Opposition Brief — Gumby v. General Public Utilities Corp.

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IN THE Dy9e |

Supreme Court of the Gnited sists, ee cr’

TO oo ewer SaRUneneUEenesheupennenpen ;

OCTOBER TERM, 1991

JOHN W. GumBY, S8r., et al.,

Petitioners,

GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN

EDISON Co., JERSEY CENTRAL POWER AND LIGHT CoO.,

PENNSYLVANIA ELECTRIC Co., BABCOCK & WILCOX Co.,

McDermott INc., U.E. & C.-CATALYTIC, INC., BURNS &

ROE ENTERPRISES, INC., AND DRESSER INDUSTRIES INC.,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION

JOHN G. HARKINS, JR.

Counsel of Record

A. H. WILcox

ELLEN KITTREDGE SCOTT

PEPPER, HAMILTON & SCHEETZ

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103-2799

(215) 981-4000

Of Counsel:

PAUL J. MISHKIN RICHARD B. HERZOG

Berkeley, California JOSEPH L. LAKSHMANAN

PEPPER, HAMILTON & SCHEETZ

1300 19th Street, N.W.

Washington, D.C. 20036-1685

(202) 828-1200

Dated: January 10, 1992 Attorneys for Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Did Congress intend, in 28 U.S.C. § 1447(d), to

make federal district courts final arbiters of the con-

stitutionality of federal jurisdictional statutes?

2. Does the ‘‘arising under’’-clause of Article III

of the Constitution prevent Congress from granting

district courts jurisdiction over a federal right of ac-

tion intended to replace state remedies for the com-

pensation of persons injured by nuclear power plant

accidents, when Congress directs the courts to derive

the rules of decision for that federal right of action

from substantive state law to the extent not incon-

sistent with the federal compensation scheme?

3. May Congress constitutionally authorize removal

to district court of public liability actions that were

pending in state courts when Congress enacted the

removal authority?

TABLE OF CONTENTS

QUESTIONS PRESENTED .......ccceeeeeeesseeseererteeeereeees

TABLE OF CONTENTS. .u....ccceceececeeeneeeeeeteeeeeeeeeeeeees

TABLE OF AUTHORITIES. .......cceceeeeeeeeeeeeereeeeeeneeees

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. ..........ccecescesccccccvcccceccnccsccsencceccerenssasvooeses

STATEMENT. .........cececcececscccccoccrccsccsssccsesccescscesesescers

. The Present Litigation ............csseceeeeeeres

_ The Public Liability Action Under The

Atomic Energy Act, As Amended By The

Price-Anderson Act. .......ccsssscccsseseeereeeeeees

The Three Decisions Prior To The 1988

APVONGIMOTES cceccescccsccrvcearsxceseneseessanedvarsivs

The Decision Below .........c.cccccscccesseresessss

REASONS FOR DENYING THE WRIT .........:::::eee

I. THE REVIEWABILITY ISSUE DOES NOT

WARRANT REVIEW ....2....cceceeeeeeeseeeeeeeeeeees

THE ART. III ISSUE DOES NOT WAR-

RANT REVIEW ........ccscccccceecscereeeeeseeeeeeneees

II.

The Decision Below Applied Traditional

Principles To A Distinctive Federal Stat-

ute: It Is Not In Conflict With Any Other

DECISION. ....<.sccssosscrenvesesessccenstescancesonsenonsss

The Court Of Appeals Correctly Decided

The Art. III Issue ..............ccccsccscrsssseeeees

Ill. THE RETROACTIVITY ISSUE DOES NOT

WARRANT REVIEW .........cccccseessseeeeeeeeeeeees

CONCLUSION ......cccccccsssssssssssccccsccecccccsseescsscccsssssessenseeees

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——————— eee

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TABLE OF AUTHORITIES

CASES: Page

Bonner v. Chevron USA, 668 F.2d 817 (5th Cir.

ERA ICAL ODN PCRS ECR LIAS ARCA 21

Chicago & N.W. Ry. v. Whitton, 80 U.S. (13 Wall.)

I aia ca aan toss goure renmmnccoouenekceeidsoos, 27

Coley v. Commonwealth Edison Co., 768 F. Supp.

