ML23156A400

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PR-140 - 53FR51120 - Financial Protection Requirements and Indemnity Agreements: Miscellaneous Amendments Necessitated by Changes in the Price-Anderson Act
ML23156A400
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Issue date: 12/20/1988
From: Chilk S
NRC/SECY
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PR-140, 53FR51120
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ADAMS Template: SECY-067 12/20/1988 PR-140 - 53FR51120 - FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITYAGREEMENTS:

MISCELLANEOUS AMENDMENTS NECESSITATED BY CHANGES IN THE PRICE-ANDERSON ACT PR-140 53FR51120 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF PROPOSED RULE:

PR-140 RULE NAME:

FI NANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AG REEMENTS: MISCELLANEOUS AMENDMENTS NECESSITATED BY CHANGES IN THE PRICE-ANDERSON ACT PROPOSED RULE FED REG CITE:

53FR51120 PROPOSED RULE PUBLICATION DATE:

12/20/88 ORIGINAL DATE FOR COMMENTS: 01/04/89 NUMBER OF COMMENTS:

EXTENSION DATE:

I I

1 1

FINAL RULE FED. REG. CITE: 54FR24157 FINAL RULE PUBLICATION DATE: 06/06/89 TES ON: COMMISSION APPROVED FINAL RULE BY 4-0 VOTE (SRM-M890518). EDO SIGN ATUS ED FINAL RULE.

OF RULE FILE LOCATED ON Pl.

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-140 RULE TITLE:

FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AG REEMU~l~S: MISCELLANEOUS AMENDMENTS NECESSITATED BY CHANGES IN THE PRICE-ANDERSON ACT PROPOSED RULE SECY PAPER: 88-316 FINAL RULE SECY PAPER: 89-146 CONTACTl: IRA DINITZ CONTACT2:

PROPOSED RULE DATE PROPOSED RULE SRM DATE:

11/28/88 SIGNED BY SECRETARY:

12/15/88 FINAL RULE DATE FINAL RULE SRM DATE:

05/25/89 SIGNED BY SECRETARY:

05/30/89 STAFF CONTACTS ON THE RULE MAIL STOP: 12 E4 MAIL STOP:

PHONE: 492-1289 PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY

DOCKET NO. PR-140 (53FR51 120)

In the Matter of FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AG REEMENTS: MISCELLANEOUS AMENDMENTS NECESSITATED BY CHANGES IN THE PRICE-ANDERSON ACT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 12/15/88 01/09/89 01/09/89 06/02/89 12/15/88 FEDERAL REGISTER NOTICE - PROPOSED RULE 01/01/89 MARVIN LEWIS REQUESTS THE COMMENT PERIOD TO BE EXTENDED 01/04/89 COMMENT OF NUCLEAR MANAGEMENT AND RESOURCES COUNCIL (JOE COLVIN) (

l}

05/30/89 FEDERAL REGISTER NOTICE - FINAL RULE

DOCKET NUMBER PR BROPOSED RULE

'-I-~

Copy to Secy-Original sent to the Office of the PJderal Register for publication

( ~3 { ~ 5 I J~OJ [7590-01J NUCLEAR REGULATORY COMMISSION 10 CFR PART 140 R IN: 3150-ADOB Financial Protection Requirements and Agreements; Miscellaneous Amendments Necessitated By Changes in the Price-Anderson Act AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final Rule.

SUMMARY

The Nuclear Regulatory Commission is amending its regulations to conform to changes made to the Price-Anderson Act by "The Price-Anderson Amendments Act of 1988, 11 which was enacted on August 20, 1988.

The Cormiission is also amending its regulations to increase the level of the primary layer of financial pro-

~ equired of r ~tain indemnified licensees. The provisions of Section 170 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 Commission 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.

EFFECTIVE DATE:

July 1, 1989.

FOR FURTHER INFORMATION CONTACT:

Ira Dinitz, Policy Development and Financial Evaluation Section, Policy Development and Technical Support Branch, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Co1T111ission, DC 20555, Telephone: (301)492-1289.

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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 COfTlllission 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

  • 9 were received on the proposed rule. The first co1T1J1enter, without indicating a need, requested an extension of the comment period, which the NRC did not believe was warranted. The other co11111enter 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, as specified in subsection 1700.(l)(E) of the Act, has been incor-porated into the regulations. Second, the regulations have been clarified to specify that the $10 million annual deferred pre~ium would be assessed on a 11per**1ncident* basis as implied in the Act and as clearly indicated in the legislative history.

