United States Senate
Committee on Environment and Public Works
Subcommittee on Transportation, Infrastructure, and Nuclear Safety
Testimony of Dan Guttman
Price-Anderson Act Reauthorization
January 23, 2002
My name is Dan Guttman, My work address is 1155 15th Street, N.W., Suite 410; telephone no. 202-638-6050; email: email@example.com. Thank you for the opportunity to appear before you today.
I am an attorney in private practice. I am a Fellow at the Washington Center for the Study of American Government at Johns Hopkins University and of the National Academy of Public Administration. I appear on my own behalf as a citizen, but am privileged to draw on experience relating to the operations of nuclear power plants, the nation=s nuclear weapons complex, and Cold War related exposures of citizens, nuclear weapons workers and Aatomic veterans@ to radiation risk.
In the interim since the 1988 Price-Anderson Act amendments, Federal court decisions construing the law, electric utility industry restructuring, and inquiries and enactments treating revelations of Cold War era radiation exposures to citizens, soldiers, and nuclear weapons workers have highlighted issues which merit attention in current Congressional consideration of the Price-Anderson Act. This testimony will seek to identify some of these questions, which, of course, are now framed by the events of September 11, 2001.
Courts have agreed that the 1988 Price Anderson Act Amendments fundamentally restructured the law by: (1) creating a federal cause of action (Apublic liability@) for claims related to nuclear incidents; where such claim exists, state law based claims on the facts are, with limited exception, precluded;  (2) providing that the legal principles, or rules of decision, for determining public liability are rooted in state law. However, in the context of this agreement, and with further developments since 1988 in mind, issues that warrant current attention include:
(1) What conduct will trigger, and require, Price Anderson Act jurisdiction?
Court decisions call into question: (a) whether the Act covers conduct that is intentional (as well as conduct that is accidental); (b) whether the Act requires that the defendant(s) be party to an indemnification agreement with the government; (c) whether the Act reaches into disputes regarding common commercial products; for example, watch dials.
Congress may wish to resolve conflicts or misunderstandings on the basis for, and scope of, Price-Anderson Act jurisdiction raised by court decisions.
(2) Are Acts of Terrorism Covered by the Act?
The Price Anderson Act (through the definition of Apublic liability@) excludes claims Aarising out of acts of war,@ raising obvious questions about the Act=s coverage of damage and injuries stemming from acts of terrorism.
Congress may wish to consider whether the Price-Anderson Act should be amended to expressly address terrorist acts. Does Congress intend to cover Aacts of terrorism?@ If so, is the current statutory wording clear enough to embrace this intent? If the intent is not to cover nuclear accidents caused by acts of terrorism, how will they be covered? Assuming the intent is to cover such acts, what kind of finding or declaration will be required to trigger the Act --- and who shall be empowered to make this finding?
(3) Will The Retrospective Unit Owner Funding Required by the Act be Available in the Deregulation Era?
The Act relies on nuclear unit owners to make Aretrospective@ (i.e., post-accident) contributions where the initial tier of insurance is exhausted by an accident. Under the Act=s present terms, and given the current number of operating units, this obligation may be in the range of $80-90 million per unit -- or over $ 9 billion dollars. The Aretrospective@ nuclear plant owner obligation, in short, is relied on to provide the lion=s share of funding for relief in a major accident.
Since 1988, the utility industry has undergone profound restructuring, hallmarked by nuclear unit divestitures, corporate restructuring, and the consolidation of nuclear unit ownership. This restructuring, particularly when coupled with the well-known financial difficulties of major California utilities and Enron, raises questions about the premises of retrospective funding. The basic concern was identified in the NRC=s 1998 Price-Anderson report to Congress, and it has just been underscored by a December, 2001 GAO report, which found that NRC reviews of license transfer applications did not provide adequate assurance that new corporate owners will have sums needed to provide for future decommissioning costs.
Indeed, the form restructuring is taking may render the public particularly vulnerable to funding shortfalls. As the GAO report observed, nuclear units are being consolidated under a limited number of Afleet@ owners. This consolidation may yield important benefits in safety, reliability, and accountability. On the other hand, consolidation of ownership raises the possibility that the owner may have to bear retrospective payment burden measured in the hundreds, not tens, of millions, and the further possibility that the ripple of effects of an any nuclear accident on any utility system may cause cross-the-board unit shutdowns that will leave the Afleet@ owner without revenue sources to pay retrospective commitments.
Congress should act to assure that industry restructuring does not come at the cost of the integrity of the Act=s funding, whether by assuring that NRC license transfers provide for the needed commitments, specifying particular commitments (e.g., prepayment or reserve for Price Anderson obligations as condition for license transfer), or providing for a review and further steps thereafter.
(4) Should There be Clear and Consistent Treatment of Willful or Reckless Misconduct?
Potential liability for willful or reckless misconduct appears to differ depending upon whether the actor is a NRC licensee, a Department of Defense contractor, or a Department of Energy contractor. In the first case, courts have indicated that actors may, to some degree that itself may benefit from clarification, be liable for punitive damages; in the second case, procurement rules provide for limitation on indemnification in the case of willful misconduct, in the third case there is no evident limitation on indemnification.
