ML20206M657

Price-Anderson Negotiated Rulemaking - Position Statement of NRC Staff

ML20206M657
Person / Time
Issue date:	11/07/1988
From:	Treby S NRC
To:
References
FRN-53FR40233, RULE-PR-140 NUDOCS 8812010185
Download: ML20206M657 (41)

Text

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DOCKET NUMBER DD l j

NOV 0 71988 PROPOSED R l.E EDl9 ma3f s ,

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'88 NOV -7 P4 :16 l g PRICE-ANDERSON NEGOTIATED RULEMAKING - POSITION STATEMENT OF THE NRC STAFF j

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Introduction l

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For purposes of the negotiated rulemaking required by Section 19 of the [

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Pice-AndersonAmendmentsActof1988("AmendeentsAct")(AppendixA),the j follo e ; statement sets forth the position of the U.S. Nuclear Regulatory i Commission staff ("NRC Staff") on the issue of whether the Comission should 1

enter into inderrnity agreements with persons licensed by the Comission or by  ;

1 an Agreerrent State for the manufacture, production, possession, or use of I a i

! radioisotopes or radiopharmaceuticals for medical purposes  !

. i j ("radiophamaceutical licensees"). The Ccm ission has designated Mr. Stuart A. Treby. Assistant General Counsel for Rulemaking and Fuel Cycle to serve as (

its negotiator in this proceeding. (

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I f l Interest and_ Scope (

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i Under Section 81 of the Atomic Energy Act of 1954, as amended (the "Act"). the i

1 l Comission is authorized to issue licenses for the medical use of byproduct f I

material. The Cce ission has under license approximately 1800 medical l F

tr.stitutions. 500 private practitioners. 20 mobile medical services. 300 j j teletherapy services.100 in-vitro blood testing labs. 40 nuclear pharweies. I i I j 10 radiophamaceutical manufacturers, and 10 rr.anufacturers of sealed sources t for medical purposes. t i

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-2 Under section 170a of the Act, financial protection and government indemnity are mandatory for activities involving the construction and operation of production and utilization facilities (The part of the Atomic Energy Act, comonly known as "Price. Anderson" is attached as Appendix B. This appendix ,

is a copy of the. pertinent sections of the Act showing comparative text before andaftertneAmendmentsAct.) Section 170a. also provides the Comission ,

with the discretion to require financial protection of, ar.d to extend indemnity coverage to, other activities licensed by the Comission. The I

Comission has only exercised this discretionary authority to require

, financial protection of, and extend indemnity coverage to, certain persons licensed to possess or use plutonium in plutonium processing and fuel fabrication activities.

Agreerent States Section 170a. of the Act limits the Comission's authority j to require financial prottetion of, and extend indennity coverage to, perscas licensed under sectiens 53, 63, 81,103,104, or 185 of the Act. Section 274b. of the Act authorizes the Commission to enter into an agreenent with any j State ("Agreenent State") providing for the discontinuance of the Comission's i regulatory authcrity with respect to (1) byproduct materials. (2) source material, and (3) special nuclear material in quantities not sufficient to l fom a critical mass. The Comission has entered into such agreement 3 with 29 l States. Within the Agreement States, the licensing of the medical use of byproduct material is within the authority of the State and not the -

Comis sion. Agreerent State licensees are not licensed under sections 53, j I 63, 81,103,104, or 185 of the Act, and the Ccmission dces not have the

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,1 legal authority under section 170 of the Act to require financial protection 1

i j of, and extend indemnity to, "radiopharmaceutical licensees" of an Agreecent  ;

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State. Although the A;nendments Act does not provide any explicit j i

) authorization for the Cosnission to indemnify Agreement State licensees, the [

scope of the negotiated rulemaking under Section 19 of that Act extends to

"persons licensed by the Comission or by an Agreement State...." Emphasis added. The NRC staff believes that the legislative history of the Amendments 1

Act is ambiguous on whether Section 19 provides the Commission with the

implied authority to indemnify Agreement State licensees. Resolution of this i

, ambiguity will be required if indemnification is found necessary. However,

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j the NRC Staff recorrends that the negotiating comittee first address the issue of wheth r 1rdemnification is necessary for any type of f

l "radiopharnaceutical licensee," and defer consideration of the statutory l >

authority issue until later in the proceeding, i i

I NARM Naturally-occurring and accelerator-produced radioactive materials j (NARM)arealsousedinmedicalapp10:ations. Because the Comission has no licensing or other regulatory juris ,1ction over NARM for medical use, any l personal injury or property damage caused by the accidental release of such j

l radioactive material would not arise out of, or result from, a "nuclear 1

f ircident" under the Act a=id, therefore, could not result in "public liability" 1

j as that term is defined in zhe Act. Thus, such damage would not be covered by j an indemnity agreement executed by a "radiopharmaceutical licensee" with the Commission, and is not within the scope of the negotiated rulemaking.

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4 Scope of Liabi13 The scope of the negotiated rulemaking siiould be censistent with the type of liability covered under the Price-Anderson Act.

Tne Price-Anderson Act limits indemnificat'on to "public liability " which is any legal liability arising out of, or resulting from, a "nuclear incident."

l l This is an occurrence within the United States causing bodily injury, 1

sickness, disease, death, loss of or damage to property, or loss of use of l

1 property resulting from source, special nuclear, or by product material. ,

Public liability does not include the worbnen's compensation claims of '

employees at the site of, and in connection with, the activity whe'e the nuclear incident occurs; claims arising out of an act of war; or claims for loss of, damage to, or loss of use of property which is located at the site of, and used in connection with, che licensed activity where the nuclear incident occurs. Furthermore, the legislative history of Section 19 of .*

Amendments Act indicates that claims arising from nalpractice or misadministration, or product liability, should not be within the scope of the rulemaking.

Score of Licensees Covered The types of licensees within the scope of the rulemaking should be determined first, by reference to Section 19 nf the Amendrents Act, and second, by requests for participation in the rulemaking proceeding. The NRC staff anticipates that the following types of licensees would be eligible for consideration in this rulemaking --

o r.anufacturers of radiopharraceuticals or radioisotopes for medical use

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5-o medical users (e.g. those liceisees such as private practitioners, clinics, hospitals, or laboratories who use radioisotopes or j radiopharmaceuticals for rneoical purposes) o nu: lear phamacies j If indennification is provie.ed to any of these fecilities, the Price-Anderson Act would also extend indemnification coverage to the transportation of radioactive materials to, and f ron, such facilities.

Amount of Coverage and Financial Protection If it is determined that the Comission should indennify "radiopharmaceutical licensees" licensed pursuant to section 81 of the Atomic Energy Act of 1954, as acended. Section 170c. of the Act requires that the Comission must provide indemnity cover.ge in the amount of $500,000,000. The scope et the rulemaking should include consideration of whether coverage in such amount is warranted. And if not, wtiat arount of coverage would be appropriate.

Furthemore, pursuant to section 170b. of the Act, the Comission ruay require that such licensees have and raintain some arount of financial protection of the type specified in that section, such as self-insurance. The scope of the riegotiated rulemaking should include consideration of whether such licensees

,hc.uld have and maintain see amount of financial protection, and if so, what arount wculd be appropriate.

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L l Under section 170f., the Comission is authorized to collect a fee ' tom all persons with rhom an indemnity agreement is executed. If it develops that the f i t

Comission should indemnify "radiopharmaceutical licensees," the scope of the  :

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i negotiated rulemaking riust incluae consideration of the amount of the fee to  !

i I be chaeged to such licensees.

l Nature and extent of risk to public health and safety l 4  :

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For the interests potentially affected by this rulemaking, the NRC staff has .

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identified the number of licenses issued oy the Comission, and has estimated 4

the byproduct raterial inventory at typical licensee facilities (see Table !). f The regulation of emissions of radioactive materints in normal oprations by j the facilities of concern identified above (manufacturers, medical users, or  !

l phamacies) is governed primarily by the Comission's regulations in 10 CFR I

Part 20. C itance with these regulstions is designed to prevent adverse l health effects from the release of radioactive materials from normal I

operations, j

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I i i t l Based on the estimate of the inventories in Table I, the shors half-lives of j I

most of the radioisotopes in those inventories, and the likelihood of an l j accident at the facility of a "i uitophamaceutical licensee", the NRC staff

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believes that there is no undue risk to pubite health and safety from the (

"radiophamaceutical licensee" activities.

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- 7-l The NRC staff would note that it is not aware of any instance where a "radiopharmaceutical licensee" has been held liable to date for damages due to j the release of redioactive materials through nomal operations or tander j t

accident conditions. t P

Insurance Availability for the Medical Uses of R;dioisotopes  !