Section 170 of the Atomic Energy Act of 1954, as amended, (the Act) requires production and utilization facility licensees to have and fflaintain financia 1 protection to cover pub lie liability claims resulting from a nuclear incident or precautionary evacuation. Section 170 also requires the Nuclear Regulatory C0111T1ission 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 the Act requires that for facilities designed for producing substantial amounts

3 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 form of private insurance, private contractual indemnities, self-insurance or other proof of financial responsibility, or combination of such measures.

The insurers who provide the nuclear liability insurance, American Nuclear Insurers (ANI) and Mutual Atomic Energy Liability Underwriters (MAELU), have advised the Colllllissfon that the maximum amount of primary nuclear energy liability insurance available has been increased from $160 million to $200 million.

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

Environmental Impact: Categorical Exclusion The C011111ission has determined that this rule is the type of action described as a categorical exclusion in 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

4 Paperwork Reduction Act Statement This rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) Existing requirements were approved by the Office of Management and Budget approval number 3150-0039.

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

the C011111ission hereby certifies that this rule will not have a significant economic effect on a substantial number of small entities. This rule applies only to nuclear power plant licensees which are electric utility companies dominant in their service areas. These licensees are not 11small entitiesu as set forth in the Regulatory Flexibility Act and do not meet the standards set forth for small businesses in Small Business Administration regulations in 13 CFR Part 121.

Backfit Analysis The NRC has determined that the backfft rule, 10 CFR 50.109, does not apply to this rule, and therefore, that a backfit analysis is not required for this rule. These amendments are required to conform NRC regulations to

5 statutory directives and do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a){l).

List of Subjects in 10 CFR Part 140 Extraordinary nuclear occurrence, Insurance, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalty, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the 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.

PART 140 - FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AGREEMENTS

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

AUTHORITY:

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

{42 u.s.c. 5841, 5842).

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

§§ 140.ll(a), 140.12(a), 140.13, and 140.13a are issued under sec. 161b., 68 Stat. 948, as amended (42 U.S.C. 2201(b)); and§ 140.6 is issued under sec. 1610., 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

6

2. In§ 140.11, paragraph (a)(4) is revised and the introductory text (a) fs provided for the convenience of the user to read as follows:

§ 140.11 Amounts of financial protection for certain reactors.

(a) Each licensee fs required to have and maintain financial protection:

(4) In an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection (in the fonn-of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges equal to the pro rata share of the aggregate public liability claims and costs, exclud,ing costs payment of which is not authorized by section 1700.(l)(D), in excess of that covered by primary financial protection) for each nuclear reactor which is licensed to operate and which 1s designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more:

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

$63,000,000 with respect to any nuclear incident (plus any surcharge assessed under subsection 1700.(l){E) of the Act) and no more than

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

3. In§ Section 140.13a, paragraph (a) is revised to read as follows:

7

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

(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§ 140.14 in the amount of $200,000,000.

Proof of fi-nancial protection shall be filed with the Connnission in the manner in

§ 140.15 prior to issuance of the license under Part 70 of this chapter.

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, and paragraphs 8(a), 8(b), and 8(c) are revised.

c.

Article III, paragraph 4{b) is revised.

d.

Article VIII, paragraph 1 is revised.

§ 140.92 Appendix B -- Fonn of indemnity agreement with licensees furnishing insurance policies as proof of financial protection.

8 ARTICLE I

1. "Nuclear reactor," "byproduct material," "person," usource mate-rial," "special nuclear material," and "precautionary evacuation 11 shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.
7. uPublic liabilityN 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 indeDU1ified 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 transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property 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 nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

9 ARTICLE II

4. * * *

(c) Any issue or defense based on any statute of limitations ff 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.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed juris~ictional 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.

8. With respect to any common occurrence, (a) If the sum of limit of liability of any Nuclear Energy Liability 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 conrnon occurrence and issued

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 said 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 co111T1on occurrence and issued by Nuclear Energy Liability 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 conmen 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 fonn other than a nuclear energy lia-bility insurance policy (facility fonn) issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters, and

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

4. * * *

(b) With respect to a conunon 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 1n the aggregate exceed whichever of the following is lower:

(1) The sum of the amounts of financial protection established under this agreement and all other applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection.