Congress may wish to consider whether there is reason for the differing set of rules and, if not, to provide for a clear and consistent set.
(5) When Should State Established Duty(ies) of Care be Preempted?
Courts agree that the 1988 Amendments create a federal cause of action that is rooted in state law rules of decision, but have generally held that the duty of care owed by Price-Anderson defendants is that stated in Federal dose exposure regulations, to the exclusion of state law duty of care standards.
Congress may wish to consider whether this exception to the Act=s reliance on state standards is warranted, particularly where the state standard may supplement, but not conflict with, the federal standard of care.
(6) What is the Burden of Proof to Show Causation of Injury Where Records are Inadequate?
In order to obtain Price-Anderson compensation, an individual may need to show not only that he or she was exposed to radiation hazard and that he is now sick, but also that the exposure caused the sickness. The difficulties of determining that harm to a specific individual (e.g., cancer) was caused by a specific exposure(s) to radiation are well understood, particularly when the injury manifests itself years after the exposure. We now know that when the government (and its contractors) exposed citizens, soldiers, and workers to radiation during the Cold War those responsible for exposures too often failed to keep the records, and provide for the monitoring, that might help determine cause and effect B and provide for compensation B at years remove. In light of this new understanding, Congress and the Executive branch have adopted the principle that where injured citizens show that they were likely exposed to potentially injurious amounts of radiation, the government (or contractors or further designees) bears the burden of providing exposure and monitoring data needed to defeat claims that the injury was caused by the exposure.
Congress may wish to consider the express incorporation into the Price-Anderson Act of the principle that those who expose citizens to radiation risk without providing for recordkeeping and monitoring bear the burden of showing that their conduct is not the cause of resulting injury.
(7) Is Justice Done by Current Statutes of Limitations Provisions Which May Preclude Recovery Where Injury is Latent for Years?
At least one court has indicated that adherence to the letter of the Price Anderson Act required it to do injustice by dismissing a case involving an alleged Anuclear incident@ because of the failure of the state statute of limitations to contemplate injury from radiation exposure -- i.e., injury that may be latent for many years before visible manifestation..
Congress may wish to revisit the workings of Price Anderson Act statutes of limitations where state law does not adequately contemplate the reality that some radiation injuries may be hidden for years before discovery.
1. Jurisdictional Requirements
1. Is an Indemnification Agreement a Prerequisite to the Triggering of Price-Anderson Jurisdiction?
Is an indemnification agreement a prerequisite for the triggering of Price-Anderson?
In Gilberg v. Stepan Co., 24 F. Supp 2d 325 (D. N.J. 1998) the court found that the existence of a Price-Anderson indemnity agreement with the government is key to the determination of whether a radiation release is covered by Price Anderson.
The case dealt with alleged contamination of the surrounding community from thorium tailings at a chemical plant that operated from 1918 to 1956. The court noted that the Atomic Energy Act authorized the NRC to license the production and possession of nuclear materials. Price Anderson did not mandate, as it does in regard to power plant licensees, that these further licensees be subject to assured pools of coverage. The Stepan court concluded that an Aoccurrence@, under the definition of Anuclear incident,@ Acan only be an event at the location of or the contract location as those terms are defined as an applicable indemnity agreement.@ In the absence of such agreement, the court found, Price Anderson does not apply.
The Court explained:
While it is true that any thorium or thorium tailings at the facility may have been the subject of AEC or NRC licenses for source and/or byproduct materials...licenses for these types of materials have never been subject to Price-Anderson=s financial protection provisions. Therefore, neither the AEC nor the NRC would have entered into an indemnification agreement covering activity conducted under such licenses. In the absence of an indemnification agreement, entered into under 42 U.S.C. Section 2210 and covering the activities which give rise to the liability alleged, there can be no Aoccurrence,@ that is no event at the site of Alicensed activity@ that would constitute a Anuclear incident.@ Without a nuclear incident, there is no claim for public liability, and without a claim for public liability there is no federal jurisdiction under Price-Anderson.[fns. Omitted]
Stepan=s conclusion was embraced in Heinrich v. Sweet, 62 F. Supp. 2d 282 (D.Mass. 1999), which involved claims related to human radiation experiments conducted by doctors and universities under Atomic Energy Commission contract.
However, Stepan=s conclusion has been rejected elsewhere, including at least one case -- Carey v. Kerr-McGee, 60 F. Supp 2d 800 (N.D. Ill. 1999)-- which followed Stepan. Carey concerned allegations of contamination from thorium tailings at Kerr-McGee=s West Chicago plant. Plaintiffs argued that for Price Anderson to apply there had to be a release of radioactive material from a facility which is both (a) licensed by the NRC and (b) covered by an indemnification agreement with the NRC. Because the facility, while subject to certain licensing, was not signatory to an indemnification agreement, plaintiffs contended that there was no Aoccurrence,@ as provided for by the Act and therefore it did not apply. The court, noting that the Act does not define occurrence, looked to Webster=s dictionary and found that an occurrence had been alleged.
