ML19224A800
| ML19224A800 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/02/1979 |
| From: | Harold Denton, Shapar H Office of Nuclear Reactor Regulation, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| SECY-79-235, NUDOCS 7905300403 | |
| Download: ML19224A800 (15) | |
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For:
Tha. Comissicners Frcm:
Harold R. Denton, Director Office of Nuclear Reactor Regulation Hcward K. Shacar Executise Legal Director Thru:
Lee V. Gossick Executive Director for Operations
Subject:
POSSIBLE CETERMINATION OF AN EXTRA 0RDINARY NUCLEAR OCCURRENCE AT THREE MILE ISLAND UNIT 2 Purcose:
To advise the Ccmmission of scrce decisions that will need to be made in the immediate future regarding the application of the Price Anderson Act to the Three Mile Island Unit 2 accident.
Discussicn:
Any claims for offsite perscnal or procerty damages resulting frca the Three Mile Island accident will generally be governed by the Price Anderson Act (principally secticn 170 of the Atonic Energy Act).
Liability for damaces is governed by State law, ar.d traditicnal legal defenses against liability (such as contributcry negligence) would ordinarily, if anclicable under State law, be available to the defendant (most 1ikely, the licensee and its vendors).
Howeve,
in the event the Ccemission should determine that the accident is an " extraordinary nuclear occurrence" (ENO) (defined in section lij of the Act), then the so-called " waivers of defenses' provisions of section 170n of the Act ccme into play.
The ENO orovisions of the Act were accea in 1965 but since then there have been no occasions
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, In imolementing section 170n the Comission has incorporated provisicns in its indemnity agreements executed with its reactor licensees and required incorporation of provisions in insurance policies furnished by these licensees as proof of financial pro-tection, which waive (1) any issue or defense as to conduct of the claimant cr fault of persons indemnified; (2) any issue or defense as to charitable or governmental ir= unity; and (3) any issue or defense based on any statute of limitations if suit is instituted within three years frcm the date on which the claimant first knew, or reasonably could have known, of his injury, but in no event more than twenty years after the nuclear incident.
The net effect is that if the Commission detemines that the Three Mile Island accident is an ENO, certain possible legal obstacles to successful.offsite perional or property damage claims will be removed.
However, even if a determination is made that an EN0 has taken place, the waiver of defenses provisions have certain limitations in their applicability.
The waivers do not preclude a defense based upcn a claimant's failure ~to take reasonable steps to mitigate damages, nor do they apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results frcm a nuclear incident inten-tionally and wrongfully caused by the claimant.
The waivers also co not apply to injury to a claimant who is employed at the site of and in connecticn wi th the activity where the extraordinary nuclear occurrence takes place if banefits therefor are either oayable or required to be provided under any workmen's compensation or occupational disease law.
Finally, an ENO determination does not crevent the defendant frcm contesting the nature anc extent of the claimant's damages or wnether the damages were in fr.ct sustained as a result of the accident.
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. The Comission's cetermination as to whether an ENO has taken place wculd be dependent ucon tne following two findings:
(1) that there has been a substantial discharge of radioactive material or substantial radiation levels offsite, and (2) that substantial damages to persons or pro-perty offsite have occurred.
Sections 140.84 and 140.85 of the NRC's regulations provide in detail tht criteria for making these findings.
These criteria are quantitative in nature.
The first finding would be made if one or more persons offsite were, could have been or might be exposed to doses in excess of specified values (e.g., 20 rem to the wnole bcdy or 30 rem to the thyroid) o" if there has been offsite surface contaminatioEf at least 100 square meters characterized by adiation levels in excess of specified values (e.g., 4 millirads/
hou: at one cm, beta or gamma, at affsite property not owned or leased by the licensee).
The second finding would be mace based on specified levels of damages (e.g., death or hospitalization within 30 days of five or more offsite people showing objective clinical evidence of injury frcm exposure to hazardous properties of radioactive materials, or 55 million or more of damage offsite has been or will probably be sustained on the aggregate).
These criteria, as well as entire Subpart E of Part 140 of the regulations dealing with the determination of an ENO, are included in Attachment " A."
The Comission's determination as to whether an ENO has taken place is not ubject to judicial review.
The regulations in 10 CFR 140.82 provide that the Ccmission may initiate, on its cwn motion, the making of a determination as to whether or not there has been an ENO.