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Two types of radioisotopes are used in the diagnosis and treatment of various i i

medical conditions -- seeled sources and radiopharmaceuticals. Sealed sources l are manufactured by about 10 U.S. coepanies licensed by the Comission or f Agreement States. Thesecompaniespurchaseennmercialgeneralliability(CGL) l insurance from Medmarc, an industry-owned and controlled risk retention group comprising over 400 companies manufacturing in-vitro and medical device products. Although CGL insurance policies contain a "broad-form nuclear exclusion" provision for damages resulting from a "nu, lear facility", this provision would not exclude coverage l'or offbite bodily injury or property damage arising out of radioisotopic exposure from "radiopharmaceutical licensees", because they do not fall within the definition of "nuclear f facility",

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Sealed source manufacturers are relatively small companies. However, radiophamaceutical ranufacturers are divisions within scoe of the larger  ;

phamaceutical companies in the world such as Squibb Hoffman LaRoche, and DuPont. The radiophamaceutical business t f these ccrpanies is but a small nm mw-m- w w ~r,wwmenw- ven. ee--w we

8 percentage of their overall sales. While it is difficult to obtain specific information, the NRC staff understands that most of these nanufacturers self-insure both their third party liability and product liability risks. A  !

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few of these companies also buy excess insurance above their , elf-inn.*ance  ;

limits. The one exception of which the NRC staff is aware, however, is Mallinckrodt, one of the larger radiophamaceutical manufacturers which also i

operates 4 number of radiophamacies. Mallinckrodt maintains CGL insurance. l l

i In addition to the radiophamaceutical mar.wfacturers, the radiopharmaceutical industry also includes radiopharmacies. These facilities receive bulk shipments of radiophamaceuticals from manufacturers and repackage them Sto 1

j patient doses. There are approximately 125 of these facilities nationwide.

Although some of the radiophamacies may currently be purchasing CGL insurance r for their activities, nene of the property-casucity insurance companies that i

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) the NRC staff recently contacted is writing, or has ever been approached to write, CGL policies with radiephamicies. A number of these lnsurers did 4

i exprcss an interest, however, in evaluating whether to write this type of i coverage. In fact, there are excess and specialit,Y insurance F.arkets that exist to specifically underwrite this type of risk. It is for this very reason that the nuclear liability insurance pools will not offer nuclear  !

liability insurance to radiophamacies. The pools' philosophy is to not offer ;

nuclear liability insurance to a particular company or segment of an industry  :

l if insurance can be purchased from conventional markets. The NRC staff has l

I been infomed by the insurance cccpanies it contacted that most hospitals and I l

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clinics using radioisotopes to diagnose end treat patients are purchasing CGL insurance policies.

_ Position l

The regulation of emissions of radioactive materials in nomal operations by the facilities of concern identified above (manufacturers, medi:al users, or phamacies) is governed by the Comission's regulations in 10 CFR Part 20.

Compliance with these regulations is designed to prevent adverse health l effects from the release of radicactive materials from nomal operations.

Based on the estinate of the inventories in Table I, the short half-lives of most of the radioisotopes in those inventories, and Je likelihrod of an accident at the facility of a "radia.oharmaceutical licensee," the hRC staff believes that there is no undue risk to public health and safety

• rom "radiopharmaceutical licensee" activities. Furthernore, eyet in the unlikely event that such an accident occurs, any potential liability for offsite damage resulting from such an accident would be within the insurance coverage that the NRC staff believes is available. Therefore, it is the NRC staff position that it is not necessary to ertend the goverrcent indemnification coverage of Section 170a. of the Act to ".dMi.maceutical licensees."

One of the primary objectives of the Price-A'derson Act was to temove the deterrent to private sector participation in etcaic energy activities presented by the threat of potentially enomous high liebility claims in the

svent of a catastrophic nuclear accident. The NRC staff believes that this objective retains its vitality for application to the issue of whether "radiopharmaceutical licensees" should be indemnified. In addition to demonstrating that cormercial insurance is unavailable, the NRC staff believes that those supporting indemnification must also demonstrate that indemnification is necessary to maintain participation in the radiophamaceutical industry in order to ensure that the public will not be deprived of radiophamaceu+4 els. In this regard, the NRC staff would note that it is not aware of any .nstance where a "radiopharmaceutical licensee" teased op3 ration because of the threat of uninsurable liability. ,

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b Stuart A. Treby  !

NRC Negotiator t

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ACTIvt NRC stA0lersdeactVTacAt LICEMMS Bf PnUGRM fCiM

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i isttate of Carles in Inventory at a Typical Licer.se* ,

Readily Dispersible Not Readible Olspersible 1 Program Total fSeptember 1988) t Code Other

) Tc-99m I-131 1-125 H-3 C-14 diag. Mo-99 i-125 Ir-192 Cs-137 R4-226 Sr-99 Co-60 Cther e 01100 41 Academic 2ype A Broad Scope .1 10 1 .1 .1 j e 02110 114 Medical Type A Broad Scope 1 .1 .1 10 1 .1 1 .1 .1 .1 .1 .1 o 02120 1418 Full service community hospital .1 .1 .I 1 .1 .1 .1 0 02121 15 Limited service community lespital .1 .1 .1 i

o 02200 243 Full ser: Ice private practice .1 .1 o 02201 213 timited service private practice .1 .1 o 02209 77 Limited service private practice (35.31) .001 0 02216 52 Sr-90 Eye applicator 5

.01 0 02220 20 Moblic nuclear medicfne 1 .1 .1 1 I o 02300 251 Teletherapy 10000 o 02500 45 Nuclear Pharmacy 10 1 1 10 o 02510 2 Suppliers for program code 02209 .1 0 02511 4 Radiapharmaceuticals suppiter 1 1 1 o 02512 t' Radiopharmaceuticals, generator.;. kits supplier 1000 100 100 1000 i o 02513 9 Source and desIce septier 100 100 10 l

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] These are order of magnitude estinatas by MRC staff, Amounts less than 0.1 curie

] are not reported unless that is the only for a program code.

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N K MWJpagA PUBLIC LAW 100-408 SEC. 19. NEGOTIATED RULEMAXING ON FINANCIAL PROTECTION FOR RADI0 PHARMACEUTICAL LICENSEES.

(a) RULEMAXING PROCEED!t'G.--

(1) PURPOSE.- The Nuclear Regulatory Comissien (hereafter in this section referred to as the "Comission") shall initiate a proceeding, in accor-dance with the requirements of this section, to determine whether to enter into indemnity agreements under section 170 of the Atomic Energy Act of 1954(42 U.S.C. 2210) with persons licensed by the Comission under section 81,104(a), ,

or 104(c) of the Aterte Energy Act of 1954 (42 U.S.C. 2111, 2134(a), and

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2134(c)) or by a State under section 274(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2021(b)) for the manufacture, production, possession, or use of radioisotopes or radiopharmaceuticals for medical purposes (hereafter in this section referred to as "radiopharmaceutical ifcensees").

(2) FINAL DETERMINATION.- A final determinatinn with respect to whether radiopharmaceutical licensees, or any class of such licensees, shall be indemnified pursuant to section 170 of the Atomic Energy Act of 1954 (42 U.S.C. 2210) and if so, the terms and conditions of such indennification, shall be rendered by the Comission within 18 months of the date of the enactment of this Act.

(b)NEGOTIATEDRULEVAKING.--

(1) ADMINISTRATIVE CONFERENCE GUIDELINES.- For the purposa of makir.g the determination required under subsection (a), the Comission shall, to the extent consistent with the provisions of this Act, conduct a negotiated rule-making in accordance with the guidance provided by the Administrative Confer-ence of the United States in Recomendation 82-4, Procedures for Negotiating Proposed Regulations" (42 Fed. Rag. 30708, July 15, 1982).

(2) DESIGNATION OF CONVENER.- Within 30 days after the date of the enactment of this Act, the Commission shall designate an individual or indi-viduals recommended by the Administrative Conference of the United States to serve as convener for such negotiations.

. NEGOTIATED RULEMAKING

(3) SUBMISSION OF THE RECOMMENDATIONS OF THE CONVENER.- The convener shall, not later than 7 months after the date of the enactment of this Act, submit to the Commission recommendations for a proposed rule regarding whether the Commission should enter into indemnity agreements under section 170 of the Atomic Energy Act of 1954 (42 U.S.C. 2210) with radiopharmaceutical licensees and, if so, the terms and conditions of such indemnification. If the convener recommends that such indemnity be provided for radiopharmaceutical licensees, the proposed rule submitted by the convener shall set forth the procedures for the execution of indemnification agreements with radiopharmaceutical licensees.

(4)PUBLICATIONOFRECOMMENDATIONSANDPRCPOSEDRULE.-Iftheconvener recommends that such indemnity be provided for radiopharmaceutical licensees, the Commission shall publish the recommendations of the convener submitted under paragraph (3) as a notice of proposed rulemaking within 30 days of the submission of such recommendations under such paragraph.

(5) ADMINISTRATIVE PROCEDURES.- To the extent consistent with the pro-visions of this Act, the Commission shall conduct the proceeding required under subsection (a) in accordance with section 553 of title 5. United States Code.

