ML19261D902
| ML19261D902 | |
| Person / Time | |
|---|---|
| Issue date: | 05/25/1979 |
| From: | Hendrie J NRC COMMISSION (OCM) |
| To: | Dingell J HOUSE OF REP., INTERSTATE & FOREIGN COMMERCE |
| Shared Package | |
| ML19261D903 | List: |
| References | |
| NUDOCS 7906280251 | |
| Download: ML19261D902 (9) | |
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'4 UNITED STATES
- 1 NUCLEAR REGULATORY COMMISSION
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0 May 25, 1979 CHAIRMAN The Honorable John D. Dingell, Chairman Subcommittee on Energy and Power Committee on Interstate and Foreign Comerce United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
This is in reply to your letter concerning applicability of the Price-Anderson Act to the proposed Waste Isolation Pilot Plant (WIPP) under various conditions of operation. This response addresses only the Nuclear Regulatory Comission'.s (NRC) authority under the Price-Anderson Act. Although our Staff has discussed this subject with the Department of Energy (DOE), we believe the Department is best qualified to coment on its own authority under the Pric9 Anderson Act.
The Price-Anderson Act (Act) is codified at section 170 of the Atomic Energy Act of 1954.
42 U.S.C. 2210. The provision is designed to accomplish two basic objectives:
protection of the public by assuring availability of funds for the prompt payment of claims arising from a nuclear accident; and encouragement of private participation in the development of nuclear power by limiting the liability of certain NRC licensees, DOE contractors, and third party suppliers who could be liable for damages in case of a nuclear accident.
These policy objec-tives would be equally relavant to a private firm or C.overnment agency.
Consequently, when the Act was enacted, it treated all Federal agencies, uther than the Atomic Energy Commission (AEC), on the same basis as private licensees.
Since then, the AEC has been dissolved and its functions transferred to the NRC and DOE (fomerly ERDA) by the Energy Reorganization Act of 1974 (ERA) and subsequent energy-related legislation.
Section 202 of the ERA gave the NRC authority to license some DOE facilities including certain reactors and waste disposal facilities.
Consequently, these licenseable DOE facilities are subject to overlapping NRC and DOE authority. The Coanission considers the matter of jurisdictional priority resolved only with respect to licenseable DOE reactors.
In its statement accompanying issuance of revisions in Chapter I of Title 10 of the Code of Federal Regulations to reflect the procedural and organizational changes effecteu by the ERA, the Commission stated that DOE-owned licensed reactors will k
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The Honorable John D. Dingell 2
be indemr.ified as licensees rather than as "D0E-contractors."
40 Fed.
Reg. 8774 (1975). The question of which agency will apply the Act to licenseable DOE waste facilities has not yet been resolved.
The Commission's regulations implementing its exercise of authority under the Act,10 CFR Part 140, do not include licenseable DOE waste
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facilities.
Current regulations cover only persons licensed pursuant to 10 CFR Part 50 to operate nuclear reactors and 10 CFR Part 70 to possess and use plutonium in a plutonium processing and fuel fabrication plants.
10 CFR 140.2(a)(1) and (3).
Furthermore, the regulations apply to Federal agencies only if they have applied for or are holders of recctor licenses pursuant to Part 50.
10 CFR 140, Subpart C.
The need to extend Part 140 to licensed waste facilities has not previously arisen.
Of course, the Commission could include such facilities after a rulemaking to consider amendments to these regulations.
For your convenience, we have prepared a brief summary of the Act's provisions which are relevant to your questions.
Licensee Financial Protection Section 170a provides that every NRC license for a prcJuction and utiliza-
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tion facility must include conditions requiring each licensee to maintain financial protection in amounts determined by the Commission.
Federal agencies which are production and utilization facility licensees are not required to furnish financial protection (i.e. the required amount has been set at zero).
See note following 10 CFR 140.51.