In the event the Ccmmission dces not initiate the making of a determination, any affected person, or any licensee with whom an indemnity agreement is executed, or any ::erson providing financial protection may ::etition the Comission for a deternination of whether or not there has been an EMO.
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10 CFR 130.82 states that if the Commission does not have, or does not expect to have, within 7 days after it has received notification of an
" alleged" event, enough information available to make a determination that there has or has not blen an EN0, the Commission will publish a notice in the Federal Register setting forth the date and place of tne " alleged" event and requesting any perscns having knowledge thereof to submit their information to the Commission. Hcwever, these regulations are unclear as to the exact circum-stances under which the Ccmmission must publish the notice in the Federal Register.
The better reading seems to be tnat tne ooligation to publish notice in 7 days only applies when the Commission receives notice of an alleged event it had not previously been informed about, and does not apply when the Ccmmission kncws of the event frca the onset.
Thus, the better reading is that no notice is required in the case of the Three Mile Island accident.
Nevertheless, the regulations could be read to require notice in all cases where the Commission is uncertain after 7 days whether an ENO has taken place.
The determinaticn is not subject to judicial review.
There are a number of options here.
The Ccm-mission could publish the notice within 7 days, (this Wednesday, April 4) that it is consider-ing making an EN0 determination, and recuesting data and comment within a specified period (say, 60 days). This would begin the process early and facilitate an early ENO determination while still providing for public input.
Some of the data that would be useful in making an ENQ determination would need to be gathered during or shortly after the accident, and an early notice would alert people to this fact. On tne other hand, sucn an early notice could cause some confusion, or get " lost" in the course of other news concerning the accicent.
Also, sucn an early notice might be regarded as premature if the accident has not fully run its course.
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Alternatively, the Cc=nission could delay publication of any notice until a short oeriod of time after the accident has run its course.
This would reduce confusion and focus greater attention en the precise nature of the notice.
On the other hand, there are obvious advantages to infoming the public early of the kinds of data that are relevant to an ENO determination.
Also, an earlier notice is arguably required by the regulations (as indicated, this does not appear to be the better reading oi' the regulations).
The Comission could also publish no notice, and simply make an ENO detemination itself after gathering the necessary data.
At present (,'oonday, April 2), the data is limited and the accident has not run its course.
This suggests that the infomation now available is insufficient to enable the Comission to detamine now whether an ENO has occurred. The insurance pools have already set up an office in Harrisburg and are making emergency claims payments, notwith-standing any ENO determination by the Commission.
Recomendation:
NRR and ELD recomend that the Commission consider these options at an early Ccmmission meeting.*
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/ Harold R. Centon Di rector Office of Nuclear Reactor Regulation h
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.cward K. Shapar Executive Lecal Directcr SECY N06::
ine General Counsel subscribes to the alternative course of
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action of delay by the Comission until an acprcpriate time in the future.
He will prepare an additional paper for the Comissicn's consideration.
Commissioners' comments should be provided directly to the Offics of the General Ccunsel by c.o.b. Wednesday, April a,1979.
DISTRIBUTICN Ccemissioners Ccmissicn Staff Offices Exec Dir for Operaticns genal Office
}68
}27 Secretariat
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ATTACHMENT A 5 140.31 Scoce and purpose.
(a) Scoce.
This subpart applies to applicants for and holders of licenses authorizing operaticn of production facilities and utilizaticn facilities, and to other persons indemnified with respect to such facilities.
(b)
Purcose.
One purpose of this subpart is to set forth the criteria which the Commission proposes to follow in order to determine whether there has been an " extraordinary nuclear occurrence."
The other purpose is to establish the conditions of the saivers of defenses proposed for incorporation in indemnity agreements and insurance policies or contracts furnished as proof of financial protection.
(1)
The system is to come into effect only where the discharge or dispersal constitutes a substantial amount of source, special nuclear or byproduct material, or has caused substantial radiation levels off-site. 'The various limits in present NRC regulations are not appropriate for direct application in the determinaticn of an " extraordinary nuclear occurrence," for they were arrived at with other purposes in mind, and those limits have been set at a level which is conservatively arrived at by incorporat;ng a significant safety factor.
Thus. a discharge or dispersal which exceeds the limits in NRC regulations, or in license conditions, although possible cause for concern, is not one '
-h would be expected to cause substantial injury cr damage unless it exceeds by some significant multiple the approcriate regulatory limit.