12 ARTICLE VIII

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 of private liability insurance 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.(l)(E) of the Act) nor exceed $10,000,000 per incident within one calendar year. If the licensee fails to pay assessed deferred pre-miums, the Co11111ission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee.
5. Section 140.93, Appendix C, is amended as follows:
a.

Article I, paragraphs 1 and 7 are revised.

b.

Article II, paragraphs 4(c) and 8 are revised.

c.

Article Ill, paragraph 4(b) is revised.

d.

Article VIII, paragraph 1 is revised.

13

§ 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. NNuclear reactor," Nbyproduct material," "person,N "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 CoD111ission.
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 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

14 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), 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 material.

ARTICLE II

4. * * *

(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.

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 against the person inde~nified.

15

8.

With respect to a colTVllOn occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount avail-able 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 applicable agreements.

As used in this paragraph, and in Article III, nother applicable agreements" means each other agreement entered into by the Corrmission pursuant to subsection 170c. or k. of the Act in which agreement the nuclear incident is defined as a RcolllllOn occurrence 11

  • ARTICLE III
4. * * *

(b) With respect to a c0111110n occurrence, the obligations of the C01T111is-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

16 Paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower:

(1) The sum of the amounts of financial protection established under this agreement and to all other applicable agreements; or (2) an amount equal to the sum of $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 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.(l)(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 Conunission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee.

17

6.

Section 140.94, Appendix D, is amended as follows:

a.

Article I, paragraphs 1 and 6 are revised.

b.

Article II, paragraphs 4(c) and 6 are revised.

§ 140.94 Appendix D -- Form of indemnity agreement with Federal agencies.

ARTICLE I

1. *Nuclear reactor," "byproduct material," "person,* "source mate-rial,a "special nuclear material," and "precautionary evacuationu shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the C0111Rission.
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 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 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) 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 material.

ARTICLE II

4. * * *

(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,

19 or reasonably could have known, of his injury or damage and the cause 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 against the person indemnified.

6. With respect to a corrmon occurrence, the obligations of the CoRlllis-sion under this Article 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) The sum of the amount of financial protection established under all applicable agreements; or (2) an aR10unt equal to 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 Commission pursuant to subsection 170c. or

k. of the Act in which agreement the nuclear incident is defined as "co111T10n occurrence.a

20

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

Article I, paragraphs 1 and 6 are revised.

b.

Article II, paragraph 2(c) 1s revised.

c.

Article III, paragraph 4(b) 1s revised.

d.

Article IV, paragraph 1 is revised.

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

ARTICLE I

1.

"Nuclear ree.ctor," "byproduct material," "person," usource material,"

"special nuclear material, 11 and "precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Corrmission.

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

21 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 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 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) 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 material.

ARTICLE II

2. * * *

(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.

22 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 against the person indemnified.

ARTICLE III

4. * * *

{b) With respect to a coRJnon occurrence, the obligations.of the Con111is-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 paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower:

(1) The sum of the amounts of financial protection 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 "applicable agreements* means each agreement entered into by the ColT!l'lission pursuant to subsection 170c. or

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

23 ARTICLE IV

1. When the Conunission determines that the United states will probably be required to make indemnity payments under the provisions of this agreement, the Commission 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 ColIITlission and shall have the right (a) to require the prior approval of the C011111ission for the settlement or payment of any 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 Conmission inay 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 indemnified, take charge of such action or defend any such action.

If the settlement or defense of any such action or claim is undertaken by the C011111ission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

8. Section 140.107, Appendix 6, is amended as follows:
a.

Article I, paragraphs 1 and 6 are revised.

24

b.

Article II, introductory text of paragraph 6 and paragraphs 6(a), 6(b), and 6(c) are revised.

c.

Article III, paragraph 4(b) fs revised.

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

ARTICLE I

1. "Byproduct material," "person," asource material, 11 aspec.ial nuclear material,"

11precautionary evacuation," and "extraordinary nuclear occur-rence" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the C001111fssfon.

6. *Public liab111ty 11 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

25 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 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 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} 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 material.

ARTICLE II

6. With respect to any corrmon occurren~e, (a) If the sum of the limit of liability of any Nuclear Energy Liabil-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 co111110n 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 Association policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuc1ear energy liability insurance policies (facility form) applicable to such cormnon 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 c0111110n 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 fonn) 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

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 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

4. * * *

(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 2 of this Article) as in the aggregate exceed $200,000,000.