Esction 170a also grants the Commission discretionary authority to require a financial protection provision in a source, byproduct or special nuclear materials license issued pursuant to sections 53, 63 or 81 of the Atomic' Energy Act (AEA).
Under section 202 of the ERA, any license-able DOE waste facility would require a materials license.
Thus, the Commission would have discretion to require financial protection provi-sions in a license for a DOE waste facility.
Indemnification Section 170a provides that whenever a licensee is required to maintain financial protection, the Commission can require the licensee to execute an indemnification agreement pursuant to section 170c.
However, section 170c limits the Commission's discretion by requiring it to agree to indemnify the licensee and other persons indemnified whenever the amount of financial protection required is less than $560 million.
Consequently, 2210 002
The Honorable John D. Dingell 3
the Comission is required to indemnify Federal agencies which are reactor licensees.
However, if the Commission does not require a 1
discretionary financial protection provision in a license for a DOE waste facility, DOE would not be required to execute an indemnification agreement with the Commission.
Waiver of Imunity Section 170a grants the Commission authority to require any licensee indemnified under the Act to waive any imunity from public liability 1
conferred by Federal or State law.
Liability Limits Section 170e of the Act protects " persons indemnified" by limiting their aggregate liability for damage from a single nuclear incident.
Section 11t of the AEA defines " person-indemnified" to include certain NRC licensees (section 170a) and DOE contractors (section 170d), and any other person who may be liable for public liability arising from a nuclear incident occurring within the United States.
" Person" is defined by section 11s to include all Federal agencies except the AEC.
Conse-quently, the Act always limited Federal liability for a nuclear incident at licensed Federal agency reactors.
After enactment of the ERA, the NRC modified the definition of " person" as used in its regulations to include DOE, with respect to its facilities which require NRC licenses pursuant to section 202 of the ERA.
See, for example,10 CFR 2.4(o) and 10 CFR 140.3(g).
And, as already noted, under current NRC regulations the Comission exercised its authority under the Act over DOE reactors.
Other licensable DOE facilities are not covered by NRC regulations because none have been available.
- Thus, the Commission's current interpretation of the word " person" is consistent with the Act's initial limitation of Federal liability for nuclear incidents at Federal reactors and other production and utilization facilities.
If the Commission exercises its authority to apply the Act to DOE waste facilities then the Comission's definition of the word " person" would extend the Act's liability limit to any nuclear incident at such a f acility.
However, the 560 million dollar liability limit may be inappro-priate for waste facilities because it was chosen to compensate the public for reacter accidents.
Section 170e also provides that in the event of a nuclear accident involving damages in excess of the statutory aggregate limit, Congress will take whatever steps it deems necessary 2210 003
1 The Honorable John D. Dingell 4
and appropriate to protect the public. Therefore, as is the case for reactor accidents, even if the Act's liability limit is applied to a DOE waste facility, that limit would not establish an impenetrable ceiling on reimbursement to the public for damages resulting from a nuclear incident.
In our view, application of these principles lead to the attached responses to your specific questions regarding the Commission's appli-cation of the Price-Anderson Act to WIPP under the various circumstances posed.
I hope these responses are fully responsive to your questions.
Our answer has been delayed because the issues raised are quite complex.
In conclusion, let me only state that the Commission is prepared to offer its assistance in any further consideration of the applicability of the Price-Anderson Act for indemnifying public liability arising from nuclear incidents at waste disposal facilities.
Sincerely,7 a
oseph M. Hendrie
Attachment:
Responses cc:
Rep. Clarence J. Brown P00R ORGINAL 2210 004
Responses To Questions A.
Would the Price-Anderson Act apply if the proposed WIPP facility were used exclusively for disposing of military waste?
The Price-Anderson Act may apply to the WIPP facility, even if it is used exclusively for the disposal of military wastes.
If WIPP is used expressly for the long-term storage of high-level radio-active waste generated by DOE, and is not used for or part of research and development activities, it will require an NRC license pursuant to section 202(4) of the ERA.