NEGOTIATED RULEMAKING

a flRC. ff4btX $

THE PRICE-ANDERSON ACT, AS REVISED BY PUB. L. 100-XXX LComparativeText]i/

"Price-Anderson Amendments Act of 198PZ

[42U.S.C.2014]

SEC. 11. DEFINITIONS.-- The intent of Congress in the definitions as given in this section should be construed from the words or phrases used in the definitions. As used in this Act:

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j. The term "extraordinary nuclear occurrence" means any event causing a discharge or dispersal of Source, special nuclear, or byproduct material from its int (nded place of confinement in amounts offsite, or causing radiation levels offsite, which the Nuclear Regulatory Comission or the Secretary of Energy, as appropriate, determines to be substantial, and which the Nuclear Regulatory Comission or the Secretary of Energy,y appropriate, detemines has resulted or will probably result in substantial damages to persons offsite or property offsite. Any detemination by the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, that such an event has, or has not, occurred shall be final and conclusive, and no other official or any court shall have power or jurisdiction to review any such detemination. 1he huelear Regulatory Comission or the Secretary of Energy, as appropriate, shall establish criteria in writing setting forth the basis upon which such detemination shall be made. As used in this subsection. *offsite" means away from "the location" or "the contract location" as defined in the appi4 cable Nuclear Regulator,y Commission or the Secreatary of Energy, as appropriate, indemnity agreement, entered into pursuant to section 170.

1/Additionsareunderscored;deletionsare[brasketed-and44med-through].

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. k. The tem "financial protection" means the ability to respond in damages for public liability and to meet the costs of investigating and defending claims and settling suits for such ciamLges.

m. The tem "indemnitor" means (1) any insurer with respect to his obliga-tions under a policy of insurance furnished as proof of financial protection; (2) any licensee, contractor or other person who is obligated under any other form of financial protection, with respect to such obligations; and (3) the Nuclear Regulatory Comission or the Secretary of Energy, as appropriate, with respect tc any obligation undertaken by it in an indemnity agreement entered into pursuant to section 170. ,

q. The term "nuclear incident" means any occurrence, inciuding an extraor-dinary nuclear occurrence, within the United States cousing, within or outside the United States, 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 source, special nuclear, er byproduct material: Previded, however, That as the term is used in [subseetion] section 1701., it shall include any such occurrence outside the United States: And provided further. That as the tem is used in [swbsest(em] section 170 d., it shall include any such eccurrence outside the United States if such occurrence involves source, special nuclear, or byproduct material owned by, and used by or under contract with, the United States: And provided further That as the tem is used in [subsest4em] sec-tion 170 c., it shall include any such occurrence outside both the Ufited States and any other nation if such occurrence arises out of or results from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material licensed pursuant to chapters 6, 7, 8, and 10 of this Act, which is used in connection with the operation of a licensed stationary production or utilization facility or which moves outside REVISED PRICE-ANDERSON ACT (Comp. Tert)

- 3-the territorial limits of the United States in transit from one person licensed by the Nuclear Regulatory Comission to another person licensed by the Nuclear Regulatory Commission.

s. The tem "person" means (1) any individus1, corporation, partnership, firm, association, trust, estate, public or private institution, group, Gov-e.rnment agency other than the Comission, any State or any political subdivi-sion of, or any political entity within a State, any foreign government or nation or any politicel subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

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t. The term "person indemnified" means (1) with respect to a nuclear inci-dent occurring within the United States or outside the United States as the tem is used in [subseet4en] section 170 c., and with respect to any nuclear incident in connection with the design, development, construction, operation, repair, maintenance, or use of the nuclear ship Savannah, the person witn whcrn an indemnity agreement is executed or who is required to maintain financial protection, and any other person who miy be liable for public liability or (2) with respect to any other nuclear incident occurring outside the United States, the person with whom an indemnity agreement is executed and any other person who may be liable for public liability by reason of his activities underanycontractwiththeSecretaryofEnergy[Gemissien]oranyprojectto which1.,demnificationundertheprovisionsof[subsestion]secti(n170d.has been extended or under any subcontract, purchase order, or other agreemer.t. of any tier, under any such contract or project.

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w. The term "public liability" means any legal liability erising out ur or resulting from a nuclear incident or precautionary evacuation (including all ,

reasonable additional costs incurred by a State, or a politi_c,a1 subdivisi_on of REVISED PRICE-ANDERSON ACT (Comp. Text) l O

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- 4 a State, in the course of responding to a nuclear incident or precautionary evacuation),except: (i) claims under State or Federal workmen's compensation acts of employees of persons indemnified who are employed at the site of and in connection with the activity where the nuclear incident occurs; (ii) claims arising out of an act of war; and (iii) whenever used in subsections [ U 9] a.,

c., and k. of section 170, claims for loss of, or damage to, or loss of use of property which is located at the site of and used in connection with the li-censed activity where the nuclear incident occurs. "Public liability" also includes damage to property of persons indemnified: Provided, That such property is covered under the terms of the financial protection required, except property wk.ich is located at the site of and used in connection with the activity there the nuclear incident occurs. ,

dd. The tems "high-level radioactive waste",an_d "spent nuclear fuel" have

_the meanings _given such tems in section 2 of the Nuclear Waste Policy Act of 1982(42U.S.C.10101).

ee. The term "transuranic waste" means material contaminated wito elements l

that have an atomic number greater than 92, including neptunium,f utonium_,,

a,mr icium, and curium, and that are in concentrations greater than 10 nano-curies per gram, or in such other concentrations as the Nuclear Regulatory Comission may prescribe _ to prote,et the public health and safe _t1 ff. The term "nuclear waste activities", as used in section 170, means

, activities subject to an agreement of it.demnification under,,1ubsection d. of such section, that the Secretary _ of Energy is authorized to undertake, under t,h_,is Ac t or anLolhe r l aw a involving the stora_ge, handling. ,t,ransport*etion g treatment, or d_isposal of, or research and de,velopment on, spent nuclear fu,e,12 high-level radi,oactive waste, or transuranic waste, includinL(but not limited to) activities authorized to be carried out under the Waste Isolation Piltit Project under section 213 of Public Law 90-164 (93 Stat.1265).

REV15EDPRICE-AhDERSONACT(Comp. Text)

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gg. The term "precautionary evacuation" means an evacuation of the public within a specified area near a nuclear facility, or the transportation route in the case of an accident involving transportation of source material, special nuclear material, byproduct material, high-level radioactive waste, spent nuclear fuel, or transuranic waste to or from a production or utiliza-tion facility, if the evacuation is --

(1) the result of any event that is not classified as a nuclear inci-dent but that poses imminent danger of bodily injury or prooerty damage from the radiological properties of source _ material, spgeial nuclear ma-terial, bypreduct material, high-level radioactive waste, spent nuclear fuel, or transuranic waste, and causes an evacuation; and (2) initiated by an official of a State or a political subdivision of a State, who is authorized by State law to initiate such an evacuation and who reasnnably determined that such an evacga_ tion was necessary to protect the public health and rafety.

hh. The term "public, liability action", as used in section 170, means any suit asserting public liability. A public liability action shall be deemed to bet an action arising under section 170, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section.

jj. LEG (L COSTS.-- As used in section 170, the term "legal costs" means the costs incurred by a_ plaintiff or a defendant in initiating, prosecuting, investigating, settling, or defending claims or suits for damage arising under such section REVISED PRICE-ANDERSON ACT (Comp. Text)

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[42U.S.C.2210]

SEC. 170. INDEMNIFICATION AND LIMITATION OF LIABILITY. --

a. REQUIREMENT OF FINANCIAL PROTECTION FOR LICENSEES.-- Each license issued  !

under section 103 or 104 and each construction pemit issued under section 185 shall, and each license issued under section 53, 63, or 81 may, for the public purposes cited in [sub]section 21. [of-the-Atom 4e-Energy-Aet-of-1954,-as] ,

amended), have as a condition of the license a requirement that the licensee 2

have and maintain financial protection of such type and in such amounts as the Nuclear Regulatory Comission (in this section referred to as the "Comis-sion")inthsexerciseofitslicensingandregulatoryauthoritykndresponsi-bilityshallrequireinaccordancewithsubsection[179]b.tocoverpublic I

Itability claims. Whenever such financial protection is required, it may be a further condition of the license that the licensee execute and maintain an in-demnificationagreementinaccordancewithsubsection[179]c. The Comission

may require, as a further condition of issuing a license, that an applicant waive any immunity from public liability canferred by Federal or State law.

b. AMOUNT AND TYPE OF_ FINANCIAL PROTECTION FOR LICENSEES.-- (1) The amount

, of primary financial protection required shall be the amount of liability in-surance available from private sources, except that the Comission may estab-l lish a lesser amount on the basis of criteria set forth in writing, which it '

! may revise from time to time, taking into consideration such factors as the j following: [(1)],(A),thecostandtermsofprivateinsurance.[f2)],(B),the .

i type, size, and location of the licensed activity and other factors pertaining to the hazard, and [(3)] ,[C), the nature and purpose of the licensed activity. '

Provided.Thatforfacilitiesdesignedforproducingsubstantailamobntsof electricity and having a rated capacity of 100,000 electrical kilowatts or more, the amount of primary financial protection required shall be the maximum l amount available at reasonable cost and on reasonable tems from private sources (excluding the amount of private liability insurance available under j the Industry retrospective rating plan required in this subsection). Such primary financial protection may include private insurance, private contrac-REVISED PRICE-ANDERSON ACT (Comp. Text)  !