2. Is Intentional, in Addition to Accidental, Conduct Covered by the Act?
In re Cincinnati Radiation Litigation, 874 F Supp 796, 830-832 (SD Ohio 1995) involved claims of injury caused by human radiation experiments conducted by government supported experimental treatments of cancer patients. The court found that a Apublic liability@ claim requires unintended, or accidental, conduct. Thus, even though radiation might have caused injury, there was no Price Anderson claim. The decision explained:
While the alleged conduct of the experiments and the alleged failure to inform the subjects of the experiments may be reprehensible, the operation of the Teletherapy Unit was an application of nuclear medicine. Thus, in this case the nuclear source at issue was employed as intended and cannot give rise to a claim under the Price-Anderson Act. Moreover, liability under the Price-Anderson Act turns on the existence of a Anuclear incident,@ which does not occur when there is no unintended escape or release of nuclear energy.
See also McCafferty v. Centerior Service Company, 983 F. Supp. 715 (N.D. Ohio 1997) (Aall of Plaintiffs claims which arise as a result of their unintended exposure to radiated materials are preempted by the Amendments Act, and must be analyzed for inconsistencies with that legislation.@)
In a subsequent human radiations experiment decision, Heinrich v. Sweet, 62 F. Supp. 2d 282 (D. Mass. 1999), the court determined that Price-Anderson jurisdiction was not governed by the intentionality of the conduct, but by whether the alleged conduct is subject to an indemnification agreement. Responding to the decision in In re Cincinnati Radiation Litigation, the court explained:
Several reported cases, however, appear to undermine this interpretation of the statute. See Day v. NLO Inc., 851 F. Supp. 869 (S.D. Ohio 1994)(Act applies to claims of occupational exposure to radiation not alleged to have been caused by accidental release); Sawyer v. Commonwealth Edison Co., 847 F. Supp. 96 (N.D. Ill. 1994) (Act applies to claim for injuries resulting from alleged ongoing occupational exposure); Coley v. Commonwealth Edison Co., 768 F. Supp. 625 (N.D. Ill. 1991)(same); Building and Constr. Trades Dep=t v. Rockwell Int=l, 756 F. Supp. 492 (D. Colo. 1991) (Act applies to intentional and tort claims related to occupational exposure.) 
Following the analysis in Stepan, as discussed above, the Heinrich court held that the determinative issue was not intentionality, but indemnification.
3. Is Price Anderson Coverage Commensurate with the Use of Atomic Energy, or NRC Licensing Jurisdiction?
Some courts appear to find that Price-Anderson jurisdiction broadly attaches to activities that are, or may be, within NRC jurisdiction.
Kerr-McGee Corp. v. Farley, 115 F. 3d 1498 (10th Cir. 1997), cert. denied,118 S. Ct. 880 (1998) involved Navajo Tribal Court jurisdiction over a claim that tribe members had been injured by exposure to radioactive and toxic materials released from a Kerr-McGee facility on land leased from the tribe. Those alleging injury claimed that because there was no indemnification agreement, Price-Anderson jurisdiction did not apply (and, therefore, there was no question of whether the case had to be in Federal court, not tribal court). The court rejected the claim:
Nothing in [the Supreme Court=s Silkwood decision] suggests that the absence of an indemnity agreement makes [the Act=s] jurisdictional provisions inapplicable. Furthermore, as quoted...the jurisdictional provisions of [the Act], as amended by the 1988 Amendments, appear broad enough to create a federal forum for any tort claim even remotely involving atomic energy production.
Gassie v. SMH Swiss Corp., 1998 U.S. Dist. Lexis 2003 (E.D. La. Feb. 17, 1998) was a class action claiming injury from the leak of tritium (a radioisotope used to produce luminescence) from Swatch watches. The defendant was an NRC licensee. The Court found that the claim was a public liability claim arising out of a nuclear incident B and, under Price Anderson, therefore subject to removal from state to Federal court and treatment under the Act:
Although the words Aany nuclear incident@ were employed by Congress to convey the broad scope of the jurisdictional grant, there is little support in the legislative history or in other legal precedent for the idea that a products liability case, such as the one Plaintiffs have filed in this one, to conclude that the leaking of tritium from Swatch Watches constitutes a nuclear incident in terms of the Price-Anderson Act. However, there is also little support to negate Defendants= argument that Plaintiffs= claims constitute a public liability action arising from a nuclear incident. In fact, the unambiguous words of the Price-Anderson Act indicate that Plaintiffs= claims do constitute a public liability action arising from a nuclear incident.
The court concluded that Price-Anderson would apply to tritium leaks from watches, unless Plaintiffs could establish (which the court found they did not) that the NRC permitted regulatory control of byproducts to be assumed by the State ( Louisiana in the case at hand).
II Post September 11: Are Acts of Terrorism Covered by the Act, or Are they Excluded as AActs of War@?
After September 11, there is obvious need to consider the applicability of Price-Anderson to nuclear incidents stemming from terrorist activity. It is not clear whether, and under what circumstances, the Act would cover damage and injury resulting from terrorist conduct.
The Act=s definition of Apublic liability@ excludes Aclaims arising out of an act of war.@ See 42 U.S.C. Section 2014(w)(ii). Thus, depending on the definition of AActs of War,@the Price-Anderson Act may include or exclude the consequences of terrorist activity.
