ML20244D234

Financial Protection Requirements & Indemnity Agreements; Miscellaneous Amends Necessitated by Changes in Price- Anderson Act, 10CFR140 Final Rule.Regulations Being Amended to Coincide W/Increase in Level of Primary Layer Insurance

ML20244D234
Person / Time
Issue date:	05/30/1989
From:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
FRN-53FR51120, RULE-PR-140 NUDOCS 8906160179
Download: ML20244D234 (30)

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NUCLEAR REGULATORY COMMISSION p ,

10 CFR PART 140; RIN:' 3150-AD08 ,

'. Financial Protection Requirements and Indemnit i 8S #c jg Agreements; Miscellaneous Amendments Necessitated % VO.

By Changes in the Price-Anderson Act AGENCY: Nuclear Regulatory Comission.- 'l ACTION: Final Rule.

SUMMARY

The Nuclear Regulatory Commission is amending its regulations tol conform  ;

l to changes made to the Price-Anderson Act by "The Price-Anderson Amendments Act of 1988," which was enacted on August 20, 1988. The Comission is also amending

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its regulations to increase the level of the primary layer of financial pro--

tection required of certain indemnified licensees. The provisions of Section 170 1 l

of the Atomic Energy Act of 1954, as amended, require production and_ utilization )

facility licensees to have and maintain financial protection to cover public {

liability claims. Therefore, the Comission is amending its regulations to-coincide, as statutorily required, with the increase in the level of the primary' layer of insurance provided by private nuclear liability insurance: pools. . This  ;

change would provide additional insurance to pay public liability claims arising out of a nuclear incident.

l EFFECTIVE DATE: July 1, 1989.

FOR FURTHER INFORMATION CONTACT: Ira Dinitz, Policy Development and Financjal Evaluation Section, Policy Development and Technical Support Branch, Office of Nuclear Reactor Regulation, U.S.iMuclear Regulatory Comission, Washington, DC 20555, Telephone: (301)492-1289.

8906160179 890530 --

PDR PR 140 53FR51120 - PDR:

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2 SUPPLEMENTARY INFORMATION: On August 20,1988, "The Price-Anderson Amendments Act of 1988" was enacted as Pub. L. 100-408. This legislation modifies and extends for 15 years (to August 1, 2002) the Price-Anderson Act. On December 20, 1988, the Commission published a proposed rule in the Federal Register (53 FR 51120) requesting comments on amending certain provisions of 10 CFR Part 140 to conform to changes made by Pub. L. 100-408. Two nonsubstantive comments-were received on the proposed rule. The first commenter,'without indicating a.

need, requested an extension of the comment period, which the NRC did not- ,

believe was warranted. The other commenter requested specific incorporation of-certain other regulatory changes, which has been done. First, the requirement for the imposition of a surcharge above the $63 million deferred premium.

assessment,asspecifiedinsubsection1700.(1)(E)oftheAct,hasbeenincor-porated into the regulations. Second, the regulations have been clarified to.

specify that the $10 million annual deferred premium would be assessed on a "per incident" basis as implied in the Act and as clearly indicated in the legislative history.

Section170oftheAtomicEnergyActof1954,asamended,(theAct) requires production and utilization facility licensees to have and maintain-financial protection to cover public liability claims resulting from a nuclear incident or precautionary evacuation. Section 170 also requires ~the. Nuclear Regulatory Comission to indemnify the licensee and other persons indemnified, up to the statutory limitation on liability, against public liability claims in excess of the amount of financial protection required. Subsection 170b.,of

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the Act requires that for facilities designed for producing substantia 1 amounts >

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'1 of electricity and having a rated capacity of 100,000 electrical kilowatts or more, the amount of financial protection required shall be the maximum amount available from private sources, Primary financial protection may be in the hrm of private insurance, privete contractual indemnities, self-insurance or other proof of financial responsibility, or combination of such measures.

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1 The insurers who provide the nuclear liability insurance, American Nuclear 1 Insurers (ANI) and Mutual Atomic Energy Liability Underwriters (MAELU), have advised the Commission that the maximum amount of primary nuclear energy liability i 1

insurance available has been increased from $160 million to $200 million.