l

I l

tual indemnities, self insurance, other proof of financial responsibility, or a combination of such measures and shall be subject to such terms and condi-tions as the Comission may, by rule, regulation, or order, prescribe. [in pressribing-swsk-terms-and-senditions-fer] The Comission shall require licensees that are required to have and maintain prin ry financial protection equal to the maximum amount of liability insurance available from private sourcestomaintain,inadditiontosuchprimaryfinancialprotection,[the Commiss4en-shallyby-rwie-(mit4 ally-pressribeC-met-later-tham-twelve-months f r om- th e-d a t e- o f- e m a e tme n t- o f- th i s -As ti- 4 m e l v de i- 4 m-de t e rm 4 m 4 m s- s w e h-ma x 4 mum amewnti] private liability insurance available under an industry retrospective rating plan providing for premium charges deferred in whole or major part un-til public liability from a nuclear incident exceeds or appears likely to ex-ceed the level of the primary financial protection required of the licensee involved in the nuclear incident: Provided, That such insurance is available to, and required of, all of the licensees of such facilities without regard to the manner in which they obtain other types or amounts of such primary finan-cial protection: And provided further, That the maximum amount of the stan-darddeferredpremium[wksh]thatmaybechargedalicenseefollowingany e

nuclearincidentundersuchaplan[shall-be-met-less-tham-82iG99G99-mer-mere i tham 85,999,999] shall not be more than $63,000,000 (subject to adjustment for inflation under subsection t.), but not more_ than $10,000,000 in any 1 year, for each facility for which such licensee is, required to maintain the maximum amount of primary financial protection: And provided further, That the amount which may be charged a licensee following any nuclear incident shall not ex-ceed the licensee's pro rata share of the aggregate public liability claims and costs (excluding legal costs subject to subsection o.(1)(D), par ent of which has not been au .horized under such subsection) arising out of t,he nucle-ar incident. Payment of any State premium taxes which may be applicable to any deferred premium p'ovided for in this Act shall be the responsibility of the licensee and shall not be included in the retrospective premium esteb-lished by the Commission. [TheGemmission-4s-auther4aed-te-establisha-mam4-mwm amewnt-whieh-the-aggregate deferred-prem4Wms-sharged-for-eash fae444ty with4m-eme-talendar year-may-met-exeeed,--The-Gemmissiem may establ4sh-amewnts less-tham-the-standard-prem4wm-fer-4mdividual-fae444 ties-tak4ml-4mte aseevnt REVISED PRICE-ANDERSON ACT (Comp. Text)

. sush-facters-as-the-fasilityls-sines-lesation -and-sther-fasters-pertaining-te s

the-haeard,]

_(2)(A) The Comission may, on a case by case basis, assess annual defer-red premisy amounts less than the standard annual deferred premium amount assessed w. der paragraph (1) --

(1) for any facility, if more than one nuclear incident occurs in

_any one calendar yeart or (ii) for any licensee licensed to operate more than one facility, if the Commission determines that the financial impact of assessing the standard annual deferred premium amount under paragrS h (1) would result in undue financial hardship to such licensee or the ratepayers of such ,

, licensee.

(B) In the event that the Comissiun assesses a lesser annual deferred premium amount under subparagraph (A), the Comissiqn shall require _pament of the difference between the standard _ annual deferred premium assessment under paragraph (1) and any such lesser annual deferred premium assessment within a reasonable period of time, with interest at a rate determined by the Secretan of the Treasury on the basis of the current average market yield on outstand-ing marketable obligations of the United States of comparable maturities dur-ing the month precedinc the date that the standard annual deferred premium assessment under paragraph (1) would become due.

Q1 The Comission shall establish such requirements as are necescary to assure availability of funds to meet any assessment of deferred premiums with-in a reasonable time when due, and may provide reinsurance or shall otherwise guarantee the paynent of such premiums in the event it appears that the amount of such premiums will not be available on a timely basis through the resources of private industry and insurance. Any agreement by the Comission yith a li-censee or indemnitor to guarantee the payment of deferred premiums may contain such terms as the Comission deems appropriate to carry out the purposes of this section and to assure reimbursement to the Comission for its payments made due to the failure of such licensee or indemnitor to meet any of its obligations arising under or in connection with financial protection required i under this subsection including without limitation terms creating liens upon l the licensed facility and the revenues derived therefrom or any other property I

I REVISED PRICE-ANDERSON ACT (Comp. Text)

I

or revenues of such licensee to secure such reimbursenwnt and consent to the automatic revocation of any license. '

(4)(A) In the event that the funds available to pay' valid claims in any year are insufficient as a result of the limitation on the amount of deferred premiums that may be required of a licensee in any year under paragraph (1) of (2), or the Comission is required to make reinsurance or guaranteed payments under par %raph (3), the Comission shall, in order to advance the necessary

_ funds--

(i) request the Congress to appropriate sufficient funds to satisfy

,such payments; or ,

(ii) to the extent approved in appropriation Acts, issue to the Secretary of the Treasury ob1_igations in such foms and denominations, bearing such maturities,_and subject to such terms and conditions as may be agreed to by the Comission and the Secretardthe Treasury.

(B) Except for the funds appropriated for purposes of making reinsur-ance or Luaranteed payments under paragraph (3), any funds appropriated under subparagraph (A)(1) shall be repaid to the general fund of the United States '

Treasury from amounts made available by standard deferred premium assessments, withinterestataratedeterminedbytheSecretaryoftheTreasuryontj]e basis of the current average market yield on outstanding marketable oblija-tions of the United States of ecmparable maturities during the month preceding the date that the funds appropriated ur. der such subparagraph are made avail _.

able.

(C) Except for the funds appropriated for purposes of making reinsur-ance or guaranteed payments under paragraph (3), redemption of obligations issued under subparagraph (A)(ii) shall be made by the Comission from amounts made available by standard deferred premium assessments. SuchoblicItions l

_s_ hall bear interest at a rate detemined by the Secretary of_ _the Treasury by l taking into consideration the average market yield on outstanding marketable obligations to the United States of comparable maturities during the month preceding the issuance of the obligations under_ this paragraph. The Secretary of the Treasury shal_1_ purchase any issued obligations, and for such purpose the Secretary of the Treasury may use as a public debt transaction the pro-

_ceeds from the , sale of any securities issued under chapter 31 of_ tit.le 31, REVISED PR3CE-A@ER50N ACT (Comp. Text)

United States Code, and the purposes for which securities may be issued under such chapter are extended to include any purchase of such obligations. The Secretary of the Treasury may at any time sell any of the obligations acquired by_ the Secretary of the Treasury under this paragraph. All redemptions, pur-chases, and sales by the Secretary of the Treasury of obligations under this paragraph shall be treated as public debt transactions of the United States,

c. INDEMN!FICATION OF LICENSEES BY NUCLEAR REGULATORY COMMISSION.-- The Commission shall, with respect to licenses issued between August 30, 1954, and August 1.,2002,[1987] 3 for which it requires financial protection of less than $560,000,000, agree to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability arts-ing from nuclear incidents which is in excess of the level of financial pro-tection required of the licensee. The aggregate indemnity for all persons indemnified in connection with each nuclear incident shall not exceed

$500,000,000 excluding sosts of investigating and settling claims and defend-ing suits for damage: Provided, however, That this amount of indemnity shall be reduced by the amount that the financial protection required shall exceed

$60,000,000. Such a contract of indemnification shall cover public liability arising out of or in connection with the licensed activity. Witt, respect to any production or utilization facility for which a construction permit is 15 -

sued between August 30, 1954, and August 1,2002,[1987s]therequirementsof this subsection shall apply to any license issued for such facility subsequent to August 1,2002[1987),

d. INDEMNIFICATION OF CONTRACTORS BY DEPARTHENT OF ENERGY.-- (1)(A) In additiontoanyotherauthoritythe[Gemission)SecretaryofEnergy>(inthis section referred to as the "Secretary") may have, the Secretary shall [the Gewission-4s-awtherized]untilAugust 1, 2002, [1987 5 tej enter into agree-mentsofindemnificationwith[4tssentraeters-for-thesenstewettom-or-opera-44emof-prodwet4emor-wt444aat4emfae444 ties-er-ether)anypersonwhomaycon-ductactivitiesunderacontract[s]withtheDepartmentofEnergy(forthe benef4toftheWmited-States-4mvelv4ml-ast4vitieswmder)thatinvolvetherisk of public liability [(er a-substamt4al-mwelear-4me4 dent) and that are not sub-REVISED PRICE ANDERSON ACT (Comp. Text)

i ject to financial protection requirements under subsection b, or agreements of indemnification under subsection c. or k.

(B)(1)(I) Beginn!ng 60 days after the date of enactment of the Price-Anderson Amendments Act of 1988, agrocoents of indemnification under subpara-graph (A) shall be the exclusive means of indemnification for public liability arising from activities described in such subparagraph, including activities conducted under a contract that contains an indemnification clause under Pub-Ifc Law 85-804 entered into between Av,gst 1,1987, and the date of enactment of the Price-Anderson Amendments Act of 1988.

