ML19208C042
| ML19208C042 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/08/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| NUDOCS 7909240444 | |
| Download: ML19208C042 (10) | |
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Pursuant to its authority under Section ll(j) cf the Atomic Energy Act of 1954, as amended, 42 U.S.C.
2014(j), and according to Subsection 140.82 of its regulations, 1C CFR 14 0. 8 2, the Cc==ission hereby initiates the making cf a determination as 00 whether or not the recent acciden at Three Mile Is'ard.,
Unit 2, constitutes an extraordinary nuclear cccurrence
(" ENC " ).
Although ne peti:icns requesting such a determination have as yet been received, the Cccmissicn is aware of several f acters which indicate that preceeding with the determina:icn at'this time is in the public interest.
First, it is clear that the events which have taken place at Three Mile Island, Uni: 2, constitute the
- s sericus nuclear acciden: 50 date at a licensed U.S. f acility,
and thus shculd be rigorcusi. scrutinized fren the sta.ndpcin : Of
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their effect on the public.
Second, varicus lawsuits have been brought concerning this accident, and the determination Of whether er net an extracrdinary nuclear Occurrence has tak.en place is pertinent issues which may arise in these cases.
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The Cc
'ssion invites interested persons to submit to the Commission, within thirty days of this anncuncement, any infor-sation in their possession relevant to this deter.ination.
Submittals should, if possible, focus on the application of the Cecmission's regulations,10 CFR 140.84 and 140.85, to the consequences of the Three Mile Island, Unit 2, accident.
'"his information, alcng with other information assembled by the Cc==issicn frc= its own and ether sources, will be considered by a panel ec=pesed of Cor- 'ssien principal staff as required by 10 CFE 140.32(b).
The composition of this panel, and the detailed precedures which the Co==issicn proposes to follow, including further provision for public participation, wil' be announced at a later date.
Submittals should be sent to the Secretary of the Cc
'ssion, U.S. Nuclear Regulatcry Oc==is-sien, *1717 E Street,
N.*d.,
'iashing en, D.C.,
20555 CCNTACT:
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Backgrounc Information P00R DENR loos T S
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
(" extraordinary nuclear occurrences" - ENG) through contractual provisions terred " waivers of defenses," resulting in an essentially no-fault scheme.
These waivers were intended to expedite recovery for claims under the Price-Andersen Act in the event of an ENO.
The following is intended to explain the waiver of defenses in greater detail and to describe the criteria used by the NRC in making a finding as to whether or not an ENO has occurred.
In order to better understand the waiver provision and the concept of an ENO, an overview of the Price-Anderson Act is included.
I.
OVERVIEW 0F THE PRICE-ANDERSON ACT Under the Price-Anderson Act (which is a part of the Atcmic Energy Act of 1954) there is a system of private funds and government indemnity totalling $560 million to par public liability claims for personal injury and property damage resulting from a " nuclear incident."
The Price-Anderson Act, which expires August 1,1987, recuires licensees of large c:ctnercial nuclear pcwer plants to provide proof to the NRC that they have financial protection in the form of private nuclear liability insurance, or in scme other form approved by the Ccmmission, in an amount equal to the maximum amount of liability insurance available frem private sources.
That financial protection, Sa75 million at the time of the Three Mile Island (TMI) accident on March 28, 1979, consists of pr icary private nuclear liability insurance of $140 million provided by two insurance pacis, American Nuclear Insurers (ANI) and Mutual Atcmic Energy Liability Underwriters (MAELU) (which was increased to S160 niiiicn on.'iay 1,1979 -- exceot for TMI) and a secondary layer.
In the ever.: of a nuclear incident causing damages exceeding 5140 million, each ccm ercial nuclear power plant licensee would be charged by the insurance pools providing the insurance a prorated share of damages in, excess of the primary ir.surance layer up to 55 million per reactor per incident.
Wi::: 57 large c:cercial reactors new operating under this system, the sec:ndary insurance layer totals $335 million.
Thus, the two layers of insurance at tne time of the TMI accident totaled 5475 million.
The difference of 585 millien between the financial protection layers of
$475 r.iilion and the S560 millien liability limit established by the
" 3 ite-Andersen Act is rovided by government incemnity.
Government inda--i:y aili ;racually be pnased cut as more commercial reacters are licenset anc licensees participate in the sec nd layer of insurance.
Wher. :he primary and seconcary layers by themselves provide liacility Y
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2 coverage of 5560 million, government indemnity will be eliminated., The liability limit -- now $560 million -- would thereafter increase: i'n increments of $5 million for each new cemercial reactor licensed to operate.
II.
EXTEA0J}DINARY SUCLEAR OCCURRENCE -- GENERAL A.
Definition Webster defines the term " extraordinary" as " going beyond what is usual, regular, or customary." Viewed in this light, the recent events at Three lille Island may be tenned extraordinary, since they would not occur during normal operations at a nuclear power plant.
liowever, the term " extraordinary nuclear occurrence" (ENO) is precisely defined by the Price-Anderson Act as folicws:
The tenn " 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 Cer:nission detennines to be substantial, and which the Commissicn determines has resulted or probably will result in substantial damages to persons offsite or property offsite.
