The Price-Anderson Act contains a 20-year statute of limitations on claims (42 U.S.C. §2210(n)(1).) However, medical experts believe that approximately 5/6 of the cancers caused by radiation emerge more than 20 years after exposure. In addition, humans may be harmed by radioactive contamination of the ground and structures which could continue to expose persons to radiation for many years. The problem of burden of proof is another issue which is not solved by the Price-Anderson Act. The limited extent of scientific knowledge about the biological effects of human exposure to radiation is a serious handicap to any person attempting to prove that his or her affliction was caused by a nuclear incident. For example, human diseases may arise generations after exposure to nuclear radiation but the causal link to that exposure would be extremely difficult to prove and a statute of limitations in all probability will have run before the appearance of the disease. H. Claims Directly Against DOE or NRC The President's Interagency Review Group (IRG) draft Report on Transportation Issues (September 11, 1978) indicates that one of the transportation options available is the option that DOE might own or operate the system under which nuclear waste is transported. DOE contends that this possibility is unlikely. However, DOE concedes that if this option were to become a reality, "any liability asserted directly against the Government would be determined in accordance with the Federal Tort Claims Act and the traditional rules of liability as established in the body of law concerning federal torts. ("Questions and Answers WIPP" DOE Public Meeting, Roswell, New Mexico, November 15, 1978, Question la) on DOE's conclusions in this regard are clearly supported by the terms of the Price-Anderson Act. The provisions of the Price-Anderson Act do not make the federal government an insurer per se for damage arising out of a nuclear incident. Instead, if a contractor or a licensee has entered into an indemnity agreement with DOE or NRC, and if liability arises out of such contractual or licensed activity, the Act authorizes DOE or NRC, respectively, to indemnify such contractor or licensee and "other persons indemnified" within the meaning of 42 U.S.C. $2210(c) (or "the persons indemnified" within the meaning of 42 U.S.C. $2210(d)). Yet 42 U.S.C. $2014 clearly defines a "person" so as to exclude the AEC (now the NRC or DOE, its successors). Therefore, if a nuclear incident arose out of the transportation of nuclear waste to WIPP by DOE itself, private claimants would not be eligible for the benefits of the waiver of defenses and other provisions of the PriceAnderson Act. Nor would the State of New Mexico be eligible for Price-Anderson indemnification by DOE, even if DOE was transporting wastes to a DOE "contract location" (WIPP) which was the subject of an indemnity agreement. I. The Supplemental Stipulated Agreement In December 1982, as a result of protracted negotiations following the filing of a lawsuit challenging many aspects of DOE's proposal to build the WIPP, the state and DOE entered into the Supplemental Stipulated Agreement Resolving Certain State Off-Site Concerns Over WIPP, Case No. 81-0363JB, United States District Court, District of New Mexico. A significant area addressed in the SSA is that of coverage of potential liability in the event of a nuclear accident involving WIPP activities. As a basis for making the guarantees contained in the SSA, DOE relied on the Opinion of its general counsel, referred to earlier. A copy of the SSA, to which is appended that Opinion, is filed concurrently with this testimony. The questions and issues raised by this testimony necessarily resolved by the guarantees contained in the SSA, for the reasons set forth in this analysis. are not As part of the SSA, DOE agreed to assist the state in presenting its Price-Anderson concerns to Congress and the NRC, for amending the Act to provide increased public protection. Appendix D of DOE's report to the Congress, dated August 1, 1983, is a list of New Mexico's concerns, as contained in the SSA, without elaboration. J. Constitutionality of the Price-Anderson Act The constitutionality of the limitation of liability provisions of the Price-Anderson Act was challenged and unanimously upheld by the United States Supreme Court in Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 37 L.Ed.2d 595 (June 26, 1978). In light of this Supreme Court decision, the adequacy of compensation issue is not an infirmity which may be attacked on constitutional grounds. For similar reasons, the concern that the waiver of defenses found in the Price-Anderson Act offers little to potential claimants cannot be shaped into a cognizable constitutional cause of action. The one issue that remains open to challenge at this time is the twenty-year statute of limitations on claims contained in the Act (and the ten-year limitation contained in DOE's regulations). The chance of successfully arguing that these limitations deprive claimants of due process is remote. an a K. Avenues of Redress Other Than the Price-Anderson Act "The United States shall be liable, respect- "If, however, in any case wherein death Admittedly, unlike a claim under the Price-Anderson Act, action under the Federal Tort Claims Act would involve no $560 Million limitation on liability. On the other hand, claimant would not have the benefit of a waiver of legal defense provisions (e.g., contributory negligence, statutes of limitation). Furthermore, a claimant under the Federal Tort Claims Act would be faced with a unique set of exceptions to liability: Any claim based upon an act or omission Summary discretion involved $2680(a) (Emphasis The questions raised above suggest their Own answers for New Mexico. It is imperative that the utmost effort be made to properly frame the issues before the appropriate Congressional committees and to pursue changes in Price-Anderson which will obviate the concerns raised. The good intentions of DOE and other federal agencies notwithstanding, clarifying legislation would make the interpretation and agreements which have been devised to make Price-Anderson coverage applicable to WIPP unnecessary. Of equal importance, the issues of increased limits, waiver of defenses, statute of limitations and other public protection concerns must be presented at this time to the Congress. The WIPP is scheduled to begin receiving radioactive waste in the late 1980's, the same time that the Price-Anderson Act is due to expire. New Mexico should make every effort to see that the Act is not only extended, but strengthened for the benefit of the citizens and the state. 38-299 0-84-12 STATEMENT OF REPRESENTATIVE DICK NELSON of the STATE OF WASHINGTON before the HOUSE INTERIOR AND INSULAR AFFAIRS COMMITTEE UNITED STATES CONGRESS JUNE 11, 1984 Good morning. My name is Dick Nelson. I am from the State of Washington, the Evergreen State, where I serve in the State Legislature as Chair of the House Energy & Utilites Committee and as Chair of the House Subcommittee on Radioactive Waste Matters. I also am a member of the Nuclear Waste Board which was created by our state just recently as one response to the State's participation in selection of a high-level nuclear waste repository under the Nuclear Waste Policy Act passed by Congress a year and a half ago. I am here today because I am concerned that the views of our State be made known as your Committee begins to consider extension and modification of the Price-Anderson Act of 1957. I am particularly concerned about the request of the U.S. Department of Energy, in Mr. Hodel's letter to Congress of August 19, 1983, that the Price-Anderson Act limitations on liability be extended to expressly cover a nuclear waste repository. It is my view that such an extension would not be responsive to the concerns of the people of the State of Washington and would jeopardize the siting of a nuclear waste repository whereever. it might |