IN NS Ds sinscnscorvencesvcaconatenevesecievicces 22

Duke Power Co. v. Carolina Envtl. Study Group,

BG, BI UB. BO CBG TB) occcecvnccvncccccencscccsccsecess. 4,18

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) .......... 22

Federal Sav. = Loan Ins. Corp. v. Frumenti Dev.

Corp., 857 F.2d 665 (9th Cir. 1988) ............... 13

Hennessy v. Commonwealth Edison Co., 764 F.

a ee a | 22

In re Bear River Drainage Dist., 267 F.2d 849 (10th

Sp fe See eal el 13

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487

a ines sencdecnausbauenedaddoweceaons 22

Kuck v. Metropolitan Edison Co., 784 F.2d 490 (3d

nets SEA etc ce er 7,15,17

Mesa v. California, 489 U.S. 121 (1989) ............. 8,15,17

O'Conner v. Commonwealth Edison Co., 770 F.

Supp. 448 (C.D. Il. 1991) ...............ccecccesseeeees 15

O'Conner %. Commonwealth Edison Co., 748 F.

I MEE WEEP, Ty BUOY ceecicssesscorsecenssacencsovecs 22

Osborn v. Bank of United States, 22 U.S. (9 Wheat.)

ERR es RE CARN A 8,10,15,17,21

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190

Ra edatidde Gili Sibck a tit sar catenidcweoatintoriasbectedinsés 9

Pennsylvania v. General Pub. Utils. Co., 710 F.2d

TIE MOIS BUND corns ccivcscansdnesusvensescocereesaenenies 7

Table of Authorities Continued

Page

Pension Benefit Guar. Corp. v. R.A. Gray & Co.,

467 U.S. 717 (19664). «..2-<0005. ssaseeseserecneencensoeseees 27

Richards v. Federated Dept. Stores, Inc., 812 F.2d

211 (5th Cir.), cert. denied, 484 U.S. 824

CRUIIED sc: ccisiccscisideneuceytnanserevetunnaasiiveancatonienrsionines 13

Richards v. United States, 369 U.S. 1 (1962) ....... 22

Rodrigue v. Aetna Casualty & Sur. Co., 395 U.S.

BE CED ook dicicebvcatensnacctvsntincevansenacemiantlenneesn 26

Shoshone Mining Co. v. Rutter, 177 U.S. 505

DD rcnincsixnenneceesorerinsevexenaturtncnsssenensspononentanannss 24

Stibitz v. General Pub. Utils. Corp., 746 F.2d 993

(3d Cir. 1984), cert. denied, 469 U.S. 1214

ERD svncciidevicecinseseccocetrsiassecersnereniecsenereeereness §,7,15,17

The Propeller Genesee Chief v. Fitzhugh, 53 US.

(12 How.) 443 (1852) ....... asuirasbecieeee veuannewerea 18

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336

RITE sicsiridadnnnsenepincsxenasitkvvesckevtavmbvummnacetsarsions 8,12-14

United States v. Sharpnack, 355 U.S. 286 (1958) . 24

Verlinden B. V. v. Central Bank of Nigeria, 461

EF, Ne LIED saskicvsintntnciawendennencucueonvseeserceneenns passim

CONSTITUTIONAL PROVISIONS:

EE oo od scctenincdsaiesciaiseeiaiennbansenncdcenmeceuerebiasentees' 24

OI vic dasseneesicrevstenctnnecadeebannccavorebinininersiensions passim

STATUTES:

Price-Anderson Act, Pub. L. No. 85-256, 71 Stat.

IN aca icciilin: isudtsaslentecdainienansamannenneorebessmices 2

SS TAO TEE (MONO GD icisinssvcvensesccrvcinvecsseecvies 14

Be se I hihi viiastdslcikensepenessesacdeddcrmenteinsnieea 7,8,13

eS ee Oe I aside sceudhiinnndausecnseasbibdennrneseirunmeetes 7,15,17

Be ra ae NE: Gi dcdcabbsdevsiankoncnictaaevstivnndaceeseraiesl 8,12

Be UA, © RI is tedevsvnessneasvesiceresccnstonseionesssnane 8,11-14

Table of Authorities Continued

Page

The Atomic Energy Act, as amended by the Price-

Anderson Act

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42 DBL. SMS oc 4,19

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42 UA. RWS oo osccencctvecice 4,6,19