(At:mic Energy Act (as amenced), subsection lij, 42 U.S.C.
2014j)
The definition thus provides a two-pronged test:
(1) suo,stantial offsite release of radioactive material or substantial offsite radiation, and (2) substantial offsite damages.
This same section recuires that tne Commission " establish criteria in wricing" for purgdses of applying these tests to specific events.
The significance of the ENO concept is that a positive determination that an ENO has taken place must be made by the Ccmmission.'efore the
" waiver of defenses" provisions of the Act, described :elow, can apply to the accident.
In the event of a " nuclear incident" thac is declared not to be an ENO, Price-Anderson funds are still available and normal cefenses permitted under State law are not waived.
The insurance pools may dispense funds under their policies, whether or not there is a determinatien by the Cocnission of an ENO, and in certain situations at TMI have already done so.
3.
Lecislative His*ary Congre;sional reports and statements by members of Ccngress in 1966, during the :assage of the ENO and related provisions, give a clear im:ression :f Congressicnal intent.
On ene hanc, it was felt that if recovery of Price-Anderson funds were left entirely to tne statutes and
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principles of State tort law in the event of a major nuclear ac::ident, many valid claims might be tied up in the courts for years.
Cc:ngress gave particular attention to problems of varying State statu'es of limitations (seme States, for example, had not adopted the " discovery" rule for concealed injuries -- which would run the statute of limi*ations from the time the injured party knew of or reasonably should have discovered his injury). Congress was also concerned with the possibility :: hat s me States might not apply "s,tr.ict, liability" to a nuclear accident so that 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 ccmpeting factors was the " waiver" system.
Under this system the NRC could require that its licensees agree to waive certain State law defenses (contributory negligence, assumption of risk, etc.) as part of the indemnity and insurance agreements, and thus create " strict liability" through the insurance policies and indemnity agreements.
A statute of limitations would also be incorporated into these agreements, which would ccme 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, hcwever, that under such a waiver system they would be subjected to " nuisance suits."
The insurance industry felt thet it should not be required to waive the usual defenses available tu 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 acc~idents wculd not give rise to the need for quick, massive recoveries.
To meet this concern, Congress develoced the "ENO" concept.
The waiver provisiens would be activated only if an "extracrdinary nuclear occurrence" took place.
The ENO was intended to be an event causing bcth substantial offsite releases of radiation and substantial offsite damages to persens or property.
The C:mmission was given bread discreti:n (free of judicial review) to :etermine what consti.tutes an ENO, but was required by the 1966 amendments to publish written criteria which would be adopted after a public rulemaking process.
Congressional statements indicate that application of :he criteria would be relatively flexible, even thougn precise numcers (such as a 55 -illion damage figure) would be selected in the rulemaking.
There is no indicaticri that Congress intended the Ccmmission to apply its criteria in a rigid
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Still, it is equally clear that Cengress did desire a reisenably specific incex of what the Commission c:nsidered " substantial" for purposes of an ENO determinction.
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Waivers of Defenses When the Commission detennines that an ENO has occurred, then ai.y efendant must waive:
(1) any issue or defense as to the conduct of the claimant or fault of pensons indemnified, (ii) any issue or defense, as to charitable or governmental immunity, and (iii) any issue or defense based on any statute crf limitations if suit is instituted within three years froa the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof, but in no event more than twenty years after the date of the nuclear incident.
The waivers in subsection (i) relating to the fault of all persons indemnified relieve the claimant of having to crove neg'ligence by any defendant and of having to disprove defenses such as cc:ntributory negligence.
To recover for damages resulting from an ENO, a claimar t needs to prove that he was injured or damaged, the menetary amount of the dam. ages, and the causal link between his damages and the radioactive, toxic, explosive or other hazardous properties of the radioactive mateMal released.
Thus, through this "no-fault" 1.ype of provision the pri:ncipal obstacle to a claimant's recovery is no longer proving negligence.cn the part of the defendant but rather showing that his injury, or damage was. caused by the ENO.
The statute of limitations provision in subsecticn (iii) of the waivers is not intended to be more restrictive than applicable State law.
- Thus, if a State had a statute of limitations which provided that sui:s for perscnal injury or procerty damage resulting from a nuclear incident could be brought any time within 30 years after the occurrence of the incident, the 30-year statute would take precedence ov'er the 20-year period specified in the Price-Anderson Act.
Tne criteria to be used by the Commission will be fully discussed later, but at this point it should be reiterated that, unless an ENO is declared by the Ccmmission, the waivers of defenses provisions do not apply.
In such a situation a claimant would have exactly the same rights that he now has under existing tort law.
- Tne other major conceot in the 1966 amendments is that the Commissien's authori y to determine whether or not an ENG has occurred is not reviewable by the courts.
The 1966 amencments also benefited injured persons in several other resoects.
The Ccmmission was authcri::ed to rake financial assistance payments to claiman:s immediately folicwing a nuclear incident, regarcless E00R ORGNAL icos 34y
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In the event of an ENO, the 1966 amendments authorized all claimants to sue in the sa:ne 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.