Congress should consider whether it wishes to revisit the Aacts of war@ exclusion, to provide clarification of what is intended in light of recent events. For example:
Does Congress intend that the Aacts of war@ exclusion is also intended to exclude Aterrorist@ conduct? If so, does the Act currently make this clear? If Congress intends the Act to provide for terrorist accidents, does the current language make that clear? Where there is uncertainty about particular Aterrorist@ conduct, who (e.g., Congress and/or the Executive or the court) will be responsible for determining the scope of the exclusion, and by what means (e.g., Presidential directive, NRC review)? In the absence of clarification, the answers to such questions may fall by default to the courts, which would plainly benefit from Congressional guidance.
III. Is The Act=s Reliance on Retrospective Funding Reliable in Light of Utility Industry Restructuring?
Retrospective premium payments comprise the lion=s share of potential funding in the case of a severe accident. Given current industry deregulation, there is need to assure that these payments will be available if needed.
Price-Anderson creates a two-tier system to provide funding to the current liability limit of approximately $9.4 billion. Pre-paid private insurance set at $200 million is to be supplemented by retrospective deferred payments on each unit in the event of an accident requiring additional sums. The deferred payments are based on a formula where reactor owners each provide an equal amount per unit per accident to the limit of $9.4 billion. (For example, assuming 110 reactors are operating, a per unit payment of $83.9 million would yield $9.23 billion).
At the time of the 1988 Amendments, the landscape was still dominated by vertically integrated utilities with names that likely incorporated the name of the locality or region long served.
Since 1988, names and corporate structures have changed beyond ready recognition. Some vertically integrated utilities have divested themselves of nuclear units, others have sought to build fleets of units, and new entrants into the business have considered purchasing units. Moreover, as experiences in California and with Enron show, the once unthinkable prospect of the bankruptcy of a purveyor of electric Autility@service has now become quite thinkable.
In theory, the NRC will assure the continued adequacy of funding through reviews conducted in the transfer of unit licenses to new owners. In December 2001 the General Accounting Office (AGAO@) reported on the adequacy of NRC oversight of decommissioning funding in the restructuring environment.
The GAO found that Afor the most part@ NRC reviews of new owners= financial qualifications Aenhanced the level of assurance that they will safely own and operate their plants in the deregulated environment.@ (Report, at 6).However, the GAO found substantial basis for concern that financial reviews may not be adequate where the transfer is not predicated on the precomittment of the amounts potentially required. Thus, in the case of the NRC review of a merger that has yielded the nation=s largest Afleet@ of nuclear units, the GAO found (report at 6):
The new owner did not provide, and the NRC did not request, guaranteed additional sources of revenue above the market sale of its electricity, as other new owners had. Moreover, NRC did not document its review of the financial information B including revenue projections, which were inaccurate B that the new owner submitted to justify its qualifications to safely own and operate 16 plants. []
The GAO concluded (at 34):
NRC=s inconsistent review and documentation of license transfer requests creates the appearance of different requirements for different owners or different types of transfers...While its standard review plan offers a sound basis for obtaining consistency, NRC is clearly not consistently achieving the desired results.
Moreover, the 1998 NRC report to Congress records that, even prior to deregulation, studies showed that utilities could not be expected to Aafford@ retrospective payments in excess of $32 million (in 1996 dollars). The report pointed out that deregulation might reduce this amount further:
the current deregulatory environment, which may lead to restructuring within the nuclear power industry, may impact the ability of some nuclear power entities to handle a $20 million annual retrospective premium assessment. []
Indeed, the form restructuring is taking may render the public particularly vulnerable to funding shortfalls. As the GAO report observed, nuclear units are being consolidated under a limited number of Afleet@ owners. This consolidation may yield important benefits in safety, reliability, and accountability. On the other hand, consolidation of ownership raises the possibility that the owner may have to bear retrospective payment burden measured in the hundreds, not tens, of millions, and the further possibility that the ripple of effects of an any nuclear accident on any utility system may cause cross-the-board unit shutdowns that will leave the Afleet@ owner without revenue sources to pay retrospective commitments. 
In sum, Congress should act to ensure that industry restructuring does not render the retrospective payment obligation=s that is at the core of Price-Anderson an illusion. In substance, as well as form, NRC reviews of nuclear unit ownership changes must provide assurance that the new owner(s) will be capable of making such Price-Anderson payments as may be called for. If, as the GAO report on decommissioning funding indicates, the NRC cannot uniformly provide this assurance, then Congress should consider alternatives, perhaps including demonstration of guaranteed availability of Price-Anderson funding.
IV Punitive Damages: How Should Willful or Reckless Misconduct Be Treated?
An actor whose willful or reckless misconduct causes harm may be treated differently depending upon whether the actor is a Department of Energy (ADOE@) contractor, a Department of Defense (ADOD@) contractor, or an NRC licensee. In the first case, under present laws and rules government will generally pick up the costs of all litigation and damage paymentsBregardless of the actor=s culpability. In the latter cases, the actor who engages in willful or reckless misconduct is on notice that it may be responsible for payments in its own right.