Pursuant to the provisions of subsection 170b. of the Act, the amount of l primary financial protection required for facilities having a rated capacity lJ of 100,000 electrical kilowatts or more will be increased to $200 million.

Environmental Impact: Categorical #'clusion j The Commission has determined that this rule is the type of action describedasacategoricalexclusionin10CFR51.22(c)(1). Therefore,  !

neither an environmental 'ampact statement nor an enviror. mental assessment has been prepared for this rule.

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1 Paperwork Raduction Act Staterent j This rule does not contain a new or amended information collection requirement subje,ct to the Paperwork Reduction Act of 1980'(44 U.S.C. 3501 et seq.) Existing require,nents were approved by the Office of Management and Budget approval number 3150-0039.

Regulatory Flexibility Certification j In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

the Commission hereby certifies that this rule will not h6ve a significant economie effect on a substantial number of small entities. This rule applies unly to nuclear power plant licensees which are electric utility companies dominant in their service areas. These licensees are not "small entities" as set forth in the Regulatory Flexibility Act and do not meet the sttndards set forth for small businesses in Small Business Administration regulations in-13 CFR Part 121. ,

i Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109,-does not t

apply to this rule, cad therefore, that a backfit analysis is not required f,or this rule. These amendments are required to conform NRC regulations to i

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statutory directives and do not involve any provisions which would impose backfitsasdefinedin10CFR50.109(a)(1). {

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List of Subjects in 10 CFR Part 140 {

Extraordinary nuclear occurrence, Insurance, Intergovernmental relations, l Nuclear materials, Nuclear power plants and reactors, Penbity, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the' 1 1

Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 140.

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' I PART 140 - FINANCIAL PROTECTION REQUIREMENTS AND lilDEMNITY ARREEMENTS l i

1. The authority citation for Part 140 continues to read as follows:

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AUTHORITY: Secs. 161, 170, 68 Stat. 948, 71 Stat 576, as amended (42 U.S.C.2201,2210).; secs.201,asamended.202,88 Stat.1242,asamended,1244

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l (42 U.S.C. 5841, 5842). l For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);

il140.11(a),140.12(a),140.13,and140.13aareissuedundersec.161b.,68 j Stat.948,asamended(42U.S.C.2201(b));andi140.6isissuedundersec. 1610., 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

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1 6 j l 2. In i 140.11, paragraph (a)(4) is revised and the introductory text (a) is provided for the convenience of the user to read as follows:

1 140.11 Amounts of financial protection for certain reactors. < a (a) Each licensee is required to have and maintain financial protection:

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I (4) In an amount equal to the sum of $200,000,000 and the amount ]

available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan I

providing for deferred premium charges equal to the pro rata share of the f aggregate public liability claims and costs, excluding costs payment of which is not authorized by section 1700.(1)(D), in excess of that covered by primary financial protection) for each nuclear reactor which is licensed ,

l to operate and which is designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more:

1 Provided, however, That under such a plan for deferred premium charges for each nuclear reactor which is licensed to operate, no more than

$63,000,000 with respect to any nuclear incident (plus any surcharge assessedundersubsection1700.(1)(E)oftheAct)andnomorethan

$10,000,000 per incident within one calendar year shall be charged.

t 3.IniSection-140.13a, paragraph (c)isrevisedtoreadasfollows:

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6 140.13a Amount of financial protection required for plutonium processing and fuel fabrication plants.

l (a) Each holder of a' license issued pursuant to Part 70 of this chapter to possess and use plutonium at a' plutonium processing and fuel fabrica-tion plant is required to have and maintain financial protection in the ,

form specified in i 140.14 in the amount of $200,000,000. Proof of fi-nancial protecticn shall be filed with the Commission in the manner in i 140.15 prior to issuance of the license under Part 70 of this chapter.  !

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4. Section 140.92, Appendix B, is amended as follows:

a. Article I, paragraphs 1 and 7 are revised,

b. Article II, paragraph 4(c), introductory text of .

paragraph 8,andparagraphs8(a),8(b),and8(c) i are revised.

c. ArticleIII, paragraph 4(b)isrevised.

d. Article VIII, paragraph 1 is revised.

I 140.92 Appendix B -- Form of indemnity agreement with licensees i furnishing insurance policies as proof of financial protection.