Ccnsolidation of all claims resulting frem an ENO in a single Federal district court would permit all claimants to 6e" treated &qually.
Finally, the 1966 amendments modified the Act to assure that'available funds would be distributed in accordance with a court-approved plan making aopropriate al'lowance for latent injury claims if it appeared ' hat the total amount of all claims might exceed the limit on liability III.
CRITERIA FOR DETERMINING AN ENO A.
Lancuace and Structure of the Criteria For the Ccamission to make the determination that there has been an ENO both Criterion I and Criterion II as set out in the Ccmmission's published regulations (Chapter 10, Code of Federal Regulations, sections 140.34 and 140.35) must be met.
The language of the criteria (especially Criterien I) is rather technical and precise and is expressed in terms of measurements that laymen would not be expected to make themselves.
For examoie, to satisfy Criterion I the Commission must detemine that there has been a suostantial discharge or dispersal of radhactive material off the site of the reactor, or that there has been a substantial level of radiation offsite.
The Ccmmission would deternine t.at Critacion i I had been met when, as a result of an event ccmorised of one or more related happenings, radioactive material is released frcm its intended place of confinement or radiation levels occur offsite and ei ther cf the following findings are also made.
a.
The Commission finds that one or more :ersons offsite were, c uld have been, or might be exposed to radiation er to radioactive material, resulting in a dose or in a projected dose in excess of one of the levels in the folicwing table:
TOTAL PROJECTED RACIATION COSES Critical orcan Case (rems)
Thyroid 30 Whole body 20 Sone Marr:w 20 Skin 60 Other organs or tissues 30 P00RQUlmt la
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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)
Radioactiv'elmaterial'that may be taken into the body from food or from land surfaces.
(or) b.
The Commis3 ion finds that --
(1)
As the result of a release of radioactive material frem a reactor there is at least a total of any 100 square 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, of (2)
As the result of a release of radioactive material in the course of transportation surface contamination of any offsite property has occurred.
This contamination must show levels of radiaticn in excess of one of the values listed in column 2 of the following table.
U TOTAL SLRFACE CONTAMINATION LEVELS-Column 1 Column 2 Utility's property beyond Type of the fence surrounding the Other offsite emitter reactor station.
property Alpha e. mission 3.5 microcuries per square 0.35 microcuries from transuranic meter per square meter isotopes Alpha e. mission 35 microcuries per square 3.5 microcuries from isotopes meter per square meter c:her than transuranic isotopes Be ta e r gar =a 40 millirads/ hour at a millirads/ hour e =issien 1 cm. (measured througn at 1 cm.
(measured not more tnan 7 milli-through not mere that grams per scuare centi-7 milligrams per meter of total absorber) square centimeter of total absorber)
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he max 1=um levels (acove tackground), observed or projected, 8 or core hours after initial deposition.
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Based on the information available to the NRC staff at ttis 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 wnole body dose to a person in a populated area offsite has been calculated to be 100 millirems.
For the most part, property contamination leveh measured approximated
" minimum detectable activity" levels.
If the Comission deternines that an event satisfied Criterion I, Criterion II must then be applied.
If Criterion I canno reasonably be met, the Commission would conclude that there has not been an ENO.
Criterion II.
is satisfied if the Ccemission makes any cf 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 showing objective clinica 7 evidence of physical injury frcm exposure to the radicactive, toxic, explosive or other hazardous properties the reactor's nuclear material; g (2)
$2,500,000 or more of damage offsite has been or will probably be sustained by any one person, cm $5 million or more of such damage in total has been er,dil procaoly be sustained, as the resuit of such event; g (3)
The Comission finds that $5,000 or more c:" damage offsite has been or will probably be sustained by tach of 50 or more persons, provided that $1 million or =cre of such damage in total has been or will probably tbe sustained, as the result of such event.
Tha term " damage" refers to damage arising out of or resu'J ting fr:m :he radioactive, toxic, explosive, or other hazardous proper-ies of the reactor's nuclear material, and shall be based upcn estima:es 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 pract:ical to restore to use, (t)
- inancial loss resul:ing fr:m rotective a.ctions such as evacuation, appropriate to recuce or avoid exposure to radiation or to radioactive materials.
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-Sased on the information available to the NRC staff at this time, the only category of Criterion II damages possibly satisfied by the Three Mile Island accident is defined by (4), namely financial loss resulting. frem 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 se doing incurred expenses.v. The insurance pools have been compensating the expenses of these families. 'Many others evacuated the ares 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 rula and accompanying explanation appeared in the Federal Recister (33 Fed. Rec. 6978).
Following a period of public commen:, :ne final rule was published on September 1,1968 with an effective date of December 1, 1968 (33 Fed. Rec. 15g98).
The dual criteria contained in the final rule were designed to follow the language of the 1966 amendments to the Act in defining an ENO:
there must be a substantial offsite release and substantial offsite damages.
The specific values incorporated into tha 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 Enargy Ccmmission's best judgment in deciding when the Act's definition of an ENO had been satisfied.
The criteria have remained unchanged since their adoption in 1968.
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