9.

Section 140.108, Appendix H, 1s amended as follows:

a.

Article I, paragraphs 1 and 6 are revised.

b.

Article II, paragraph 6 fs revised.

28

c.

Article III, paragraph 4(b) is revised.

§ 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 in the fonn of the licensee's resources.

ARTICLE I

1. "Byproduct material," "person," "source material, 11 "special nuclear materia 1," *precautionary evacuation, 11 and *extraordinary nuclear occur-rence" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the COD111ission.
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 precautionary evacuation), except (1) claims under State or Federal Work-men's Compensation Acts of employees of persons indemnified who are

29 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 transfer of the radioactive material; (2) claims arising out of an act of war; and {3) claims for loss of, or damage to, or loss of use of (a) property 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 nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

ARTICLE II

6. With respect to any comnon occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount avail-able 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

30 applicable agreements.

As used in this paragraph, and in Article III, Mother applicable agreements" means each other agreement entered into by the Connission pursuant to subsection 170c. or k. of the Act in which agreement the nuclear incident 1s defined as a *coI11T10n occurrence.M ARTICLE III

4. * * *

(b) With respect to a cOD1110n 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 $200,000,000.

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

For The Nuclear Regulatory Coll'mlission.

QJ 1776 Eye Street, N.W

  • Suite 300

[2021 872-1280

  • s9 JAN -9 Pl2 :08 Joe F. Colvin Executive Vice President &

Chief Operating Officer Mr. Samuel J. Chilk Secretary U.S. Nuclear Reralatory Commission Washington, D.C.

20555 Attention: Docketing and Service Branch January 4, 1989 1jp, **.

DOCr.t I!'*. '*

y 8R.s..N "'

Re:

Proposed Rule - Financial Protection Requi rements and Indemnity Agreements; Miscellaneous Amendments Necessitated by Changes in the Price-Anderson Act 53 FR 51120 (December 20, 1988)

Request for Comments

Dear Mr. Chilk:

The enclosed comments are submitted on behalf of the Nuclear Management and Resources Council, Inc. (NUMARC) to the proposed rule of the U.S. Nuclear Regulatory Commission ("NRC"), entitled "Financial Protection Requirements and Indemnity Agreements; Miscel laneous Amendments Necessitated by Changes in the Price-Anderson Act," publ ished on December 20, 1988.

NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry: Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC.

In addition, NUMARC's members include major architect-engineering firms and all of the major nuclear steam supply system vendors.

The Price-Anderson Amendments Act of 1988 (Pub. L. 100-408) modifies the Price-Anderson Act and extends it to August 1, 2002. Appropriate changes must be made to the NRC's regulations to conform to those requirements.

The changes proposed by the NRC in the proposed rule are consistent with those statutory requirements but do not accomplish all of the regulatory changes that will be required.

We encourage the NRC to proceed promptly with the other regul atory changes required to fully impl ement the statutory requirements of the Price-Anderson Amendments Act and to address the implications of those changes in an appropriate rulemaki ng proceeding.

Sincerely,

~ 1--~'---

F. Colvin JFC/RWB:bb FEB 1 6 1989,.

~gelt!Y/

eii'cliil

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..,,, NUCLEAR REGULATORY COMMISS(Oti OOCKETING & 5ERVIC£ SECTION OFFICE Of ln~ SECRET ARY OF THE COMMISSION Document Sufotics J9 o, 1mMfc Dare __ /::s-r~_

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  • a9 JAN -9 A10 :18 Mar v in I. Lewis 7801 Roosevelt Blvd.

Phila., PA 19152 (215) 624 1574 Secretary

  1. 62 Nuclear Regulatory Commission Washington, D. C. 20555

,a r Sir c,r Ms; OF~ II'*

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BR.A NLl-1 Certain actions of the NRC have recentl y been unfair and have raised the specter of unfair timing and practices on the par t of the NRC Both actions were very important, but precipitousl y short, comment periods between announcement and end of comment period.

The fi r st is the notice of the changes in regulations to conform to the Price Anderson Act. The Notice came on 12-31-88.

The Federal Register Notice is unavailable due to mailing delays and lack of publication of the Federal Register date in the News Release dated 12-30-88. The comment period ends on 1-4-89. Today is 1 1-89. The shortness of this timing makes any mention of unfairness reduMdant.