The standard nuclear indemnification clause applied by DOD (under 50 U.S.C. Section 1431), provides, in part: 
(d) When the claim, loss, or damage is caused by willful misconduct or lack of good faith on the part of any of the Contractor=s principal officials, the Contractor shall not be indemnified for ‑‑
(1) Government claims against the Contractor (other than those arising through subornation); or
(2) Loss or damage affecting the Contractor=s property.
Thus, DOD contractors (many of whom, of course, are also DOE contractors) are not completely off the hook for damages stemming from Awillful misconduct or lack of good faith.@
Similarly, courts have found that NRC licensees may themselves be liable for punitive damages in cases where the sums involved are beyond those which the Federal government is obligated to pay.
In Silkwood v. Kerr-McGee, 464 U.S. 238 (1984)-- which directly involved the question of federal preemption of state causes of action and did not directly involve Price-AndersonB the Supreme Court held that punitive damages under state laws would not frustrate the federal scheme for regulation of nuclear matters. The 1988 amendments, addressing the Silkwood decision=s provision of punitive damage, expressly limited punitive damages. However, some post 1988 court decisions provide that punitive damages may still be in order when, in essence, they do not come out of the government's hide.
In In Re: TMI, 67 F. 3d 1119 (3d Cir. 1995), the Court of Appeals considered the availability of punitive damages in light of the 1988 amendments. The court concluded that Ait is clear from the unambiguous language of those  Amendments that Congress did not intend to change the result the Supreme Court had reached in Silkwood.@ The Court elaborated: The Court of Appeals noted that in enacting the 1988 Amendments Congress Adid not hesitate@ to overturn @certain court decisions, but only partially limited Silkwood=s holding.@ The Court also reviewed the legislative history of the 1988 Amendments, finding Alucid declarations@ of Congressional intent to allow punitive damages.
See also, Smith v. General Electric, 938 F. Supp 70 (D. Mass.1996)(Aa claim for punitive damages may be asserted directly against a defendant who >supplied materials or services= to a nuclear power plant so long as such an award is authorized by the law of the forum@); Corcoran v. New York Power Authority, 935 F. Supp. 376 (S.D.N.Y. 1996)(denying motion to dismiss claims against non-licensee because Ait is incongruous to argue that contractors cannot be subject to suit simply because they may be indemnified [by the licensee].@
In sum, by contrast to the DOD rules and the potential for punitive damages awaiting NRC licensees, it appears that the current operations of the Price Anderson and procurement law may provide some deterrence (and/or post accident punitive damages) where an NRC licensee or DOD contractor engages in willful misconduct, but no such deterrence or relief in the case of a DOE contractor. If this is so, what basis is there for permitting DOE contractors to continue to be the exception to the rule?
V. Duty of Care: Should Federal Numerical Dose Regulations be the Duty of Care to the Exclusion of State Standards?
A predicate to recovery under tort law is a finding that the defendant has breached its Aduty of care.@ The majority of courts have found that the duty of care is measured by the applicable federal numerical dose regulations, to the exclusion of further duty(ies) of care provided by normally governing state tort law.
The exclusive application of the Federal duty of care appears to be in conflict with underlying Price Anderson Act policy that, while federal courts will have jurisdiction over claims arising from nuclear incidents, principles of state law are to be applied in determining compensatory damage claims. There is obvious wisdom in assuring that federal nuclear safety standards are not undermined by conflicting state law. However, the question is whether this principle should govern without consideration of whether state standards are in conflict with federal standards.
The tension between state law standards and federal safety standards was crystallized and addressed in the seminal Karen Silkwood case, Silkwood v. Kerr-McGee, 464 U.S. 238 (1984), In that case the Supreme Court permitted claims for damages, even punitive damages, to proceed even where the Plaintiff did not claim that maximum radiation exposure levels had been exceeded. The Supreme Court observed [fns.omitted]:
Although the Price-Anderson Act does not apply to the present situation, the discussion preceding its enactment and subsequent amendment indicated that persons injured by nuclear incidents were free to utilize existing tort law remedies.
In sum, it is clear that in enacting and amending the Price-Anderson Act Congress assumed that state law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it is well aware of the NRC=s exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy Congress intended to stand by both concepts and to tolerate whatever tension there was between them....It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.
In the interim since the 1988 Amendments, however, courts have generally found that federal standards govern to the exclusion of state standards -- without need for analysis of the potential for conflict between the two.
For example, in Roberts v. Florida Power & Light, 146 F. 3d 1305 (11th Cir. 1998), the plaintiffB a former nuclear power plant worker suffering from terminal cancer B alleged, among other things, that Florida Power & Light (AFPL@):
unreasonably exposed him to more radiation than was necessary, that the company did not help him take precautionary steps, such as buying appropriate clothing, and that FPL did not warn him of the danger of working at the plant.
The plaintiff alleged that these failures were violations of duties owed to him under the common law of the state of Florida. FPL successfully sought to dismiss Mr. Roberts= suit on grounds that Mr. Roberts did not plead that the FPL plant had exceeded federally-determined radiation standards.