(II) The Secretary may incorporate in agreements of indemnifica-tion under subparagraph (A) the praisions relating to the waiver,of an issue or defense as to charitable or governmental immunity authorized in subsection n.(1) to be incorporated in agreements of indemnification. Any su:h provi-

_sions incorporated under this subclause shall apply to any nuclear incident arising out of nuclear waste activities subject to an agreement of indemnifi-cation under subparagraph (A).

(ii) Public liability arising out of nuclear waste activities sub-ject to an agreement of indemnification under subparagraph (A) that are funded

,by the Nuclear Waste Fund established in section 302 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10222) shall be commensated from the Nuclear Waste Fund in an amount _not to exceed the maximum amount of financial prot e tion required of licensees under subsection b.

Q),In[sweh]agreementsofindemnificationenteredintounderparagraph (1),theSecretary[theGeu4ssion]mayregt 3[4ts]thecontractortopro-vide and maintain financial protection of such a type and in such amounts as the Secretary (Gemission) shall detennine to be appropriate to cover public liability arising out of or in connection with the contractual activity, and shall indemnify the persons indemnified against such claims above the amount of the financial protection required, [4m-the-amewnt-of-8500iG00iG00 -exclud-3 eng sests-of 4mvestigat4mg and-settl4mg ela4ms-and defend 4mg-swits-for-damage 4m] to the full extent of the aggregate public liability (for-all] of the personsindemnified[4msemmeet4em-with-sweh-tontraet-and]foreachnuclear incident, including such legal costs of the contractor as are_ approved by the Secretary.[t--prev 4dedi-That-this-amewnt-of-4mdemm4ty-sha41-be-redweedby-the REVISEDPRICE-ANDERSONACT(Comp. Text) t

amount-that-the-f4 mane 4al-protection-required-sha44-exceed-869,9995000+--Pre-v4ded-furtheri-That]

[3,)(A) Notwithstanding paragraph (2), if the maximum amount of financial protection required of licensees under subsection b. is increased by the Com-i mission, the amount of ir.demnity, together with any financial protection re-quired of the contractor, shall at all times remain equal to or greater thy l the maximum amount of financial protection required of licensees under subsec-tion b.

JB) The amount of indemnity provided contractors under this subsection shell not, at any time, be reduced in the event that the maximum amount of fi-cial protection required of licensees is reduced. ,

(C) All agreements of indemnification under which the Department of Energy (or its predecessor agencies) may be required to indemnify any~ person, shall be deemed to be amended, on the date of the enactment of the Price.

Anderson Amendments Act of 1988, to reflect the amount of indemnity for public liability and any applicable financial protection required of the contractor under this subsection on such date.

(4) Financial protection under paragraph (2) and inderanification under i paragraph (1) shell be the exclusive means of f 4nancial protection and indem.

nification under this section for any Departmelt of Energy demonstration re-

]

actor licensed by the Comission under secti_on 202 of the Energy Reorganiza-tien Act of 1974(42U.S.C.58421 i (5)In[in)thecaseofnuclearincidentsoccurringoutsidetheUnited I

States, the amount of the indemnity provided by the (Gemmissiem] Secretary under this subsection shall not exceed $100,000,000.

,(6),Theprovisionsofthissubsectionmaybeapplicabletolumpsumas 1 well as cost type contracts and to contracts and projects financed to whole or

) inpartbytheS_e_cretary(Gemmission).

,[7), A contractor with whom an agreement of indemnification has been exe-

! cuted under paragraph (1)(A) and who is engaged in activities connected with the underground detonation of a nuclear explosive device shall be liable, to

{

{ the extent so indemnified under this subsection, for injuries or damage sus-

! tained as a result of such detonation in the same manner and to the same ex-

tent as yulti a private ;'rson acting as principal, and no imunity or defense REVISEDPRICE..ANDERSONACT(Comp. Text) i -

1

f founded in the Federal, State, or municipal character of the contractor or of the work to be perfonned under the contract shall be effective to bar such liability.

e. LIMITATION ON AGGREGATE PUBLIC LIABILITY.-- (1) The aggregate public liability for a single nuclear incident of persons indemnified [4melvding-the rea s o na bl e-a s s ts-o f-( nve s ti g a ti n g-a nd- s e t tli n g-si n ims-a nd-de fe ndi ng-s wi ts-fo r damage] ,1,ncluding such legal costs as are_ authorized to be paid under subsee-tion o.(1)(D), shall not exceed _,

(A) in the case of facilities designed for producing substantial amounts of electricity and having a rated capacity of 100,000 electrical, kilowattsormore,themaximumamountoffinancialprotectio$requiredof sujh facilities under subsection b. (plus any surcharge assessed under subsection o.(1)(E));

(B) in the case of__cetractors with whom the Secretary has entered into an agreement of indemnification under 'ubsection d., the maximum amount of financial protection required under subsection b. or the amount of indemnity and financial protection that may be required under para-graph (3) of subsection d., whichever amount is more; and

_(C) in the case of all other licensees of the Commission required to mainta_i_n financial protection under this section --

Lil [(1)-the-st.m of] $500,000,000 together with the amount of fi-nancial protection required of the licensee (er-sentreeter]1 or (ii) [(2)J if the amount of financial protection required of the licenseeexceeds$60,000,000,[sweh-aggregate-44ab444ty-shall-not enseed-thesum-of]$560,000,000 or the amount of financial protec-tion required of the license 1, whichever amount is more. [ greater +

Prev 4deds-That]

(2) In (4n) the event of a nuclear incident involving damage

• in excess i of [that] the amount of aggregate public liability under paragraph (1), the  !

Congress will thoroughly review the particular ir.cident in accordance with the procedures set forth in section 170 1.2 and will in accordance with such pro-cedures, take whatever action is [ deemed] determined to be necessary [and REVISEDPRICE-ANDERSONACT(Comp. Text)

appvepriate] (including $ 3 proval of appropriate compensation plans and appro-priation of funds) to provide full and prompt compensation to [preteet] the public for all public liability claims resulting from [the-eemsegwenees-of] a disaster of such magnitude [t--And-provided-fwrther,-That]

_(3) No provision of_ paragraph (1) rmy be construed to preclude the Con-gress from enacting a revenue measure, applicable to licensees of the Comis-sion reo.uired to m,aintain financial protection pursuant to subsection b., to fund any action undertaken pursuant to paragraph (2).

(4)With[with]respecttoanynuclearincidentoccurringoutsideofthe United States to which an agreement of indemnification entered into under the provisions of subsection [U9] d. is applicable, such aggregate public liabil-ity shall not exceed the amount of $100,000,0002 together with the amount of financial protection required of the contractor,

f. COLLECTION OF FEES BY NUCLEAR REGULATORY COMMISSION.-- The Comission g the Secretary, as appropriate, is authorized to collect a fee from all persons with whom an indemnification agreement is executed under this section. This fee shall be $30 per year per thousand kilowatts of thermal energy capacity for facilities licensed under section 103: Provided, That the Comission g the Secretary, as appropriate, is authorized to reduce the fee for such facil-ities in reasonable relation to increases in financial protection required above a level of $60,000,000. For facilities licensed under ation 104, and for construction permits under section 185, the Comission is authorized to reduce the fee set forth above. The Comission shall establish criteria in writing for detemination of the fee for facilities licensed under section 104, taking into consideration such factors as (1) the type, size, and loca-tion of facility involved, and other factors a ttaining to the hazard, and (2) the nature and purpose of the facility. For other licenses, the Cormhission shall collect such nominal fees as it deems appropriate. No fee under this subsection shall be less than $100 per year.

g. USE OF SERVICFS OF PRIVATE INSURERS.-- In administering the provisions of this section, the Commission or the Secretary, as appropriate, shall use, to the maximum extent practicable, the facilities and services of private REVISED PRICE-ANDERSON ACT (Comp. Text)

=

insurance organizations, and the Comission or the Secretary, as appropriate, may contract to pay a reasonable compensation for such services. Any contract made under the provisions of this subsection may be made without regard tt 'he provisions of section 3709 of the Revised Statutes (41 U.S.C. 5), as amended, upon a showing by the Comission or the Secretary, as appropriate, that advertising is not reasonably practicable and advance payments may be made.

h. CONDITIONS OF AGREEMENTS OF INDEMNIFICATION.-- The agreement of indemni-fication may contain such tems as the Comission or the Secretary, as appro-priate, deems appropriate to carry out the purposes of this section. Such agreement shall provide that, when the Comission or the Secretary, as cppro-priate, makes a determination that the United States will probabl,y be required to make indemnity payments under this section, the Comission or the Secre-

_tary, as appropriate, shall collabor6te with any person indemnified and may approve the paynent of any claim under the agreement of indemnification, appear through the Attorney General on behalf of the person indemnified, take charge of such action, and settle or defend any such action. The Comission or the Secretary, as appropriate, shall have final authority on behalf of the United States to settle or approve the settlement of any such claim on a fair and reasonable basis with due regard for the purposes of this Act. Such set-tiement shall not include expenses in connection with the claim incurred by the person indemnified.