The second refers to the Polic y statement on Exemptions From Regulatory Contr ol dated 12-12-88 and received on 12-31-88. The comment pei**iod ends 1-30*-89, but the notice refers to and e,:nnounces a meeting on 1*-12-*89. This notice has far reaching c onsequences which will allow many more instances such as the poor practices seen at the Savannah River Plant to be replayed at many c ommercial fa c ilities due to lack of on-site regulation which this notice ~romotes.

I r espectfull y urge and request that these two ver y importa nt and far r eaching comment periods be immediately extended.

Respectfully submitted,

~~-

Marvin I. Lewis 7801 Roosevelt Blvd. #62 Phila., PA 19152 (215) 624 1574 1-1-89 r..

v,r:r

J. l NUCLtA~ lE~UlAfORV COMMISSIOll DOCKETING & SERVICE SECTION

/

OFFICE OF THE SECRET ARY, OF THE COMMISSION Document Statistics

?ostmar~ Date f Copies Received -~--A------

A d d' I Copies Reproduced J ------

Special Distribution f ID fl) JJj

NUCLEAR REGULATORY COMMISSION 10 CFR PART 140

  • aa DEC 15 A10 :QS vFr ',

OOCh Financial Protection Requirements and Indemnity Agreements; Miscellaneous Amendments Necessitated By Changes in the Price-Anderson Act AGENCY:

Nuclear Regulatory Co1m1ission.

ACTION:

Proposed Rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to amend its regulations to conform to changes made to the Price-Anderson Act by "The Price-Anderson Amendments Act of 1988, 11 which was enacted on August 20, 1988.

The Commission is also proposing to amend its regulations to increase the level of the primary layer of financial protection required of certain indemnified licensees. The provisions of Section 170 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 Commission is proposing to amend 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 proposed change would provide additional insurance to pay public liability claims arising out of a nuclear incident.

DATES:

The comment period expires Januar.r4, 1989!

Comments received after this date will be considered if it is practical to do so but the Colllllission is able to assure consideration only for co111T1ents on or before this date.

ADDRESSES:

Mail comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Deliver co1m1ents to: 11555 Rockville Pike, Rockville, Maryland, between

.5. NUCLEAR RLGUI A TORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY OF THE COMMISSION Document Statistics Postmark Date

___cN:...1::j)---'---------

Copies Received J

Add' I Copies Reproduced..L------

Special Distribution

2 7:30 a.m. and 4:15 p.m. Federal workdays.

Examine copies of comments received at:

The NRC Public Document Room, 2120 L Street NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Ira Dinitz, Policy Development and Financial Eva-luat-ion Section,Policy Development and 'fechni-cal Support Bran-ch,__oOffice of Nuclear Reactor Regulation, Telephone: (301) 492-1289, SUPPLEMENTARY INFORMATION:

On August 20, 1988, "The Price-Anderson Amendments Act of 1988 11 was enacted as Pub. L. 100-408. This legislation modifies and extends for 15 years (to August 1, 2002) the Price-Anderson Act.

This notice proposes to amend certain provisions of 10 CFR Part 140 to conform to changes made by Pub. L. 100-408.

Section 170 of the Atomic Energy Act of 1954, as amended, (the Act) 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 Commission 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 the Act requires that for facilities designed for producing substantial amounts 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 form of private insurance, private contractual indemnities, self-insurance or other proof of financial responsibility, or combination of such measures.

The insurers who provide the nuclear liability insurance, American Nuclear Insurers (ANI) and Mutual Atomic Energy Liability Underwriters (MAELU), have

3 advised the Co1TDTiission that the maximum amount of primary nuclear energy liability insurance available has been increased from $160 million to $200 million.

Pursuant to the provisions of subsection 170b. of the Act, the amount of primary

____ fj_n_a_n_cjaJ_ pcotecti on-required -fa~ faG-i-1 i-t-ies-hav-i-ng-a-ra-ted -capaci-ty-of-1-00,ooo-------

el ectri cal kilowatts or more is proposed to be increased to $200 million.

Environmental Impact: Categorical Exclusion The Co11111ission has determined that this proposed rule is the type of action described as a categorical exclusion in 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.

Paperwork Reduction Act Statement This proposed rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) Existing requirements were approved by the Office of Management and Budget approval number 3150-0039.