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i ARTICLE I i

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1. " Nuclear reactor," " byproduct material," " person," " source mate-'  ;

rial," "special nuclear material," and " precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954,' as amended, ,  :

and the regulations issued by the Commission.

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7. "Public liability" means any legal liability. arising out of or resulting from a nuclear incident or precautionary evacuation (including i

all reasonable additional costs incurred by a State, or a political sub-division of a State, in the course of responding to a nuclear incident or j precautionary evacuation), except (1) claims under State or Federal Work-' ,

men's Compensation Acts of employees of- persons * ;demnified who are i employed (a) at the location or, if the nuclear fi.cident occurs in the  ;

course of transportation of the radioactive material, on the transporting vehicle,and(b)inconnectionwiththelicensee'spossession,useor-transferoftheradioactivematerial;(2)claimsarisingoutofanactof war;and(3)clainsforlossof,,ordamage'to,orlossofuseof'(a) property which is located at the location and used in connection with the licensee's possession,use,ortransferoftheradioactivematerial,and'(b)if'the. nuclear incident occurs in the course of transportation of the radioactive material,-the transporting vehicle, containers used in such transportation,-and the radioactive.

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ARTICLE II l l:

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• 1 (c) Any issue or defense based on any statute of limitations if suit is >

instituted within 3 years from the date on which the claiment first knew, or reasonably could have known, of his injury or damage and the cause-l thereof.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or -

relating to an element in the cause of action. The waivers shall be judicially enforceable in accordance with their terms by the claimant l against the person indemnified, j i

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8. With respect to any common occurrence, (a)IfthesumoflimitofliabilityofanyNuclearEnergyLiability Insurance Association policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance, policies (facility form) applicable to such connon occurrence and issued l-

10 by Nuclear Energy Liability Insurance Association exceeds $155,000,000 the amount of financial protection specified in Item 2 a and b of the Attach-ment shall be deemed to be reduced by that proportion of the difference between sai.d sum and $155,000,000 as the limit of liability of the Nuclear Energy Liability Insurance Association policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all. nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability Insurance , l Association; i

(b) If the sum of the limit of liability.of any Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence an'd issued' -

by Mutual Atomic Energy Liability Underwriters exceeds $45,000,000, the amount of financial protection specified in Item 2 a and b of the Attach-ment shall be deemed to be reduced by that proportion of the difference i between said sum and $45,000,000 as the limit of liability of the Mutual j Atomic Energy Liability Underwriters policy designated in Item 5 of the.

Attachment bears to the sum of the limits of liability of all nuclear en-t I ergy liability insurance policies (facility form) applicable to'such com-1 mon occurrence and issued by Mutual Atomic Energy Liability Underwriters;. l (c)Ifanyoftheotherapplicableagreementsiswithapersonwhohas furnished financial protection in a form other than a nuclear energy lia-bility insurance policy (facility fom) issued by Nuclear Energy Liability-Insurance Association or Mutual Atomic Energy Liability Underwriters, and

1 11 if also the sum of the amount of financial protection established under this agreement and the amounts of financial protection established under all other applicable agreements exceeds an amount equal to the sum of

) $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee shall not exceed a greater proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other applicable agreements.

ARTICLE III i

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(b) With respect to a comon occurrence, the obligations of the Com-mission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the  :

nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1)Thesumoftheamountsoffinancialprotectio,n established under this agreement and all other applicable agreerants; or (2) an amount equal to the sum of $200,000,000 and the amount available as ,

i secondary financial protection.

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i ARTICLE VIII  !

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1. Each licensee is required to have and maintain financial protection in an amount specified in Item 2a and b of the Attachment annexed hereto, and the amount available as secondary financial protection (in the form j J

of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges); Provided, however, 3 J

That under such a plan for deferred premium charges, such charges for each i nuclear reactor which is licensed to operate shall not exceed $63,000,000 with respect to any single nuclear incident (plus any surcharge assessed undersubsection1700.(1)(E)oftheAct)norexceed$10,000,000 per incident j within one calendar year. If the licensee fails to pay assessed deferred pre--  !

miums, the Commission reserves the right to pay those premiums on behalf of the Itcensee and to recover the amount of such premiums from the licensee.

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ll S. Section 140.93, Appendix C, is amended as follows:

Article I, paragraphs 1 and 7 are revised.