A related question is whether a plaintiff in a case where there is no extraordinary nuclear occurrence determination must show that his/her exposure exceeded the federal numerical dose limit,
In In Re: TMI, 67 F.3d 1103 (3d Cir. 1995), the court considered whether individual plaintiffs had to show that they were exposed in excess of the permissible level. Defendants argued that even where the defendant admittedly violated the permissible level, each plaintiff had to show that he/she was exposed in excess of the permissible level The court held that: Athe duty of care is measured by whether defendants released radiation in excess of Section 20.105 or 20.106, as measured by the boundary of the facility, not whether each plaintiff was exposed to those excessive radiation levels.@ The court added that A[o]f course, plaintiffs must still prove causation and damages before they may recover.@
In Roberts v. Florida Power & Light, however, as the court of appeals summarized, the district court found that:@[s]ince there was no extraordinary nuclear occurrence involved in this case, the district court concluded that under the Amendments Act, the plaintiffs must allege and prove that the defendant breached its duty of care by exposing Bertram Roberts to an amount of radiation in excess of federally defined permissible radiation dose standards.@ This holding was affirmed by the court of appeals: A[a]s plaintiffs have failed to allege that FPL breached its duty of care by exposing Bertram Roberts to an amount of radiation in excess of the permissible amount allowed by federal regulation, they have failed to state causes of action for negligence, strict liability or loss of consortium.@
In sum, Congress may wish to consider whether state law duty of care standards should support claims where they are not in conflict with the numerical standards set by the Federal government.
VI. Who Bears the Burden of Proof of Causation in the Absence of Adequate Records?
As the Cold War recedes into history, there have been new inquiries into the radiation exposures of ACold War Veterans,@ those workers, servicemen, and further citizens who served in the development, production, and testing of nuclear weapons. It is useful to place the Price-Anderson scheme in the context of the findings of these inquiries, and the evolving burden of proof principles that they have led to.
In 1995 the President=s Advisory Committee on Human Radiation Experiments reported that from the1940's to the early 1970's numerous citizens were unknowingly exposed to radiation risk by virtue of being made subject to human radiation experiments. In a nutshell:
1. From the 1942-43 dawn of the Manhattan Project, the government, its contractors, and biomedical researchers were well aware that radiation posed potential risk to weapons workers, and that such risk had to be understood and monitored;
2. At its 1947 creation, the Atomic Energy Commission and its contractors engaged in a long hidden policy and practice of hiding risks from affected citizens to avoid liability and embarrassment -- even where national security itself did not require secrecy. The Committee recommended, and the Administration accepted, that where such coverup occurred, research subjects (or survivors) be compensated even in the absence of physical injury.
3. The Advisory Committee found that the hidden policy and practice of keeping secrets to avoid embarrassment and liability applied to workers, and their communities, as well as to experimental subjects. Ongoing disclosures show that the policy and practice was not effectively countermanded, and continued well past mid-century.
4. The Advisory Committee found that government and its contractors were well aware that radiation risks might be latent for years, with injury occurring long after exposure. However, they failed to provide for monitoring and recordkeeping sufficient to assure that risk would be minimized and that its dimensions could be known at years remove. This finding, recent disclosures show, applies to weapons workers as well.
The Committee recommended, and the Administration accepted, that in circumstances where citizens are exposed to nontherapeutic radioactive risk and the government (and/or private entities assisting it) fail to provide or withhold the information needed by citizens to protect themselves, there should be a presumption of compensation where: (1) the individual can demonstrate that he or she was present within the zone of exposure; (2) injury that is potentially related to the exposure is shown.
The Advisory Committee=s findings and the consequence for the burden of proof were part of the underpinnings of the fall 2000 Nuclear Workers= compensation Act.
First, the Act finds:
(2).... workers were put at risk without their knowledge and consent for reasons that, documents reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay
(3) Many previously secret records have documented unmonitored exposures to radiation and beryllium and continuing problems at these [nuclear weapons complex cites].
Second, in light of these findings, the Act provides that, upon finding that data is not adequate to render determinations with regard to particular claimants the burden shifts to the government.
In sum, it is well appreciated that contests over causation of potentially radiation induced injury is often difficult, costly, and controversial. Recent experience shows that it may be wise to give notice that the burden of proof will be borne by those exposing citizens to radiation risk without keeping records or providing monitoring needed to show cause and effect at some later date.
VII. Statute of Limitations: Three years from discovery rule for Nuclear Incidents?
At what point will Price Anderson Act claims be barred because they are filed too late -- even where those claiming radiation related injury could not reasonably have known of their illness and its cause at an earlier time?
In Lujan v. Regents of the U. of California, 69 F. 3d 1511, the Plaintiff brought suit to recover for the death of her daughter, who died at 21 as the result of recurrent brain cancers experienced since she was 18 months old. The brain cancers were alleged to result from releases from Los Alamos national laboratory. The suit was brought six years after the death.
Following the New Mexico state rule that wrongful death actions must be brought within three years of death, the district court dismissed the case. The Court of Appeals recognized that the application of the three year rule to radiation exposures was potentially unjust, but concluded that it was dictated by Congress:
We recognize , as did the district court, that exposure to radiation Acan occur without the slightest indication of its presence and the effects of such exposure may lie dormant for years.@..Congress was not unaware of the potential for injustice in cases such as this...Yet it chose not to extend the three-years-from discovery rule to all public liability actions when it extended federal jurisdiction to cover all such actions. It is not for us to correct Congress= alleged oversight.