According~
ly, in arriving at the values in the criteria to be deemed " substantial" it is more apercoriate to adopt values se::arate from NRC health and safety regulations, and, or course, the selection af these values will not in any way affect such regulations.
A substantial cischarce, for purpcses of 168 128
2-the criteria, represents a perturbation of the environment which is clearly above that which could be anticipated from the conduct of normal activities.
The criteria are intended solely for the purposes of administration of the Commission's statutcry responsibilities under Public Law 89-645, and are not intended to indicate a level of discharge or dispersal at which damage to perscns or procerty necessarily will occur, or a level at which damage is likely to occur, or even a level at which some type of protective action is indicated.
It should be clearly understood that the criteria in no way establish or indicate that there is a specific threshold of expcsure at which biological damage frca radiation will take place.
It cannot be emphasized too frequently that the levels set to be used as criteria for the first part of the determination, that is, the criteria for amounts offsite orradiationlevelsoffsitewhicharesubstantial,arenot.7.eantto indicate that, because such amounts or levels are desermined to t:e substantial for purposes of administration, they are " substantial" in terms of their propensity for causing injury or damage.
(2)
It is the purpose of the secona part of the determination that the Commission decide whether there have in fact been or will probably be substantial damages to persons offsite or property offsite.
The criteria for substant'al camages were for ulated, and the numerical values selected, en a wholly different basis frcm that on which the criteria used for the first part of the determination wi'h respect Oc 168 129
substantial discharge were derived.
The only interrelation between
.the values selected for the discharge criteria and the damage criteria is that the discharge values are set so low thet it is extremely un-likely the damage criteria could be satisfied unless the discharge values have been exceeded.
(3)
The first part af the test is designed so that the Commission can assure itself that something exceptional has occurred; that scmething untoward and unexpected has in fact taken place and that this event is of sufficient significance to raise the possibility that scme damage to persons or property offsite has resulted-or may result.
If there appears to be no damage, the waivers will not apply because the Corraissicn will be unable, under the second part of the test, to make a determination that " substantial damages" have resulted or will probably result.
If damages have resulted or will probably result, they could vary from de minimis to serious, and the waivers will not apply until'the damages, both actual and probable, are determined to be " substantial" within the second part of the test.
(4)
The presence or absence of an extraordinary nuclear occurrence determination does not conccmitantly determine whether or not a particu-lar claimant will recover on nis claim.
In effect, it is intended primarily to determine whether certain potential obstacles to recovery are to be re=cved from the route the claimant would ordinary folicw to seek compensation for his injury or damage.
If there has not been an 160 130
_a.
extraordinary nuclear occurrence determination, the claimant must pro-
~ceed (in -the absence of settlement) with a tort action subject to whatever issues must be mel, and whatever defenses are available to the defendant, under the law applicable in the relevant jurisdiction.
If there has been an extraordinary nuclear occurrence determination, the claimant must still proceed (in the absence of settlement) with a tort action, but th2 claimant's burden is substantially eased by the elimination of certain issues which may be involved and certain defenses which may be available to the defendant.
In either case the defendant may defenc with respect to such of the folicwing matters as are in issue in any given claim:
The nature of the claimant's alleged damages, the causal relaticnship between the event and the alleged damages, and the amount of the alleged damages.
! 1a0.82 Procedures.
(a)
The Ccmmissicn may initiate, on its cwn motion, the making of a determination as to whether or not there has been an extraordinary nuclear cccurrence.
In the event the Ccmmission does not so initiate the making of a determination, any affected person, or any licensee or perscn with whcm an indemnity agreement is executed or a person providing financial protection may petition the Ccmmissicn for a determination of whether or not there has been an extraordinary nuclear i68 13I
_5 occurrence.
If the Commission does not have, cr does not expect to have, within 7 days after it has received notification of an alleged event, enough information available to make a determination that there has been an extraordinary nuclear occurrence, the Ccmmi'ssion will publish a notice in the FEDERAL RECISTER setting forth the date and place of the alleged event and requesting any persons having kncwledge thereof to submit their information to the Commission.
(b) When a procedure is initiated under paragraph (a) of this section, the Ccmmission will designate members of the principal staff to begin immediately to assemble the relevant information and prepare a report on which the Ccmmission can make its determination.
5 140.83 Cetermination of extraordinary nuclear occurrence.