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l b. ArticleII, paragraphs 4(c)and8arerevised. .

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c. Article.III, paragraph 4(b) is revised,

d. Article VIII, paragraph I is revised.

13 i 140.93 Appendix C -- Form of indemnity agreement with licensees furnishing proof of financial protection in the form of licensee's resources.

ARTICLE I

1. " Nuclear reactor," " byproduct material," " person," " source mate-rial," "special nuclear material," and " precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Comission.

7. "Public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political sub-division of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Work-men's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporti.ng l vehicle, and (b) in connection with the licensee's possession, use, or transfer of the radioactive material; (2) claims arising out of an act of

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war;and(3)claimsforlossof,ordamageto,orloss'ofuseof(a) prop-erty which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and-(b),ifthenuclearincidentoccursinthecourseoftransportationofthe radioactive material, the transporting vehicle, containers used in such i transportation, and the radioactive material.

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• ARTICLE II 1 4.*** i (c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first i knew, or reasonably could have known, of his injury or damage a'nd the-cause thereof. >

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The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed' jurisdictional or, .;

j relating to an element in the cause of action. The waivers shall be j judicially enforceable in accordance with their terms' by the claimant against the person indemnified. ,

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8. With respect to a common occurrence, if the sum of the amount of financial protection established under this agreement'and the amount of j J

financial protection established under all other applicable agreements.

9 exceeds an amount equal to the sum of $200,000,000 and the amount avail--

l able as secondary financial protection, the obligations of the licensee ,'

1 described in paragraph 3 of this Article'shall not exceed a greater pro-portion of an amount equal to the sum of $200,000,000 and the amount I

available as secondary financial protection than the amount of financial l 2

protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other 1

applicable agreements. As used in this paragraph, and in Article III, l l

"other applicable agreements" means each other agreement entered into by the Commission pursuant to subsection 170c. or k. of the Act in which agreement )

i the nuclear , incident is defined as a "connon occurrence".

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.i ARTICLE III I l

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(b)Withrespecttoacommonoccurrence,theobligationsoftheCommis- l i

sion under this agreement shall apply only with respect to such public, liability and such damage to property of persons legally liable for the  !

nuclear incident (other than such property described in the proviso to' '

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16 Paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1)Thesumoftheamountsoffinancialprotection established under this agreement and to all other applicable agreements; or(2)anamountequaltothesumof$200,000,000 and the amount available as secondary financial protection.

ARTICLE VIII

1. Each licensee is required to have and maintain financial protection  ;

in an amount specified in Item 2 annexed hereto, and the amount available. i as secondary financial. protection (in the form of private liability insur-ance available under an industry retrospective rating plan providing for deferred premium charges): Provided, however, That under such a plan for deferred premium charges, such charges for each nuclear reactor which is licensed to operate shall not exceed $63,000,000 with respect to any single nuclear incident (plus any surcharge assessed under subsection 1700.(1)(E) of the Act) nor exceed $10,000,000 per incident within one calendar year. If the licensee fails to pay assessed deferred premiums, the Commission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee. ,

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6. Section 140.94, Appendix D, is amended as follows:

l a. Article I, paragraphs 1 and 6 are revised.

b. ArticleII, paragraphs 4(c)and6arerevised. l i 140.94 Appendix D -- Form of indemnity agreer.ent with Federal agencies.

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ARTICLE I 1 l 1

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1. " Nuclear reactor," " byproduct material," " person," " source mate-rial," "special nuclear material," and " precautionary evacuation" shall have the umanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission. l

6. "Public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including

18 all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the l l course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use, or J

transfer of the radioactive material; (2) claims arising out of an act of 1 war; and (3) claims for loss of, or damage to, or loss of use of (a) prop-erty which is located at the location and used in connection with the f licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such f transportation, and the radioactive material. J ARTICLE II  ;

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(c) Any issue or defense based on any statute of limitations if suit is i

l instituted within 3 years from the date on which the claimant first knew,

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or reasonably could have known, of his injury or damage and the cause s thereof. ,

The waiver of any such issue or defense shall be effective regardless j i

of whether such issue or defense.may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be I

judicially enforceable in accordance with their terms by the claimant against the person indemnified. <

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6. With respect to a common occurrence, the obligations of the Comis-sion under this Article shall apply only with respect to such public l liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2ofthisArticle)asintheaggregateexceedwhicheverofthe l

following is lower: (1)Thesumoftheamountoffinancialprotection established under all applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection. As used in this Article ' oplicable agreements" means each agreement entere(! into by the Commission pursuant to subsection 170c. or

k. of the Act in which agreement the nuclear incident is defined as "comon  ;

occurrence."