Congress may wish to assure itself that the Price-Anderson Act does not work to prevent the bringing of otherwise meritorious claims because some state limitations statutes may not contemplate the long term latency of radiation risk.
This concludes my testimony. Thank you very much.
 The experience includes: (1) counsel to municipally and cooperatively owned electric systems in the purchase of nuclear power plant ownership shares and power supply, and related decommissioning costs;(2) special counsel to Senator David Pryor in oversight of Department of Energy contracting; (3) Executive Director, President Clinton=s Advisory Committee on Human Radiation Experiments; (4) Commissioner, U.S. Occupational Safety and Health Review Commission; (5) counsel, nuclear weapons workers union (OCAW, and its successor PACE) on matters including the environmental cleanup of the weapons complex, the privatization of the U.S. Enrichment Corporation, and the Energy Employees Occupational Illness Compensation Act; (6) adviser to Nye County, Nevada, on matters related to the potential Yucca Mountain repository; (7) adviser to the special delegation to the United States of the Chancellor of Austria regarding the Temelin nuclear power plant.
 For example, the Court of Appeals for the Third Circuit stated in In Re TMI, 940 F. 2d 832 (3d Cir. 1991), cert denied, 112 S. Ct. 1262 (1992):
The Amendments Act creates a federal cause of action which did not exist prior to the Act, establishes federal jurisdiction for that cause of action, and channels all legal liability to the federal courts through that cause of action...Congress clearly intended to supplant all possible state causes of action when the factual prerequisite of the statute are [sic] met.
 Stepan notes that the vast majority of litigated cases either dealt with indemnified facilities (e.g., power plants) or did not address the issue of whether indemnification was a requisite to Price-Anderson jurisdiction. Stepan addressed two prior cases, including Kerr-McGee Corp. v. Farley, 115 F. 3d 1498 (10th Cir. 1997), cert denied 118 S. Ct. 880 (1998) discussed below, which appeared to find Price-Anderson jurisdiction commensurate with NRC licensing authority.
 See also, Bohrmann v. Maine Yankee, 926 F. Supp. 211 (D. Maine) where the court found that an intentional tort theory, as provided by Maine law, could be pursued under Price-Anderson. (AThere is no reason apparent to this Court to believe that Congress intended that a defendant be insulated from liability for intentional acts solely by complying with the federal safety standards...); Caputo v. Boston Edison Co., 924 F. 2d 11 (1st Cir. 1991)(worker injury claim for intentional infliction of emotional distress removed to federal court pursuant to Price Anderson Amendment Act of 1988, dismissed for lack of factual support).
 ANRC=s Assurance of Decommissioning Funding During Utility Restructuring Could be Improved,@ GAO-02-48, December 2001.
 The GAO elaborated, at page 21:
when plant owners requested that their operating licenses for eight plants be transferred to a contractor, NRC maintained the existing level of assurance by continuing to hold the plant owners responsible for collecting decommissioning funds. In addition, when NRC approved requests to transfer licenses related to the sale of 15 plants, decommissioning funding assurances were increased because the selling utilities prepaid all or most of the projected decommissioning costs, and either the sellers or the new owners provided additional financial guarantees for those projected costs that were not prepaid. However, when NRC approved requests to transfer licenses in which the new licensee intended to rely on periodic deposits into external sinking funds for decommissioning, it did not always obtain the same level of financial assurance...Among other things, NRC approved two requests to transfer ownership of 25 plants without verifying that the new owners would have guaranteed access to the decommissioning charges that their affiliated entities would collect.
 AThe Price-Anderson Act: Crossing the Bridge to the Next Century a Report to Congress,@ Prepared by ICF Incorporated for the U.S.Nuclear Regulatory Commission. See Appendix A.
 The report explained:
The 1979 NRC staff study determined that assessments at the $10 million level were manageable but that problems might arise at the $20 million, and higher, assessment levels. The 1983 Report to Congress, using financial data from 1981, demonstrated that assessments at the $50 million level per reactor could pose major problems for all four of the utilities and especially for the two with more than one reactor each. It also showed how utilities began to evidence financial distress at assessment levels ranging between $10 and $20 million. That finding supported the 1979 NRC staff study's findings that recommended limiting the maximum assessments to $10 million per year, because higher assessments could cause financial distress.Using the Melicher method to evaluate the four utilities, this analysis concludes that the maximum annual assessment that all four utilities could afford seems to range between $20 and $50 million. This is consistent with the previous analyses' findings concluding that the maximum assessment level utilities could afford was between $10 and $20 million, which equal $16 and $32 million, respectively, in 1996 dollars when adjusted for inflation. However, the current deregulatory environment, which may lead to restructuring within the nuclear power industry, may impact the ability of some nuclear power entities to handle a $20 million annual retrospective premium assessment.
 For example, a Afleet@ owner may face the shutdown of much or all of its fleet if an accident elsewhere is caused by a design flaw common to the fleet units. When nuclear unit ownership was relatively dispersed, it might be hypothesized that individual utilities could offset the impact of cross-the-board nuclear unit shutdowns by generation (and related revenues) from other generation sources; will this be the case under restructuring?