1. COMPENSATION __ PLANS.--(1)Afteranynuclearincident[wh4eh-w(14-preba-bly-retw4re-payments-by-the-Vmited States-under-this-sest4em or whieh w(41 probably-resvit-4m] involving damages that are likely to exceed the applicable amount of aggregate public liability [elaims-4m excess of-$569,000,999,) under l subparagraph (A), (B), or (C) of subsection e.(1), the Secretary or the Com-mission, as appropriate, shall n 1A1 make a survey of the causes and extent of damage; and (B)expeditiouslysubmitareport[wh4th-sha44-forthwith 4e-reported]

setting forth the results of such survey to the [Je4mt-Gemittee] Con-gress, to the Representatives (Gemgressmem] of the affected districts. l

[and]totheSenatorsoftheaffectedStates,and[,]1exceptforinforma-  ;

REVISEDPRICE-ANDERSONACT(Corp. Text)

- 16 -

tion that will [wh4eh-weWid] cause serious damage to the national defense l of the United Statesl [3-e14-f 4ma4-f 4md4 mss-sha44-be-made-ava44able] to the public, to the parties involved 2and to the courts. [The-Comiss4e,m s h a ll- r e p o r t- t o - th e -ele 4 m t - G em i t t e e -by- Ap r 4 4 -l i- 19583 - a n d- e v e ry-ye a r year-thereafter-en-the-sperations-under-this-seet4eme]

,[2) Not later than 90 days ef ter any detemination by a court, pursuant to subsection o., that the public liability from a single nuclear incident may exceed the applicable amount of aggregate public liability under subpara-  ;

graph (A), (B), or (C) of subsection e.(1) the President shall submit to the Congress --

,(A_) an estimate of the aggregate dollar value of personal injuries and property damage that arises from the nuclear incident and exceeds the i amount of aggregate public liability under subsection e.(1);'

(B) recomendations for additional sources of funds to pay claims '

exceeding the applicable amount of aggregate public liability under sub-paragraph (A), (B), or (C) of subsection e.(1), which recommendations shall consider a broad range of possible sources of funds (including possible revenue measures on the sector of the economy, or on any other class, te which such revenue measures might be applied);

(C) 1_or more compensation plans, that either individually or collec-tively shall provide for full and prompt compensation for all valid claims and contain a recomendation or reconrendations as to the relief l lo be provided, including any recommendations that funds be allocated or set aside for the _ payment of claims that may arise as a result of later,t injuries that may not be discovered until a later date; and (D) any additional legislative authorif.ies necessary to implement such compensation plan or plans.

(3)(A) Any compensation plan transmitted to the Congress pursuant to paragraph (2) shall bear an identification number and shall be t'ransmit-ted to both Houses of Congress on the same day and to each House while it is in session.

(B) The provisions of paragraphs (4) through (6) shall apply with re-

_spect to consideration in the_ Senate of any compensation plan transmitted to the Senate pursuant to paragraph (2).

REVISED PRICE-ANDERSON ACT (Comp. Text)

O

o 17 -

l .

. (4) No such compensation plan may be considered approved for purposes of subsection e.(2) unless between the date of transmittal and the end of the 4

first period of sixty calendar days of continuous session of Congress after the date on which such action is transmittid to the Senate, the Senate passes a resolution described in paragraph (6) r, this subsection. 1 (5) For the purpose of paragraph ('_) of this subsection --

(A) continuity of session is troken only by an adjournment of Congress sine die; an.1 (B) the days on which either House is not in session because of an adjournment of more than threa days to a day certain are exe.luded in the

computation of the sixty-day calendar period.

(6)(A) This paragraph is enacted --

(i) As an exercise of the rulemaking power of the Senate and as ,

such it is deemed a part of the rules of the Senate, but applicable

! only with respect to the procedure to be followed in the Senate in the case of resolutions described by subparagraph (B) and it super-l sedes other rules only to the extent that it is inconsister.t there-with; and (ii) with full recognition of the constitutional right of the Senate to change the rules at any time, in the same manner and t,o the same extent as in the case of any other rule of the Senate.  !

(B) For purposes of this paragraph, the term "resolution" means only a  !

joint resolution of the Congress the matter after the resolving clause of which is as follows: "That the approves the compensation plan .

numbered submitted to the Congress on , 19 . ", the first blank space therein being filled with the name of the resolving House and f the other blank spaces being appropriately filled; but does not include a  !

! gsolution which specifies more than one compensation plan. ]

l (C) A resolution once introduced with respect to a compensation plan 1 shall imediately _be referred to a cornittee (and all resolutions with, [

! respect to the same compensation plan shall be referred to the same l cocnittee) by the , President of the Senate, i i _(D)(i) If the comittee of the Senate to which a resolution with respect to a coepensation plan has been referred has not reported it  ;

4 i

i l REVISED PRICE-ANDERSON ACT (Comp. Text) i 6

O at the end of twenty calendar days after its referral, it shall be in order to move either to discharge the comittee from further consideration of such resolution or to discharge the comittee from further consideration with respect to such comperisation plan which has been referred to the comittee.

(ii) A motion to discharge may be made only by an individual favoring the resolution, shall be highly privileged (except that it may not be made af ter the comittee has reported a resolution with respect to the same compensation plan), and debate thereon shall be  ;

limited to not more th n f one hour, to be divided equally between l those favoring and those opposing the resolution. An amendment to the motion shall not be in order, and it shall not be in order to move to reconsider the vote hv which the motion was agreed to or disagreed to.

(iii) If the motion to discharge is agreed to or disagreed to, the motion may not be renewed, nor may another motion to discharge the committee be made with respect to any other resolutien with respect to the same compensation plan2 (E)(i) When the comittee has reported, or has been discharged from further consideration of, a resolution, it shall be at any time thereafter in order (even though a previous motion to the same offect has been disagreed to) to move to proceed to the considera-tion of the resolution. The motion shall be highly privileged and  ;

shall not be debatable. An amendment to the motion shall not be in  !

order, and it shall not be in order to move to reconsider the vote by which the motion was agreed to or disagreed to.

(ii) Debate on the resolution referred to in clause (i) of this subparagraph shall be limited,tg not more than ten hours, which shall be divided equal

• Jetweu those favoring and those opposing j ,such resolution. A motion further to limit debate shall not be debatable. An amendment to, or motion to recommit, the resolution shall not be in order, and it shall not be in order to move to

-reconsider the vote by which such resolution wa; agreed to or

)

i disagreed to.

I REVISED PRICE-ANDERSON ACT (Comp. Text)

(F)(1) Motions to postpone, made with respect to the discharge from committee, or the consideration of a resolution or motions to pro-ceed to the consideration of other business, shall be decided with-out debate.

(ii) Appeals from the decision of the Chair relating to the appli-cation of the rules of the Senate to the procedures relating to a resolution shall be decided without debate.

j. CONTRACTS IN ADVANCE OF APPROPRIATIONS.-- In administering the provi-sions of this section, the Co1nission or the Secretary, as appropriate, may  !

make contracts in advance of appropriations and incur obligations without regard to sections 1341,1342,1349,1350, and 1351, and subchapter !! of chapter 15, of title 31 United States Code [seet4en-3679-ef-the-Revised-Stat-utes,-as-amended).

k EXEMPTION FROM FINANCIAL PROTECTION REQUIREMENT FOR NONPROFIT EDUCATIONAL INSTITUTIONS.-- With respect to any license issued pursuant to section 53, 63, 81,104a., or 104c. for the conduct of educational activities to a person found by the Comission to be a nonprofit educational institution. l the Commission shall exempt such licensee from the financial protection requirementofsubsection[170)a. With respect to licenses issued between  ;

August 30, 1954, and August 1, 20 % [19375 ) for which the Comission grants such exemption:

(1) the Comission shall agree to indemnify and hold harmless the licensee and other persons indemnified, as their interests may appear, l from public liability in excess of $250,000 arising from nuclear inci- l dents. The aggregate indemnity for all persons indemnified in connection l with each nuclea* incident shall Mt exceed $500,000,000, [emelud4mg-esst  ;

of4mvestigat4mgandsettl4mg-slaims-and-defend 4mg-swits-for-damage]in-cluding such lenal costs of the licensee as are approved by the Comis- l sion; ,

(2) such contracts of indemnification shall cover public liability I arising out of or in connection with the licensed activity; and shall f include damage to property of persons indemnified, except property which [

REVISEDPRICE-ANDERSONACT(Comp. Text)

I

1 I

l 20 i

l 4

j is located at the site of and used in connection with the activity where l the nuclear incident occurs; and i l

(3)suchcontractsofindemnification,whenenteredintowitha l

! licensee having imunity from public liability because it is a State i i agency, shall provide also that the Comission shall make payments under [

j the contract on account of activities of the licensee in the same manner  !

i and to the same extent as the Comission would be required to do if the j licensee were not such a State agency. l l Any licensee may waive an exemption to which it is entitled under this sub- (

) section. With respect to any production or utilization facility for which a

] construction permit is issued between August 3C, 1954, and August;1. 2002, j [1987,]therequirementsofthissubsectionshallapplytoanylicenseissued for such fat.ility subsequent to August 1.2002[1987].

