25. 1956 Hearings, supra note 22. The Joint Committee on Atomic Energy was abolished in 1977. All matters previously within its jurisdiction are now referred to the committees of the Senate and the House of Representatives having jurisdiction over the subject matter. 42 U.S.C. § 2258 (1976).

26. See S. REP. NO. 296, supra note 2, at 3.

27. H.R. 9701 and H.R. 9802, 84th Cong., 2d Sess. (1956).

28. See 1956 Hearings, supra note 2 and 1957 Hearings, supra note 4, passim.

29. See, e.g.. Statement of Mr. Herbert W. Yount of the American Mutual Alliance in 1956 Hearings, supra note 22, at 250. See also Kelly, Insurance Problems in the Atomic Age, 24 INS. COUN. J. 9 (1957); Comment, supra note 1, at 753-54, 755, 766-67.

30. 1956 Hearings, supra note 22, at 155.

31. See 1957 Hearings, supra note 4, at 235.

32. See generally id.; MURPHY, FINANCIAL PROTECTION, supra note 21, at 48-52, 62.

33. Section 170 b. (codified as amended at 42 U.S.C. § 2210(b) (1976)), reads in part “[t]he amount of financial protection required shall be the amount of liability insurance available from private sources [emphasis added]. Section 170 c. (codified as amended at 42 U.S.C. § 2210(c) (1976)), provides that the AEC will indemnify only if the licensee's liability is in excess of the "financial protection required."

34. 1956 Hearings, supra note 22, at 121.

35. Id. at 123.

36. Id.

37. S. REP. NO. 296, supra note 2, at 21. Cf. Becker, supra note 21, at 541-42; 71 HARV. L. REV. 750, 751 (1958); Comment, supra note 1, at 764-65.

38. 1956 Hearings, supra note 22, at 123.

39. See, e.g., H. R. 9701 and H. R. 9802, 84th Cong., 2d Sess. (1956): 1956 Hearings, supra note 22, at 11.

40. See Statement of James T. Ramey, Commissioner, AEC, in Hearings Before the Joint Comm. on Atomic Energy on Proposed Amendments to Price-Anderson Act Relating to Waiver of Defenses, 89th Cong., 2d Sess. 3 (1966) [hereinafter cited as 1966 Hearings].

41. The Price-Anderson Act was first amended in 1958, when Congess extended the indemnity to the construction and operation of the nuclear ship Savannah (Act of Aug. 8, 1958, Pub. L. No. 85-602, 72 Stat. 525 (codified as amended at 42 U.S.C. § 2210(1) (1976)), and exempted non-profit educational institution licensees from the financial protection requirement. Act of Aug. 23, 1958, Pub. L. No. 85-744, 72 Stat. 837 (codified as amended at 42 U.S.C. § 2210(k) (1976)).

Although hearings on Price-Anderson were held both in 1959 (Hearings on Indemnity and Reactor Safety Before the Joint Comm. on Atomic Energy, 86th Cong., 1st Sess., pt.1 (1959)) and 1960 (Hearings on Indemnity and Reactor Safety Before the Subcomm. on Research and Development and the Special Subcomm, on Radiation of the Joint Comm. on Atomic Energy, 86th Cong., 2d Sess., pt.2 (1960)), no new amendments were passed. In 1960 the AEC did, however, through modifications in the insurance and indemnity agreements, address some of the problems raised in these hearings. To meet the concern of the transportation industry that adequate coverage be available, a provision was added to the agreements to cover transportation of nuclear material from a covered facility to any location and to a facility from any place other than another indemnified facility. 25 Fed. Reg. 2948 (1960). See also Lowenstein, Domestic Liability and Indemnity for Nuclear Incidents, 1959 INS. L.J. 765, 767 [hereinafter cited as Lowenstein). A second, more technical, regulation extended the period of notice to the AEC prior to suspension of any insurance policy in order to afford the Commission time to act on the suspension. 25 Fed. Reg. 2948 (1960). See also Lowenstein supra, at

767. The agreements were also changed to obligate the AEC to fill the gap in coverage created in the event that full coverage was not reinstated by an insurer after payment of a claim under a private policy (25 Fed. Reg. 3000 (1960)), and to ensure that indemnity coverage would be maintained by the AEC regardless of the bankruptcy or insolvency of the indemnified licensee. 25 Fed. Reg. 3001 (1960). Another administrative action increased the limitation on the liability of the insurers in case of a "common occurrence." that is, an incident involving two covered facilities, from the insurance available under one of the policies to the capacity of the pools or the aggregate amount of insurance applicable, whichever was lower. 25 Fed. Reg. 2948, 2999 (1960).