$2 UBC. §BOUM ID occeveciscsccsscreseercoeecssesesc.c, 21

42 U.S.C. § 2014(ph) o.oo... eeccccccccccccecce... 6,19,22,27

42 U.S.C. § 2210(a) oo. ceeccccccccccccesecesecece...... me 4

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GE UC, GERI cic vccvndevcicsconseaerteceecs 5,6

42 U.S.C. § 2210(MM1) oon... ccccccoscsosseceoceesse.... 23

42 U.S.C. § 2210(n)2) veeeeccccccccececececececececcc 2.6

42 U.S.C. § 2210(nY(8) ooo ccccccccseccccceccecccc 7

MS UB. § BEINN ovcevesecscscercecsevecestn ce 5

42 U.S.C. § 2210(0M1XC) ooeeeceeccecceccecccccecceccc. 23

REGULATIONS:

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GO CPR, GIDC NG crccscriecvianiecivcsccsecseroedeceies.. 16

39 Fed. Reg. 24,936 (1978) ...ccccccccccccccccccc. 16

LEGISLATIVE:

S. Rep. No. 296, 85th Cong., 1st Sess. reprinted

tm 1957 U.S.C.C.A.N. 1808 voecccccccccecceccccecs 3-5,18

H.R. Rep. No. 104, 100th Cong., Ist Sess.

CERT) ssuscercenetuninaienennt ae ee ee 4,6,23

H.R. Rep. No. 660, 100th Cong., 2d Sess., reprinted

im 1988 U.S.C.C.A.N. 766 oes. 14

Governmental Indemnity and Reactor Safety: Hear-

ings Before the Joint Committee on Atomic En-

ergy, 85th Cong., Ist Sess. GROWER ccna 4

—————

IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1991

No. 91-676

JOHN W. GuMBY, Sr., et al.,

Petitioners.

GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN

EDISON Co., JERSEY CENTRAL POWER AND LIGHT Co.,

PENNSYLVANIA ELEcTRIC Co., BABCOCK & WILCOX Co.,

McDermott Inc., U.E. & C.-CATALYTIC, INC., BURNS &

RoE ENTERPRISES, INC., AND DRESSER INDUSTRIES INC.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Third Circuit

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION

Respondents General Public Utilities Corporation,

et al.,! defendants in these public liability actions un-

' Respondents are General Public Utilities Corp., Metropolitan

Edison Co., Jersey Central Power & Light Co., Pennsylvania

Electric Co., Babeock & Wilcox Co., McDermott Incorporated,

U.E.& C.-Catalytic, Inc., Burns & Roe Enterprises, Inc. and

Dresser Industries, Inc. The information required by Supreme

Court Rule 29.1 regarding each of the Respondents is set forth

in Respondents’ Appendix at 39a-41a.

der the Atomic Energy Act, as amended by the Price-

Anderson Act, and appellants in the court below, sub-

mit this brief in opposition to the petition for a writ

of certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

In addition to the constitutional and statutory pro-

visions set forth in Petitioners’ Appendix, the pro-

visions of 42 U.S.C. §§ 2012-14 and 2210 are involved

in this case and are set forth in their entirety in

Respondents’ Appendix at la-38a.

STATEMENT

A. The Present Litigation.

The present cases arise out of the March 28, 1979

accident at Unit 2 of the Three Mile Island nuclear

generating station (““TMI’’). This accident led to the

first and to date the only major litigation under the

financial protection provisions of the Price-Anderson

Act, Pub. L. 85-256, 71 Stat. 576 (1957), which

amended the Atomic Energy Act of 1954. Since the

TMI accident, over 2000 plaintiffs have filed suit in

over 200 actions in state and federal courts in Penn-

sylvania, Mississippi and New Jersey.