 See, Federal Acquisitions Regulations ‑‑ Part 52; Solicitation Provisions and Contract Clauses; 52.250‑1 ‑‑ Indemnification Under Public Law 85‑804 (Apr 1984).
 42 U.S.C. Section 2210(s) provides:
No court may award punitive damages in any action with respect to a nuclear incident or precautionary evacuation against a person on behalf of whom the United States is obligated to make payments under an agreement of indemnification covering such incident or evacuation.
 Court decisions that indicate that punitive damages are still available make plain that punitive damages cannot be had against the government, but make less plain what this means. For example; (1) if punitive damages must come from funding other than that provided by the government, what does this mean when the government stands as ultimate indemnitor? (2) is the test whether the funding comes from the first or second tier of payments, and, if so, by what rationale does one determine which pot the punitive damages come from? (3) are punitive damages always available from those who are not directly indemnified by the government (e.g., a contract supplier to an indemnified utility)?
 The Court concluded:
Because there is no conflict between the Amendments Act and the substantive laws of Pennsylvania which allow punitive damages, we will instruct the district court to proceed with the litigation of these matters in a manner consistent with this opinion. In so doing, we emphasize that the district court has authority to prioritize the various claims if punitive damages are awarded and that the Price-Anderson Act=s tri-level insurance scheme is easily adaptable to such a prioritization of claims. It cannot be gainsaid that Aif there is a limited fund, priority should be given to compensating those who have been injured rather than conferring windfalls on those who have already been compensated.@.. We see nothing in the Act that precludes a district court from using its discretion to limit or even preclude punitive damages in accordance with the financial constraints of the fund and the Act=s prohibition against punitive damage awards being paid out of the federal layer of insurance. However, we do not express any view as to whether the district court should so exercise its discretion.
 In Smith v. General Electric 938 F Supp 70 (D.Mass 1996), the court explained in denying General Electric=s Motion to dismiss the claims against it:
The purpose of the channeling provision of the Price-Anderson Act is to make third party vendors like GE indemnitees of nuclear plant operators like Boston Edison. The Act does not exonerate GE of its legal liability, it merely shifts the obligation to pay damages to Boston Edison. The distinction between an indemnitee and a party immune from suit is critical, especially in a punitive damages context...As the Third Circuit pointed out in TMI...the limitation on punitive damages in the 1988 Amendments Act applies only when the United States is an indemnifying party...
The basis of plaintiff=s punitive damages claim is the allegation that GE knowingly and recklessly sold defective fuel rods to Boston Edison. While it is true that Price-Anderson will eventually require Boston Edison to indemnify GE for any damages, to dismiss GE at this stage as a party would hinder plaintiffs from developing proof of knowing or reckless conduct on GE=s part.
 Perhaps by contrast, in O=Conner v. Commonwealth Edison, 13 F. 3d 1090 (7th Cir. 1994)(pipefitter sues utility) the Seventh Circuit noted, in dicta at footnote 13: ASilkwood=s holding regarding damages was overruled by the Amendments Act which specifically bars punitive damages.@ See, for the same language, footnote 5 to Nieman v.NLO Industries, 108 F. 3d 1546 (6th Cir. 1997),
 The courts have further held that the Federal standard to be applied is the applicable numerical standard, and not ALARA (the AAs Low as Reasonably Achievable@ principle). See, e.g. In Re: TMI, 67 F.3d 1103 (3d Cir. 1995)(Awe note that no court appears to have actually applied ALARA as part of the duty of care.@) Carey v. Kerr-McGee, 60 F. Supp. 2d 800 (N.D. Ill. 1999) identifies McCafferty v.Centerior Service Comm 983 F Supp 715, 718 (N.D. Ohio 1997) as a decision which finds ALARA to be applicable. However, that decision agreed that the occupation dose limits B not ALARA B defines the standard of care.
 The Supreme Court recorded that the NRC had Adetermined that Kerr-McGee=s only violation of regulations throughout the incident was its failure to maintain a record of the dates of two urine samples submitted by Silkwood.@
 Similarly, in Lokos v. Detroit Edison, 67 F. Supp. 2d 740 (E.D. Mich. 1999)(individual claim of cancer related to occupational and community exposure to Fermi Power Plant), the court stated that:A[t]o prevail in their PLA, plaintiffs must prove two essential elements: (1) Mrs. Lokos= exposure exceeded the federal numerical dose limits; and (2) such overexposure caused her to suffer a compensable injury under the Amendments Act.@ The plaintiff, pointing to the TMI decision, argued that a breach of duty occurs whenever excessive radiation is released, whether or not anyone is present in the area exposed. The Court stated that in TMI defendants admitted that the permissible levels were exceeded at the site boundary, and there was no such evidence in the case at hand.
 The Committee=s Report is available as The Human Radiation Experiments: Final Report of the President=s Advisory Committee (Oxford, 1996)(AFinal Report@).The Final Report contains a ACitizen=s Guide@ to accessing the documents and other materials reviewed by the Committee. Page references in this testimony are to the Oxford edition.
 Section 3626 (ADesignation of Additional Members of Special Cohort@) empowers an expert panel to determine whether there are classes of workers Awho likely were exposed to radiation but for whom it is not feasible to estimate with sufficient accuracy the dose of radiation they received.