In 1961 the Act was again amended. First, in response to a planned program to detonate nuclear devices underground, Congress provided that contractors involved in the underground testing were to be liable, to the extent indemnified, as would a private person, and that the defense of sovereign immunity would be barred. Act of Sept. 6, 1961, Pub. L. No. 87-206, § 15, 75 Stat. 479 (codified as amended at 42 U.S.C. § 2210(d) (1976)). Second, the Act was amended to clarify the exclusion of property "at the site of and used in connection with a licensed activity" from the indemnification agreement. Id., § 3, 75 Stat. at 476 (codified as amended at 42 U.S.C. § 2014(w) (1976)); See also Lowenstein supra, at 767-68. Since private insurance was available to cover such damage, provision of indemnity coverage for onsite property could unnecessarily deplete funds otherwise available to compensate the public. 1960 Hearings on Indemnity and Reactor Safety, supra, at 129: Lowenstein, supra, at 768. In 1962 the Act was amended to cover government contractors for incidents occurring outside the United States, although the indemnity available for such incidents was limited to 100 million dollars. Act of Aug, 29, 1962, Pub. L. No. 87-615, §§ 4-7, 76 Stat. 410-11 (codified as amended at 42 U.S.C. §§ 2210(d), (e) (1976)).

An amendment was passed in 1964 to clarify the original law by providing that indemnification would be afforded facilities which received construction licenses before the expiration date of the Act, although the operating license was not received until after that date. Act of Aug. 1, 1964, Pub. L. No. 88-394, § 2, 78 Stat. 376 (codified as amended at 42 U.S.C. § 2210(c) (1976)).

In 1965, Congress extended the Act for an additional ten-year period until August 1, 1977 and adjusted the amount of governmental indemnity. Act of Sept. 29, 1965, Pub. L. No. 89-210, §§ 1-5, 79 Stat. 855-57 (codified as amended at 42 U.S.C. §§ 2210(c)-(e). (k), (1) (1976)). The Senate reiterated the view that the Act was fulfilling its purpose of protecting the public, and justified the limitation of liability as a “device for facilitating futher congressional review" of a catastrophe "rather than an ultimate bar to further relief of the public." Partly in response to criticism that the Act constituted a subsidy of the now well-established nuclear industry and partly in keeping with the original intention to phase out government indemnity as sufficient experience accumulated to make commercial insurance of the entire risk possible, the Act was also amended to reduce the government indemnity by the amount of protection available from private insurers. Act of Sept. 29, 1965, Pub. L. No. 89-210, §§ 2, 3, 79 Stat. 856 (codified as amended at 42 U.S.C. §§ 2210(d), (e) (1976)). Aggregate liability was maintained at 560 million dollars. S. REP. No. 650, supra, at 10-11.

42. 10 C.F.R. §§ 140.1-140.108 (1983).

43. Act of Oct. 13, 1966, Pub. L. No. 89-645, § 3, 80 Stat. 891-93 (codified as amended at 42 U.S.C. § 2210(n) (1976)) (hereinafter cited as Pub. L. No. 89-645]. For discussion of a waiver of defenses system as a means of improving public protection, see Cavers, Improving Financial Protection of the Public Against the Hazards of Nuclear Power, 77 HARV. L. REV. 644, 674-76 (1964) (hereinafter cited as Cavers). See also AEC Study of the Price-Anderson Indemnity Act in Subcomm. on Legislation of Joint Comm. on Atomic Energy, Selected Materials on Atomic Energy Indemnity Legisla tion, 89th Cong., 1st Sess. 31-40 (1965) [hereinafter cited as Selected Indemnity Materials]. A detailed analysis of the waivers system is contained in Trosten & England. Wairing Defenses: A New Approach to Protecting the Public Against Financial Loss

from Use of Atomic Energy, 27 FED. B.J. 27 (1967). The Act was also amended in 1966 to provide explicit measures for dealing with an emergency. Pub. L. No. 89-645 (codified as amended at 42 U.S.C. §§ 2210(m)-(o) (1976)). Under the new provision a claimant could obtain immediate assistance. If assistance were given, the claimant would not be required to sign a release, but would have to give a receipt to be credited against any final judgment or settlement. However, no more than fifteen percent of the total fund could be paid out without court approval if the court determined that liability might exceed the limitation on liability. The amendment also allowed a portion of the fund to be set aside for possible latent injury claims. On problems raised by the original statute in regard to latent injuries, see Comment, supra note 1, at 768-69.