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

the Coimnission hereby certifies that this proposed rule will not have a significant

4 economic effect on a substantial number of small entities. This ru'le applies only to nuclear power plant licensees which are electric utility companies dominant in their service areas. These licensees' are not "small entities" as

---~~e_Lfor..th_jJL_the-ReguJato~y-Elex~h-1-itty-Act-a-nd-do-n~t-meet-the-s-tandar-d~-s~et-----

forth for small businesses in Small Business Administration regulations in 13 CFR Part 121.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis is not required for this proposed rule. These amendments are required to conform NRC regulations to statutory directives and do not involve any provisions' which would impose backfits as defined in 10 CFR 50.109(a)(l).

List of Subjects in 10 CFR Part 140 Extraordinary nuclear occurrence, Insurance, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalty, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the 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 proposing to adopt the following amendments to 10 CFR Part 140.

PART 140 - FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AGREEMENTS

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

AUTHORITY:

Secs. 161, 170, 68 Stat. 948, 71 Stat. 576, as amended (42 U.S.C. 2201, 2210); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 u.s.c. 5841, 5842).

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

§§ 140.ll(a), 140.12(a), 140.13, and 140.13a are issued under sec. 161b., 68 Stat. 948, as amended (42 U.S.C. 2201(b)); and§ 140.6 is issued under sec. 1610., 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

2. In§ 140.11, paragraph (a)(4) is revised to read as follows:

§ 140.11 Amounts of financial protection for certain reactors.

(a) Each licensee is required to have and maintain financial protection:

(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 providing for deferred premium charges) for each nuclear reactor which is licensed to operate and which is designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more:

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 and no more than

~

~-

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

3. In§ Section 140.13a, paragraph (a) is revised to read as follows:

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

{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 pl~nt is required to have and maintain financial protection in the form specified in§ 140.14 in the amount of $200,000,000. Proof of fi-nancia 1 protection sha 11 be filed with the Co1J111ission in the manner in

§ 140.15 prior to issuance of the license under Part 70 of this chapter.

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, and paragraphs 8(a), 8{b), and 8(c) are revised.

c.

Article III, paragraph 4(b) is revised.

d.

Article VIII, paragraph 1 is revised.

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

ARTICLE I

1. "Nuclear reactor, 11 "byproduct material," "person," "source mate-rial," "special nuclear material, 11 and "precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Cormni'ssion.
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 (l} 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 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 war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located' at the location and used in connection with the licensee 1 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

- __ transp~rti~g yeni~leLcpntainers used in such transportation, and the radioactive material.

ARTICLE II

4. * * *

(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.

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 against the person indemnified.

8. With respect to any common occurrence, (a) If the sum of limit of liability of any Nuclear Energy Liability Insurance Association policy designated in Item 5 of the Attachment and

-- -the-Limits Df _l tabiJJ.ty _of i!J l_Q_~her_ ~uclear energy 1 iabil ity insurance

~-

policies (facility form) applicable to such common occurrence and issued 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 said 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 1 iabi l ity of a 11 nuclear energy liability insurance policies (facility form} applicable to such common occurrence and issued by Nuclear Energy Liability 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 su.ch common occurrence and issued by Mutual Atomic Energy Liability Underwriters exceeds $45,000,000, the amount of financial protect~on 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 1s 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 Liability

-Insur-ance-Assoc-iat-ion _or __ Mutual_A_t.P_l!li_C Energy Liability Underwriters, and

--* *-- -~-..... -

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 4(a) * * *

(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 2 of this Article) as in the aggregate exceed whichever of the following is lower:

(1) The sum of the amounts of financial protection

- established-under-this-agreement_anD_~ll _oJ~er~pplj~a~J~ agreements; or (2) an amount equal to the sum of $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 2a and b of the Attachment annexed hereto, and the amount available as secondary financial protection (in the form of private liability insurance 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 nor exceed $10,000,000 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 licensee and to recover the amount of such premiums from the licensee.

)

5. Section 140.93, Appendix C, is amended as follows:
a.

Article I, paragraphs 1 and 7 are revised.

b.

Article II, paragraphs 4(c) and 8 are revised.

---c.

  • Article III, paragraphs -4(b_) is.. re.v.i_se_d.
d.

Article VIII, paragraph 1 is revised.

§ 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 11precautionary evacuation" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Cormnission.
7. "Public 1iability 11 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 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 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), 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 material.

ARTICLE II

4. * * *

(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.

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 against the person indemnified.

8. With respect to a co1T1110n occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount avail-able 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 applicable agreements.