i l [4,-The-Comissien-4s-autherised-wnt44 August-li-19773 -to-enter-4mte-an

! agreement-of-indemmifiset4em with-any-person-engaged-in the-des 4gni-develop-memei senstruettemi-speraties -repairi-and maintenamee-or-wse-of-the-mwelear-l powered-th4p autherised-by-sest4es-716-of-the-Wershamt Mar 4me-Aeti-19363-and

designated-the

mwelesr ship Savammakr e--in any-sweh agreement-of-4mdema4f4ea-49en-the-Gemiss4em-may-require-lush-persem-to-provide-and-mainta4m f 4 mane 4a4 l

j p r o t e s t 4 e m- o f- s w e h - a - typ e - a n d- 4 m- s w a h - an e v n t s - a s - th e-G emmi s s i o n- s h a ll-d e t e r-i m4me-to be appropriate-to-sever-publ4s-44tb444ty-ar4 sing-from.a-mwelear-4me4-

! dent-4m semmest4em-with-sush desigmi-developmenti-senstrwettemi-speratiemi-re-j patri-ma4mtenamee or-use-and-sha44-4mdemmify the-person 4mdemm4f4ed-agalmst ,

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l

1. PREDIDENT!AL COMMIS$10N__0N CATASTROPHIC NUCLEAR ACCIDENTS.-- (1) Not later than 90 days af ter the date of the enactment of th_e Price Anderson gendments Act of 1988, the President shall establish a comission (in this REVISEDPRICE-ANDERSONACT(Comp. Text) u -_ - _ _

O t

subsectica referred to as the "study commission") in accordance with the Federal moi ..g / Comittee Act (5 U.S.C. App.) to study means of fully compen-sating victims of a catastrophic nuclear accident that exceeds the ataunt of aggregate public liability under subsection e.(1) --

_(2)(A) The study commission shall consist of not less than 7 and not more inan 11 members, who --

,(i)shallbeappointedbythePresident;and (ii) shall be representative of a broad range of views and interests. l (B) TH members of the study commission shall be appointed in a manner i that ensures that not more than a mere majority of the members are of_the same )

political party. .

(C) Each member of the study comission shall hold office'until the termination of the study comission, but may be removed by the President for 3 inefficiency, neglect of duty, or malfeasance in office.

(D) Any vacancy in the study commiss_i,ot shall be filled in the manner in which the original appointment was made.

(E) The President shall designate 1 of the members of the *>tudy comission as chairperson, to serve at the pleasure of the President._

(3)_The study commission shall conduct a comprehensive study of appropri-ate. .r.s of fully compensating victims of a catastrophic nuclear ace, igg that exceeds the amount of aggregate public liability under subsection e.(1),

and shall submit to the Congress a final report setting forth --

(A) recomendations for any changes in the laws and rules governing the liabilty or civil procedures that are necessary for the equitable, ,

prompt, and efficient resolution and payment of all valid damage claims,

_ including the advisabilii:y of adjudicating public _liabiljfy claims  ;

through an administrative agency instead of the judicial systemt  ;

(B) recernendations for any standards or procedures that are'necessary to establish priorities for the hearing, resolution, and payment of claims when awards are likely to exceed the amount of funds available within a specific time _periodt and (C) recomendations for any special standards or procedures necessaty to decide and pay claims for latent injuries caused by the nuclear inci-dent. i REVISED PRl;E-ANDERSON ACT (Comp. Text) f

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. (4)(A) The chairperson of the study commission may appoint and fix the compensation of a staff of such persons as .may be necessary to discharge the

_ responsibilities of the study commission, subject to the applicable provisions of the Federal ?dvisory Comittee Act (5 U.S.C. App.) and title 5. United States Code. i j (8) To the extent pemitted by law and rect,ested by the chairperson I of the study commission, the Administrator of General Services shall provide j the study comission with necessary administrative services, facilities, and support on a reimbursable basis.

j (C) The *.ttorney General, the Secretary of Health and Human Services, i and t k Director of the Federal Emergency Management Agency shall! to the ex- '

tent pemitted by law and subject to the availability of funds, provide the I itudy commission with such facilities, support, funds and services, includir.

s__taff, as may be necessary for the eff ective perfomance of the functions of ,

the study comission.

(D) The study cocnission may request any Executive agency to furnish such infomation, advice, or assistance as it detemines to be necessary to carry out its functions. Cach such agency is directed, to the extent pemit-ted by law, to furnish such infomation, advice or assistance upon request by

^

the chairperson of the study concission.

(E) Each member of the study cortnission may receive compensation at the maximum rate prescribed by the Federal Advisory Comitts e Act (5 U.S.C.

App.) for each day such member is enoaged in the work of the study l ots.ission.

Ecch member may also receive travel expenses, includinq per diem in lieu of I subsistenceundert)ctions5702and5703oftQ1e5,UnitedStatesCode.  ;

(F) The functions of the President under the Federal Advisory Comit- l

]

tee Act (5 U.S.C. App.) that are applicable to the study comission except

]

the function of reporting annually to the Congress, shall be perfomed by the Administrator of Gene,al Services.

(5) The final report required in paragraph (3) shall be submitted to the  !

Congress not later than the expiration of the 2-year period beginning on the date of the enactment of the Price-Anderson Amendments Act of 1988.

(6) The study comission shall_ teminate upon the expiration of the REVISED PRICE-ANDERSON ACT (Comp. Text)  ;

2-month period beginninj on the date on which the final report required in paragraph (3) is submitted.

m. COORDINATED PROCrDURES FOR PROMPT SETTLEMENY OF CLAIMS AND EMERGENCY ASSISTANCE.-- The Commission or the Secretary, as appropriate, is authorized to enter into agreements with other indemnitors to establish coordinated pro-cedures for the prompt handling, investigation, and settlement af claims for public liability. The Comission or the Secretary, as appropriate, and other indemnitors may make payments to, or for the aid of, claimants for the purpose l of providing imediate assistance following a nuclear incident. Any funds appropriated to the Comission or the Secretary, as appropriate, shall be available for such payments. Such payments may be made without securing releases, shall not constitute an admission of the liability of any person indemnified or of any indemnitor, and shall operate as a satisfaction to the  !

extent thereof of any final settlement or judgment.

n. WI,IVER OF DEFEN.'ES AND JUDICIAL PROCEDURES.-- (1) With respect to any l

extraordinary nuclear occurrence to which an insurance policy or contract furnished as proof of financial protection or an indemnity agreement applies l

. and which -- l (A)[(a4]arisesoutoforresultsfromoroccursinthecourseofthe l 1

construction, possession, or operation of a production or utilization '

facility [erj .

1B), [(b)] arises out of or results from or occurs in the course of transportation of source material, byproduct material, or special nuclear  !

material to or frem a production or utilization facility. [er) . l 1C), [(e)) during the course of the contract activity arises out of or results from the possession, operation, or use by a [Comission) Depart- '

ment of Energy contractor or subcontractor of a device utilizing special nuclear materia? or byproduct material, (D) arises out of, _results from, or occurs in the course of, the con. '

M euction, possession, or operation of any facility licensed under sec-Men 53,63,or81,forwhichtheCommissionhasimposed_asacondition REVISiD PRICE ANDERSON ACT (Comp. Text)

t 24 of the license a requirement that the licensee have and maintain finan-cial protection under subsection a.,

(E) arises out of, results from, or occurs in the course of, transpor.

_tation of source material, byproduct material, or special ruclear mate-rial to or from any facility licensed under section 53, 63. or 81, for which the Commission has imposed as a condition of the license a require-ment that the licensee have and maintain financit'. protection under sub-section :. or l (F) vises out of, results from, or occurs in the coarse of nuclear

] waste activities._

the Comission or the Secretary, as appropriate, may incorporate provisions in j indennity agreements with licensees and contractors under this section, and may require provisions to be ir.corporated ir insurance policies or contracts furnished as proof of financial protection, which waive (i) any issue or de-fense as to conduct of the claimant or fault of persons indemnified, (ii) any issue or defense as to charitable or governmental immunity, and (iii) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reason-ably could have known, of his injury or damage and the cause thereof [i-but-4m me event-mere-tham-twenty-years-af ter-the-date of-the muelear-4m 4 dent]. 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. When so incorporated, such waivers shall be judicially enforcible in uccrdance with their terms by the claimant against the person indemnified. Such waivers shall not preclude t. defense based upon a failure to take reasonable steps to mitigate damages, ,ior shall such waivers apply to injury or damage to a claimant or to a claimt.nt's property which is intentionelly susteined by the claimant or which results from a nuclear inci-dent intentionally and wrongfully caused by the claimant. The waivers author-ired in this subsection shall, as " indemnitors, be effective only with re-spect to those obligations set forth in the insurance policies or the con-tracts furnished as proof of fir.ancial protection and in the indemnity agree-rents. Such waivers shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection REVISEDPRICE-ANDERSONACT(Comp. Text)

- ,h.

i l

.' afforded under (i) the tems of insurance policies or contracts furnished as prcof of financial protection, or indemnity agreements, end (ii) the limit of

.liabilityprovisionsofsubsection(09)e.