44. An early discussion of the original Price-Anderson Act noted that lack of uniform treatment among states could be rectified by a waiver of defenses arrangement. 71 HARV. L. REV. 750, 753 (1958).

45. See Cavers, supra note 43, at 648-64; AEC Study of the Price-Anderson Indemnity Act in Selected Indemnity Materials, supra note 43, at 38-39. See also S. REP. NO. 1605, 89th Cong. 2d Sess. 26 (1966) [hereinafter cited as S. REP. NO. 1605].

46. See, e.g., Comments by Professor Arthur Murphy of Columbia Law School in 1966 Hearings, supra note 40, at 67.

47. S. REP. NO. 1605, supra note 45, at 9.

48. Id. at 20.

49. 1966 Hearings, supra note 40, at 44.

50. Id.

51. Pub. L. No. 89-645, 80 Stat. 891.

52. Id.

53. See, e.g. 1966 Hearings, supra note 40, at 23, 50, 57-58, 81, 122, 123; S. REP. NO. 1605, supra note 45, at 11. For an early expression of concern over the possibility of fraudulent or imaginary claims, see Snow, supra note 22, at 359-62.

54. S. REP. NO. 1605, supra note 45, at 12.

55. Pub. L. No. 89-645 (codified as amended at 42 U.S.C. § 2210 (n)(1) (1976)).

56. Act of Dec. 31, 1975, Pub. L. No. 94-197, § 10, 89 Stat. 1114 (codified at 42 U.S.C. § 2210(k) (1976)) [hereinafter cited as Pub. L. No. 94-197].

57. This plan was patterned on a proposal made by the nuclear insurance pools, as outlined in the 1973 Columbia Report (the NELIA-MAELU proposal). ROCKETT, ISSUES OF FINANCIAL PROTECTION IN NUCLEAR ACTIVITIES 5-14—5-18 (an independent study prepared by The Legislative Drafting Research Fund of Columbia University for the Atomic Industrial Forum 1973).

58. Nuclear Regulatory Commission, Office of State Programs, Press Release (November 19, 1982).

59 Letter from Linda Hodge, General Counsel, Atomic Industrial Forum, to Laurie R. Rockett (February 2, 1984).

60. Pub. L. No. 94-197, § 3, supra note 56 (codified at 42 U.S.C. § 2210(b)(1976)). 61. ALLIANCE OF AMERICAN INSURERS, AMERICAN INSURANCE ASSOCIATION, NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, MUTUAL ATOMIC ENERGY REINSURANCE POOL, AMERICAN NUCLEAR INSURERS, NUCLEAR POWER, SAFETY & INSURANCE: ISSUES OF THE 1980's: THE INSURANCE INDUSTRY'S VIEWPOINT 11 (1979) (hereinafter cited as AAI, ISSUES OF THE EIGHTIES].

62. Pub. L. No. 94-197, § 12, supra note 56 (codified as 42 U.S.C. § 2210(n) (1976)). 63. Id. (codified as 42 U.S.C. § 2210(o)(3) (1976)).

64. S. REP. NO. 454, 94th Cong., 1st Sess. 14 (1975).

65. Id.

66. Under the collateral source rule, if an injured person receives compensation for his injuries from a source wholly independent of the tort-feasor, the payment should not be deducted from the damages which he would otherwise collect from the tort-feasor. Kirtland & Packard v. Superior Court for County of Los Angeles, 59 Cal. App.3d 140, 146, 131 Cal. Rptr. 418, 421. In other words, a defendant tort-feasor may not benefit from the fact that the plaintiff has received money from other sources as a result of the defendant's tort, e.g., sickness and health insurance. BLACK'S LAW DICTIONARY 238 (5th ed. 1979).

67. 121 CONG. REC. 41,004-005 (1975).

68. Letter from Department of Justice to Peter L. Strauss (June 23, 1977) (discussing "Hathaway Amendment").

69. Pub. L. No. 94-197, § 6, supra note 56 (codified at 42 U.S.C. § 2210(e)(1976)).

70. Id. § 14 (codified at 42 U.S.C. § 2210(p)(1976)).

71. See Cavers, supra, note 43 at 676-7; 103 CONG. REC. 11583-84 (1957).

72. Carolina Environmental Study Group, Inc. v. United States Atomic Energy Commission, 431 F.Supp. 203 (W.D.N.C. 1977), rev'd sub nom. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978).