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7. Section 140.95, Appendix E, is amended as follows:

a. Article I, paragraphs I and 6 are revised,

b. ArticleII, paragraph 2(c)isrevised.

c. ArticleIII, paragraph 4(b)isrevised. .

d. Article IV, paragraph 1 is revised.

I 140.95 Appendix E -- Form of indemnity agreement with nonprofit educational institutions.

ARTICLE I

1. " Nuclear reactor," " byproduct material," " person," " source material,"

"special nuclear material," and " precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

6. "Public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political sub-division of a State, in the course of responding to a nuclear incident or

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precautionary evacuation), except (1) claims under State or Federal Work-men's Compensation Acts of employees of persons indemnified who are employed (a)atthelocationor,ifthenucleerincidentoccursinthe course of transportation of the radioactive material, on the transporting i l

vehicle, and (b) in connection with the licensee's possession, use, or transfer of the radioactive materic1; (2) claims arising out of an act of a war;and(3)claimsforlossof,ordamageto,orlossofuseof(a) prop-erty which is located at the location and used in coeuection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such i

transportation, and the radioactive material, 1

ARTICLE II i

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(c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof.

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The waiver of any such issue or defense shall be effective regardless l- of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be judicially , enforceable in accordance with their terms by the claimant ,

against the person indemnified.

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i ARTICLE III 4.***

(b) With respect to a common occurrence, the obligations of the Comis-sion under this agreement shall apply only with respect to such public. l l liability and such damage to property of persons legally ifable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1)Thesumoftheamountsoffinancialprotection estabitshedunderallapplicableagreements;or(2)anamountequalto the sum of $200,000,000 and the amount available as secondary financial ,

protection. As used in this Article " applicable agreements" means each agreement entered into by the Comission pursuant to subsection 170c. or

k. of the Act in which agreement the nuclear incident is defined as a " common occurrence."

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ARTICLE IV

1. When the Comission determines' that the United states will probably be required to make indemnity payments under the provisions of this agreement, the Comission shall have the right to collaborate with the licensee and other persons indemnified in the settlement'and defense of.,

any claim including such legal costs of the licensee as are approved by the Comission and shall have the right (a) to require the prior approval of the Comission for the settlement or paynent of arty claim or action asserted against the licensee or other. person indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Consnission may be required to indemnify under this agreement; and'(b) to appear through the Attorney General of the United States on behalf of the licensee or other person indeinnified, take charge of such action or defend any such action. ,

If the settlement or defense of any such action or claim is undertaken by j the Comission, the licensee shall furnish all reasonable assistance in.

effecting a settlement or asserting a defense.

8. Section 140.107, Appendix G, is amended as follows:

a. Article I, paragraphs I and 6 are revised.

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b. Article II, introductory text of paragraph 6 and paragraphs  !

6(a),6(b),and6(c)arerevised.

c. ArticleIII, paragraph 4(b)isrevised.

6 140.107 Appendix G -- Form of indemnity agreement with licensees processing plutor,ium for use in plutonium processing and fuel fabrication plants and furnishing insurance policies as proof of financial protection.  !

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ARTICLE I l

i I. " Byproduct material," " person," " source material," "special nuclear material," " precautionary evacuation," and " extraordinary nuclear occur- )

I rence" shall have the meanings given them in the Atomic Energy Act of j 1954, as amended, and the regulations issued by the Commission.