If the Ccmmission determines that both of the criteria set forth in 55140.84 and 140.85 have been met, it will make the determination that there has been an extraordinary nuclear occurrence.
If the Commission publishes a notice in the FEDERAL REGISTER in accordance with ! 140.82(a) and does not make a determinatt'n within 90 days thereafter that there has been an extraordinary nuclear occurrence, t.1e alleged event will be deemed not to be an extraordinary nuclear cccurrence.
The time for the making of a determination may De ex-tended by the Ccmmission by notice publisned in the FEDERAL REGISTER.
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s 140.84 Criterion I--Substantial discharge of radioactive material or substantial radiation levels offsite.
The Cc=nission will determine that there has been a sut tial discharge or dispersal of radioactive material offsite, or that there have been substantial levels of radiation offsite, when, as a result of an event comprised of one or more related i.appeninos, radioactive material is released frcm its intended place of ccnfinement or radiation levels occur offsite and either of the folicwing findings are also made:
(a) The Commission finds that cne or more perscns offsite were, could have been, or mignt be exposed to radiaticn or the radioactive material, resulting in a dose or in a projected dose in excess of one of the levels in the following table:
TOTAL PROJECTED RADIATION COSES Critical orcan Cose (rems)
Thyroid...................
30 Wholebody...................................................
20 30n0 Marrow..................................................
20 Skin...................................................
50 Other organs or tissues...............................
30 1 6 8
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Exposures frc;.1 the following types of sources of radiation shall
'be included:
(1)
Radiation frcm sources external to the bcdy; (2)
Radioactive material that may be taken into the bcdy frcm its occurr ence in air or water; and (3)
Radioactive material that may be taken into the body frcm its occurrence in food or cn terrestrial surfaces.
(b)
The Commission finds that--
(.1 Surface contamination of at least a total of any 100 square meters of offsite property has occurred as the result of a release of radio-active material' frca a producticn or utilization facility and such contaminaticn is characterized by levels of radiation in excess of one of the values listed in column 1 cr column 2 of the folicwing table, or (2)
Surface contamination of any offsite property has cccurred as the result of a release of radioactive material in the course of trans:ortation --
and such contamination is characterized by levels of radiaticn in excess of cne of the values listed in column 2 of the folicwing table:
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I TOTAL SURFACE CCNTAMINATICN LEVELS Column 1 Column 2 Of fsite property, ccntigucus to site, Type of owned or leased Other offsite emitter by person with property whom an indemni ty agreement is executed Alpha emission frcm 3.5 0.35 transuranic ~
microcuries per square microcuries per isoptopes meter.
square meter Alpha emission from 35 3.5 isotopes other than microcuries per square microcuries per transuranic meter.
square meter.
isotopes Beta or gamma 40 millirads/ hour 01 cm.
4 millirads/ hour 01 emission (measured through not cm.
(measured more than 7 milligrams through not more than per square centimeter 7 milligrams per of total absorber).
square centimeter of total absorber).
1The maximum levels (above background), cbserved or projected, 8 or more hours af ter initial deposition.
5 120.85 Criterion II--Substantial damages to persons offsite or property offsite.
(a) After the Ccmmission has determined that an event has satisfied Criterion I, the Ccmmission will determine that the event has resulted or will probably result in subscantial damages to persons offsite or property offsite if any of the follcwing findings are mede:
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-9 (1)
The Ccmmission finds that such eveat has resulted in the death ior hospitalization, within 30 days of the event, of five or mcre people located offsite showing objective clinical evidence of physical injury frcm exposure'to the radioactive, toxic, explosive, or otaer hazardous properties of source, special nuclear, or byproduct material; or (2)
The Commission finds that $2,500,000 or more of damage offsite has been or will' probably be sustained by any one person, or 55 million -
or more of such damage in the aggregate has been or will probably be sustained, as the result of such event; or (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 the aggregate has been or will probably be sustained, as the result of such event.
(b)
As used in paragraphs (a) (2) and (3) of this secticn, " damage" shall be that arising out of or resulting from the radioactive, toxic, explosive, er other hazardous properties of source, special nuclear, or byproduct material, and shall be based upcn estimates of cne or more of the folicwing:
(1)
Total cost necessary to put affected property back into use,
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(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 appropriate to reduce or avoid exposure to radiation or to radioactive materials.
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