(2) With respect to any public liability action arising out of or result-ingfromanuclearincident[am-extraordinary-mwelear-seawrremee),theUnited States district court in the district where the nuclear incident [the extraer-dinary-nwelear-seawPrenee] takes place, or in the case of a nuclear incident Lanextraordinary-awalear-setwerente)takingplaceoutsidetheUnitedStates, the United States District Court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon notion of the defendant or of the Comission g the Secretary, as appropriatt, any such action pending in any State court (including any such action pending on the date of the enactment of the Price-Anderson Amendments Act of 1988) or United States district ccurt shall be removed or transferred to the United States district court having venue under this subsection. Process of such district court shall be effective throughout the United Sta' . In any action that is or becomes removable pursuant to this oaragraph, a petition for removal shall be filed within the period pro-vided in section 1446 of title 28, United States Code, ce wi, thin the 30-day period beginning on the date of the enactment of the Price-Anderson Amendments Act of 1988, whichever occurs later.

(3)(A) Following any nuclear incident, the chief judge of the United States district court having jurisdiction under paragraph (2) with respect to public liability actions (or the judicial council of the judicial circuit in which the raclear incident occurs) may appoint a special caseload management panel (in this paragraph referred to as the "management panel") to coordinate and assign (but not necessarily hear,themselves) cases arising out of the ,

nuclear incident, if,_- ,

(1) a court, acting pursuant to : Jbtecti0n o., detemines that the aggregate amount of public liability is likely to exceed the amount of  !

primary financial protection available under . subsection b. (or an equiva-

_ lent amount in the case of a contractor indemnified under subsection d.);

E REVISr. . RICE-ANMRSON ACT (Comp. Text)

-- ~ - _

0

, (ii) the e.hief judge of the United, States district court (or the

. judicial council of the judicial, circuit) determines that cases arising out of the nuclear incident will have an unusual _i,mpact on the work of Mecourt.

IB)(1) Each management panel shall consist only of members who are United States district judges or circuit judges.

(ii) Members of a management panel may include any United States district judge or curcui+, judge of another district co_urt or court of appeals, if the chief judge of such other district court or c_ourt of appeals consents to such assignment.

__(C) It shall be the tunction of each management panel -- i (i) to consolidate related or similar claims for hearing or trial; (ii) to establish priorities for the handling of.different classes ,

t of cases; (iii) to assign cases to a pcrticular judge or special master; (iv) to appoint masters to heae' particular types of cases, or particular elements or procedural steps of case,sj (v) to promulgate special rules of court, not inconsistent with the Federal Rules of Civil Procedur,e2 to expedite cases or allow some equitable consideration of cla_ims' (vi) to implement such other measures, consistent with existing f law and the Federal Aules of Civil Procedure, as will encourage the i equiteble, prompt, and efficient resolution of eases arising out of the f nuclear incident; and (vii) to assemble and submit to the President such data, availab';e, j to the court, as may be useful in estimating the aggregate damages from the nuclent incident. .

l

o. PLAN FOR DISTRIBUTION OF FUNDS.- Ahenev r the United States dis-trict court in the district where a nuclear incideni, occurs, or the United i

States District Court for the District of Columbia in case of a nuclear inci-I dent occurring outside the United States, detennines upon the petition of any l indemnitor or other interested person that public liability from a single l

RIVISED PRICE-ANDERSON ACT (Comp. Text)

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27 -

nuclear incident may exceed the limit of liability under the applicable limit of liability under subparagraph (A), (B), or (C) of subsection [170] e.,Q),:

I M [(1)] Total payments made by or for all indemnitors as a result of such nuclear incident shall not exceed 15 per centum of such limit of liability without the prior approval of ::ch ccurt; (B) [(2)] The court shall not authorize payments in excess of 15 rer centum of such limit of liability unless the court detemines that such payments are or will be in accordance with a plan of distribution which has been approved by the court or such payments are not likely to preju-dice the subsequent adoption and implementation by the court of a plan of distributionpursuantto[subparalraph-(31-ef-this-subseetion-(e)Jsub-paragraoh (C); and ICJ, [(3)] The Comission or the Secretary, as appropriate, shall, and and any other indemnitor or other interested person may, submit to such district court a plan for the disposition of pending claims and for the

(;htribution of remaining funds available. Such a plan shall include an allocation of appropriate amounts for personal injury claims, property damage claims, and possible latent injury claims which may not be dis-covered until a later time and shall include establishment of priorities between claimants and classes of claims, es necessary to insure the most equitable allocation of available funds. Such court shall have all power necessary to approve, disapprove, or modify plans proposed, or to adopt another plan; and to determine the proportionate share of funds available for each claimant. The Comission or the Secretary, as appropriate, any other indemnitor, and sny person indemnified = hall be entitled to such orders as may be appropriate to implement and enforce the provisions of this section, including orders limiting the liability of the pusons indemnified, orders approving or modifying the plan, orders staying the parent of claims and the execution of court judgeents, o-ders apportion-ing the paymests to be made to claimants, and orders permitting partial parents to be made before final detemination of the total claims. The orders of such court shall be effective throughout the United States.

[(4)-the-Comiss4am-sha14,-dth4m-m4mety-days-afier-a-eeurt-oka44-have ma d e- s w e h-d e t e rm 4 m a t 4 e mi- del 4 V C r- t o- t h e a d $ i n t-C emi t t e e- a - s u p p % 9 e n t- t e REVISED PRICE-AN0r.RSON ACT (Comp. Text)

i the-report-prepared-4m-asserdamee with-subsestAon-179-4,-ef-th45-Ast-set-44mp-forth-the-estimated-requirements-for-full-sempensattem and-relief-ef i all-sla4mantsi-and-retemmendatisms-as-to-the-relief-to-be-prev 4dede)

(D) A court may authorize payment of only such legal costs as are -

permitted under paragraph (2) from the amount of financial protection required by subsection b.

(E) If the sum of public liability claims and legal costs authorized  ;

under paragraph (2) arising from any nuclear incident exceeds the maximum amount of financial protection required under subsection b., any licensee required to pay a standard deferred premium under subsection b.(1) shall, in addition to such defarred premium, be charged such an amount as is necessary to pay a pro _. rata share of such claims and costs, but in no case more than 5 percent of the maximum amount of such standard deferred premium described in such subsection.

(2) A court may authorize the parent of legal costs under paragraph (1)(D) only if the person requesting such payment has --

(A) su'omitted to the court the amount of such paynent requested; and (B) demonstrated to the court --

(1) that such costs are reasonable and equitable; and (ii) that such person has --

(!) litigated in good faith,

(!!) avoided _ unnecessary duplication of effort with tt it of other parties similarly situated;

(!!!) not made frivolous claims or defenses; and (IV) not attempted to unreasonably delay thr_ prompt settlement or adjudication of such claims,

p. REPORTS TO CONC.RESS.-- (Q The Comission and th,e, iecretary sha'll submit to the Congress by August 1,1998,[19833-a] detailed'eport.s.concerningthe need for continuation or modification of the provisir is of this section, tak-ing into account the condition of the nuc' ear indus'.ry, availability of pri-vate insurance, and thi state of knowledge concerring nuclear safety at 'a t time, among other relevant factors, and shall in-lude recomendations as to the repeal or modification of any of the provisions of this section.

REVISED PRICE-ANDERSON ACT (Comp. Text)

a (2) Not later than April 1 of each year, the Cohnission and the Secretary

shall each submit an annual report to the Congress setting forth the activi-l ties under this section during the preceding calendar year,

q. LIMITATION ON AWARDING OF PRECAUTIONARY EVACVATION COSTS.- No court may award costs of a precautionary evacuation unless such costs constitute a pub-lic liability.

r. LIMITATION OF LI ABILITY OF LESSOR $.-- No person under a bona fide lease I of any utilization or production facility (or part thereof or undivided inter- i est therein) shall be liable by reason of an interest as lessor of such pro-duction or utilization facility, for any legal liability arising out of or resulting from a nuclear incident resulting from such facility, unless such ,

facility is in the actual possession and control of such person at the time of the nuclear incident giving rise to such legal liability.

s. LIMITATION ON PUNITIVE DAMAGES.-- No court may award punitive damages in any action with respect to a nuclear incident or precautionary evacuation against a person on behalf of whom the United States is obligated to make i payments under an agreement of indemnification covering such incident or  :

evacuation. 1 I

~

t. INFLATION ADJUSTMENT.-- (1) The Conmission shall adjust the amount of the maximum standarc deferred premium under subsection b.(1) not less than  :

once during erch 5-year period following the date of the enactment of the Price-Anderson Amendments Act of 1988, in accordance with the aggregate per.

centage change in the Consumer Price Index since --

l (A) such date of enactment, in the case of the first adjustment under this subsection; or (B) the previous adjustment under this subsection.

(2) For purposes of this subsection, the term "Consumer Price Index" means the Consumer Price Index for all urban consumers published by the Secretary of Labor.

i I

REVISED PRICE-ANDERSON ACT (Comp. Text)

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