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6. "Public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including ]

all reasonable additional costs incurred by a State, or a political sub. -

division of a State, in the course of responding to a nuclear incident or ]

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e 25 precautionary evacuation), except (1) claims under State or Federal Work- j men's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use or i transferoftheradioactivematerial;(2)claimsarisingoutofanactof war; and (3) claims for loss of or damage to, or loss of use of (a) prop-erty which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b)ifthenuclearincidentoccursinthecourseoftransportationofthe.

radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

I ARTICLE II

6. With respect to any common occurrence, (a)IfthesumofthelimitofliabilityofanyNuclearEnergyLiabil-ity-Property Insurance Association policy designated in Item 5 of the  ;

Attachment and the limits of liability of all other nuclear energy liabil-ity insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability-Property Insurance Association exceeds $155,000,000, the amount of financial protection specified in

26 Item 2 a and b of the Attachment shall be deemed to be reduced by that proportion of the difference between said sum and $155,000,000 as the limit of liability of the Nuclear Energy Liability-Property Insurance Associattor) policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear energy liability insurance:

policies (facility form) applicable to such connon occurrence and issued by Nuclear Energy Liability-Property Insurance Association; (b) If the sum of the limit of liability of any Mutual Atomic Energy-Liability Underwriters policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Mutual Atomic Energy Liability Underwriters exceeds $45,000,000, the amount of financial protection specified in Item 2 a and b of the Attach-ment shall be deemed to be reduced by that proportion of the difference between said sum and $45,000,000 as the limit of liability of the Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear en-ergy liability insurance policies (facility form) applicable to such com-mon occurrence and issued by Mutual Atomic Energy Liability Underwriters; (c) If any of the other applicable agreements is with a person who has furnished financial protection in a form other than a nuclear energy lia-bility insurance policy (facility form) issued by Nuclear Energy Liabil-ity-Property Insurance Association or Mutual Atomic Energy Liability ,

Underwriters, and if also the sum of the amount of financial protection established under this agreement and the amounts of financial protection l

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27 established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee shall not exceed a greater 1

proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection than the amount of financial protection established under this agreement bears to the sum of such l amount and the amounts of financial protection established under all other applicable agreements.

ARTICLE III i

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(b)Withrespecttoacommonoccurrence,theobligationsoftheCom-mission under this agreement shall apply only with respect to such public  ;

liability and ruch damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed $200,000,000.

i

. 9. Section 140.108, Appendix H, is amended as follows:

a. Article I, paragraphs 1 and 6 are revised.

b. Article II, paragraph 6 is revised.

4

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I 1

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c. ArticleIII, paragraph 4(b)isrevised. ]

1 I

i 140.108 Appendix H -- Form of indemnity agreement with licensees possessing plutonium for use in plutonium processing and fuel fabrication plants and furnishing proof of financial protection )

H in the form of the licensee's resources.  ;

1 l

• * * *

• i j

ARTICLE I

1. " Byproduct material," " person," " source material," "special nuclear material," " precautionary evacuation," and " extraordinary nuclear occur-rence" shall have the meanings given them in the Atomic Energy Act of i

1954, as amended, and the regulations issued by the Comission.

• * * *

• i 1

6. "Public liability" means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political sub-4 division of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Work-men's Compensation Acts of employees of persons indemnified who are i

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29 l l

l l employed (a)atthelocationor,ifthenuclearincidentoccursinthe course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use or transfer of the radioactive material; (2) claims arising out of an act of j i

war; and (3) claims for loss of, or damage to, or loss of use of (a) property  !

I which is located at the location and used in connection with the licensee's ,

possession, use, or transfer of the radioactive material, and (b) if the l

nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material. .

• * * *

• f l

ARTICLE II l

, 1

6. With respect to any common occurrence, if the sum of the amount of financial protection established uader this agreement and the amount of financial protection established under all other applicable agreements 1

exceeds an amount equal to tne sum of $200,000,000 and the amount avail- ,

eble as secondary financial protection, the obligations of the licensee described in paragraph 3 of this Article shall not exceed a greater pro-portion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other

1 30 applicable agreements. As used in this paragraph, and in Article III, "other applicable agreements" means each other agreement entered into by the Comission pursuant to subsection 170c. or k. of the Act in which agreement the nuclear incident is defined as a " common occurrence."

ARTICLE III 4.***

i (b) With respect to a common occurrence, the obligations of the Com-mission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2ofthisArticle)asintheaggregateexceed$200,000,000.

I Dated at Rockville, MD, this 30th of May 1989.

For The Nuclear Regulatory Comission.

Vic4dt' 5tello J ExecutiveDiNe r rations

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