73. Id. at 222-23.

74. Id. at 225.

75. 438 U.S. 59 (1978).

76. Id. at 83.

77. Id.

78. Id. at 84.

79. Id.

80. Id. at 86.

81. Id. at 86-87.

82. Id. at 87.

83. Id.

84. Id. at 88.

85. Id. at 89.

86. Id. at 93-94.

87. AAI, ISSUES OF THE EIGHTIES, supra note 61, at 9.

88. Id. at 11.

89. AMERICAN NUCLEAR INSURERS REPORTS, Report No. 1, Nuclear Insurance Facts And Figures 4 (1983) [hereinafter cited as ANI Reports].

90. Butler supra note 24, at 26. McClure, supra note 19, at 257-58.

91. See McClure supra note 19, at 282-83, 288. Insurance is also available to non-licensed facilities under the supplier's and transporter's form and the foreign supplier's and transporter's form, which is simply the supplier's and transporter's form for American interests abroad.

92. 10 C.F.R. § 140.91 app. A. (1983).

93. Id. In connection with the coverage of offsite property of the insured, it should be noted that Congress expressed its intention, in amending the Act in 1975, to request the NRC to establish priorities in distributing funds in the event of an accident resulting in losses in excess of the limitation on liability that ". . . as a matter of equity, in (such] cases... losses to offsite property of the licensee of the responsible facility should be accorded lower priority than losses to third parties." S. REP. NO. 296, supra note 2, at 15. 94. Id. 95. Id.

96. Id. app. B.

97. Id. app. A.

98. Nuclear Liability Insurance Association, Master Policy No. 1, Nuclear Energy Liability Insurance (Secondary Financial Protection 1/1/83). This policy has not yet been included in the regulations issued by the NRC under the Price-Anderson Act. 10 C.F.R., Part 140.

99. ANI Reports, supra note 89, Report No. 3, Nuclear Liability Insurance: Protection for the Public, at 6-7.

100. See AAI, ISSUES OF THE EIGHTIES, supra note 61, at 4-7. The reasons given by the industry for the exclusion and the possibility of eliminating it are discussed in some detail in the report prepared by the NRC under 42 U.S.C. § 2210(p). THE PRICE ANDERSON ACT-THE THIRD DECADE, Staff Subject Report F, NUREG-0957 (1983) (hereinafter cited as the NRC Report].

101. McClure, supra note 19, at 272.

102. Id. at 286.

103. The following summary of claims experience is taken from ANI Reports, supra note 89, Report No. 4, Nuclear Liability Incidents: Abstracts. See also GOURLEN, WILCOX & MARRONE, THE NUCLEAR CLAIMS EXPERIENCE OF THE NUCLEAR INSURANCE POOLS (1984).

104. Report No. 4 covers only 99 claims. The additional five are reported in a table prepared by Joseph Marrone, Vice President and General Counsel, ANI, enclosed in a letter to Laurie R. Rockett, dated August 29, 1983.

105. Three Mile Island Station, [1979-81 Transfer Binder] NUCLEAR REG. REP. (CCH) 30, 465.01 (NRC Mar. 28, 1979) (hereinafter cited as TMI (CCH)].

106. N. Y. Times, March 31, 1979, § Ltt, at 8, Col. 6.

107. NUREG/CR-1215, at 22.

108. Marrone, Nuclear Liability Insurance-The Price-Anderson System and the Claims Experience of the Nuclear Industry (1983) (Unpublished paper).

109. Id.

110. Statement of Joseph Marrone at Hearings on Nuclear Safety and Indemnity before the Pennsylvania Insurance Commission (August 15, 1973).

111. 10 C.F.R. §§ 140.1-140.108 (1983).

112. Id. § 140.84.

113. Id. § 140.85.

114. Id. § 140.84(a).

115. Id. § 140.81(b)(1).

116. Id.

117. Id. § 140.85(a).

118. Id. § 140.85(b).

119. TMI (CCH), supra note 105.

120. Id.

121. Id.

122. Id.

123. Id.

124. Id. As of December, 1983 when its report to Congress was published, the NRC was "presently evaluating this question in connection with further rulemaking." The NRC Report, supra note 100, at 1-8.

125. 10 C.F.R., § 140.92, art. II (4) (1983).

126. Id. § 140.11(a).