Under these conditions, section 170a of the AEA gives the Commission discretion to require
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a financial protection provision in its license to DOE.
- Further, if the Commission exercises that discretion by requiring financial protection of less than $560 million, then the Commission must indemnify DOE pursuant to section 170c.
However, if the financial protection required. by the Commission would be zero dollars, then the maximum funds available for payment of claims would be $500 million.
Finally, under the Commission's definition of the word
" person", DOE's liability for a nuclear incident at WIPP would be Ifmited in accordance with section 170e.
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However, if WIPP is used primarily to dispose of military trans-uranic and other non-high-level waste, or is a research and development facility, then it will not require an NRC license.
Consequently, the Commission would not be authorized to exercise its discretion under the Act.* Also, under these circumstances 'D0E would not be c " person" and, thus, its appears that its liability for a nuclear incident at WIPP would not be limited.
P00ROR8NAL DOE might exercise its authority under the Act pursuant to section 170d of the AEA.
2210 005
2 B.
Would the Price-Anderson Act apply ? 7 i<;e facility is used for the storage of wastes, or is its applic. ability confined to production and utilization facilities only?
The Act can apply to a waste storage facility even though it is neither a production nor utilization facility.
Section 170a of the AEA grants the Commission discretionary authority to apply the Act to materials licenses issued pursuant to sections 53, 63 and 81 of the AEA.
Since these sections provide the NRC's authority for licensing DOE waste disposal facilities pursuant to section 202 of the ERA, the Commission would have the authority to apply the Act to WIPP as discussed in response to question A above.
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?0SR DGR me 22!0 006
3 C.
Would the Price-Anderson Act apply if a private contractor operates this facility even though the Department of Energy retains ownership?
The Commission's authority to apply the Act to WIPP would not be changed if it were operated by a private contractor.
If the storage facility were owned by DOE but operated by a DOE contractor, and if NRC licensed only the contractor, the NRC could indemnify the con-tractor.
In this situation it is unclear whether DOE, a non-licensee, would be a " person" or " person indemnified".
However, DOE might also have authority to apply the Act to contractors under these circumstances.
NRC and DOE have not as yet resolved the question of dual agency authority to apply the Act to waste facilities.
d P00R ORGINAL 2210 007
4 D.
Would the Price-Anderson Act apply if only a part of the facility is dedicated to spent fuel storage, and if applicable, would the provisions apply to the entire facility or to just that section used for spent fuel?
The Commission currently believes it can apply the Act to a facility I
used primarily, even if not exclusively, to store comme cially gen-erated spent fuel.
If WIPP is used primarily for the storage of commercially generated spent fuel, then, in our opinion, DOE wi'1 require an NRC license pursuant to section 202(3) of the ERA. This license would cover at least tnat part of the facility devoted to licenseable activity. The license would provide the basis for the
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Commission's exercise of authority under the Act as described in response to question A.
In addition, the Commission could exercise its discretion to require DOE to waive any immunity from public liability conferred by Federal or State law pursuant to section 170a.
Furthermore, under the Commission's definition of the word
" person", DOE's liability from a nuclear incident at WIPP would be limited in accordance with section 170e.
Alternatively, if commercial spent fuel storage is not the primary activity at WIPP, then NRC would have no basis for applying the Act.
Thus, the relative proportion of storage devoted to spent fuel determines Commission authority to license WIPP and apply the Act.
2210 008
5 E.
Would the Price-Anderson Act apply if the proposed '.;IPP facility is not licensed by the Nuclear Regulatory Commission?
The Commission cannot 7.pply the Act in the absence of licensing authority.
However, in our view, the legislative history of the Energy Reorganization Act of 1974 clearly supports interpreting the word " commission" in section 170(d) to mean DOE.* The Commission s'6
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believes that the Department of Energy is best qualified to comment on its authority under the Act.
?00R ORGINAL y.
t:
i.
H.R. Rep. No.93-707, 93d Cong.,1st Sess. 26(1973) 2210 009