sustained by any one person, or $5 million or more of such damage in total has been cr will probably be sustained, as the result of such event; E (3) The Commission finds that $5,000 or more of damage offsite has been or will probably be sustained by each of 50 or more persons, provided that $1 million or more of such damage in total has been or will probably be sustained, as the result of such event.
The term " damage" refers to damage arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the reactor's nuclear material, and shall be based upon estimates of one or more of the following:
(1) Total cost necessary to put affected property back into
- use, (2)
Loss of use of affected property, (3) Value of affected property where not practical to restore to use, (4) Financial loss resulting from protective actions such as evacuation, appropriate to reduce or avoid exposure to radiation or to radioactive materials.
'j u 1 M 3
-8 Based on the information available to the NRC staff at this time, the only category of Criterion II damages possibly satisfied by the Three Mi'a Island accident is defined by (4), namely financial loss resulting from protective actions such as evacuation, appropriate to reduce or avoid exposure to radiation or radioactive material. A limited number of persons (pregnant women and small children) were advised by the Governor of Pennsylvania to leave the 5 mile radius of Three Mile Island, and in so doing incurred expenses. The insurance pools have been compensating the expenses of these families.
Many others evacuated the area although they were not advised to do so.
A detailed assessment of all losses of this type might reach the $5 million figure of Criterion II, though much would depend on how broadly the various damage categories of this criterion were interpreted.
It appears unlikely that voluntary payments by the insurance pools will reach this figure.
The amount recoverable in the various court actions is virtually impossible to estimate at this time.
The 1966 amendments to the Act required the Commission to prepare and publish for public comment the criteria it proposed to apply in deciding whether a nuclear incident was an ENO.
On May 9, 1968, the proposed rule and accompanying explanation appeared in the Federal Reaister (33 Fed. Reg. 6978).
Following a period of public comment, the final rule was published on September 1,1968 with an effective date of December 1, 1968 (33 Fed. Reg. 15998).
The dual criteria contained in the final rule were designed to follow the language of the 1966 amendments to the Act in defining an EN0:
there must be a substantial offsite release and substantial offsite damages. The specific values incorporated into the criteria intentionally place a large gap between an ENO and the Commission's regulations governing offsite release during normal operations. Those values were intended to represent the Atomic Energy Commission's best judgment in deciding when the Act's definition of an EN0 had been satisfied.
The criteria have remained unchanged since their adoption in 1968.
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