As used in this paragraph, and in Article III, "other applicable agreements 11 means each other agreement entered into by the Conrnission pursuant to subsection 170c. of the Act in which agreement the nuclear incident is defined as a 11conrnon occurrence".

ARTICLE II I 4(a) * * *

(b) With respect to a common occurrence, the obligations of the Colilllis-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 paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower:

(1) The sum of the amounts of financial protection established under this agreement and to all other applicable agreements; or (2) an amount equal to the sum of $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 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 nor exceed $10,000,000 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.

6.

Section 140.94, Appendix D, is amended as follows:

a.

Article I, paragraphs 1 and 6 are revised.

b.

Article II, paragraphs 4(c) and 6 are revised.

§ 140.94 Appendix D -- Form of indemnity agreement with Federal agencies.

ARTICLE I

1. "Nuclear reactor, 11 "byproduct materia 1, 11 "person, 11 "source mate-rial, 11 "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 Con-mission.
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 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 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 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) 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 material.

ARTICLE II

4. * * *

(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.

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 against the person indemnified.

6. With respect to a common occurrence, the obligations of the Commis-sion under this Article 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) The sum of the amount of financial protection established under all applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial p_rotection. As used in this Article "applicable agreements" means each agreement entered into by the Commission pursuant to subsection 170c. of the Act in which agreement the nuclear incident is defined as "common occurrence.

11

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

Article I, paragraphs 1 and 6 are revised.

b.

Article II, paragraph 2(c) is revised.

c.

Article III, paragraph 4(b) is revised.

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

ARTICLE I

1.

"Nuclear reactor, 11 "byproduct material,"

11person, 11 "source material,"

"special nuclear mater1a l t and "precautionary evacuation" sha 11 have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Cormnission.

6. "Public 1iability 11 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 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 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) 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 material.

ARTICLE II

2. * * *

(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.

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 against the person indemnified.

ARTICLE III 4(a) * * *

(b) With respect to a common occurrence, the obligations of the Commission 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) The sum of the amounts of financial protection established under all applicable agreements; or (2) an amount equal to I

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 CoR1T1ission pursuant to subsection 170c. of the Act in which agreement the nuclear incident is defined as a ucoR1T1on occurrence.

11

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

Article I, paragraphs 1 and 6 are revised.

b.

Article II, introductory text of paragraph 6 and paragraphs 6(a), 6(b), and 6(c) are revised.

c.

Article III, paragraph 4(b) is revised.

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

ARTICLE I

1. "Byproduct material," "person," "source material," "special nuclear materia 1, 11 11precaut ionary evacuation," and 11extraordinary nuclear occur-rence" shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the CoD111ission.
6. "Public liability 11 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-men1s 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 1s possession, use or transfer of the radioactive material; (2) claims arising out of an act of 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) 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 material.

ARTICLE II

6. With respect to any common occurrence, (a) If the sum of the limit of liability of any Nuclear Energy Liabil-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 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

~

,.. -~

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-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

/

~ 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 a~ amount equal tJ 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 4(a) * * *

(b) With respect to a common occurrence, the obligations of the Com-I 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 $200,000,000.

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.

c.

Article III, paragraph 4(b) is revised.

§ 140.108 Appendix H -- Form of indemnity agreement with licensees

_po~sessi_ng pl_utoni_!Jm _for use_ in p!ut_on_~um_proces~ing and fuel fabrication plants and furnishing proof of financial protection in the form of the licensee's resources.

ARTICLE I I. "Byproduct material, 11 11 person, 11 "source material," "special nuclear material," "precautionary evacuation," and "extraordinary nuclear occur-rence" 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 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 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 war; and (3) claims for loss of, or damage to, or loss of use of (a) property

__________ whi_ch is_ located at_ the locat!_o_!!_ and __ used _ in_ connection _wj_th_!~e_ ~~ cens~-e~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 transportation, and the radioactive material.

ARTICLE II

6. With respect to any common occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount avail-able 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 applicable agreements.

As used in this paragraph, and in Article III, "other applicable agreements" means each other agreement entered into by

  • the Corrmission pursuant to subsection 170c. or k. of the Act in which agreement the nuclear incident is defined as a 11common occurrence."

ARTICLE III 4(a) * * *

(b) With respect to a cormnon 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 $200,000,000.

Dated at Rockville, MD, this 15th of December 1988.

For The Nuclear Regulatory Cormnission

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