Most of the present cases are personal injury claims;

some allege economic injuries such as loss of tourism

revenues. A-38. In the Price-Anderson Amendments

Act of 1988 (the ‘‘Amendments Act’’), Congress, inter

alia, provided a specific statutory basis for original

and removal jurisdiction over cases arising out of nu-

clear incidents such as the one at TMI. Pub. L. 100-

408 §1l(a), 102 Stat. 1076 (1988) (codified at 42

U.S.C. § 2210(n\(2)). Congress made the removal ju-

risdiction applicable to pending cases and, pursuant

to and in conformance with the Amendments Act, the

present cases were removed from state courts and

consolidated in the United States District Court for

the Middle District of Pennsylvania. A-146.

The district court held that it was without removal

jurisdiction because the Amendments Act did not sat-

isfy Art. III “‘arising under’’ jurisdiction. The Third

Circuit reversed, and Petitioners did not seek re-

hearing or rehearing en bance.

B. The Public Liability Action Under The Atomic Energy

Act, As Amended By The Price-Anderson Act.

Although the Art. III question Petitioners present

would require consideration of the federal ingredients

in a congressionally defined cause of action, the ‘‘pub-

lic liability action,’ the Petition contains no descrip-

tion of the comprehensive and unique regulatory

scheme of which that private right of action is a part.

In 1954, with the passage of the Atomic Energy

Act, Congress ended the legal monopoly of the federal

government over production and use of nuclear fuels.

Congress’ purpose in doing so was ‘‘to encourage

widespread participation in the development and uti-

lization of atomic energy for peaceful purposes... .”’

42 U.S.C. § 2013(d). But it quickly became apparent

that private investment would not be forthcoming if

there were no limits on potential liability. S. Rep. No.

296, 85th Cong., Ist Sess. 1, reprinted in 1957

U.S.C.C.A.N. 1808. The Price-Anderson Act was de-

signed ‘‘to remove the economic impediments in order

to stimulate the private development of electric en-

ergy by nuclear power while simultaneously providing

the public compensation in the event of a catastrophic

nuclear incident.’’ Duke Power Co. v. Carolina Envtl.

Study Group, Inc., 488 U.S. 59, 83 (1978); see also

id. at 63-67.

Congress mandated that licensees of commercial nu-

clear power reactors be capable, through private in-

surance or by other financial means, of responding

to claims for damages arising out of a nuclear inci-

dent, up to federally specified limits. 42 U.S.C.

§ 2210(b). ‘‘Nuclear incident’? was defined to cover

any injuries ‘‘arising from the special dangerous prop-

erties’ that made nuclear risk a subject of federal

regulation. S. Rep. No. 296, 85th Cong., Ist Sess. 16,

reprinted in 1957 U.S.C.C.A.N. at 1817; see 42 U.S.C.

§ 2014(q).

Congress recognized that a nuclear incident might

be caused by any of a number of participants in the

nuclear industry. Congress did not want compensation

to be hampered by the complications likely to ensue

if multiple defendants, each with its own insurer, were

actively defending. In a “significant departure from

normal tort law precepts,’ H.R. Rep. 104, 100th

Cong., lst Sess., pt. 3, at 16 (1987), Congress, through

mandatory indemnification provisions, channelled all

public liability to licensees, and away from non-licens-

ees who might otherwise have borne such liability

under ordinary tort law. See 42 U.S.C. §§ 2014(t),

2014(w), 2210(a).2 The channelling provisions alter the

* Congress recognized that the channelling provisions would

protect even a complete stranger to the industry who causes a

nuclear incident, such as an errant pilot. Governmental Indem-

nity and Reactor Safety: Hearings Before the Joint Comm. on

Atomic Energy, 85th Cong., 1st Sess. 20, 109, 114-15, 165 (1957).

(continued)

ordinary congruence in tort law between causing and

bearing liability.*

If a nuclear incident caused damages in excess of

the financial protection required of the licensee, the

federal government indemnified anyone who was li-

able up to a specified limit. 42 U.S.C. § 2210(c). All

public liability growing out of a single nuclear incident

was capped at the total of the financial protection

and the indemnification. 42 U.S.C. § 2210(e). The gov-

ernment’s potential indemnification liability for TMI

public liability is $85 million.

After passage of the Price-Anderson Act, Congress

continued to refine the compensation provisions over

a thirty year period. In 1966, dissatisfied with sub-

stantive state tort law, Congress authorized the Nu-

clear Regulatory Commission (‘“NRC’’) to require

licensees to waive negligence and other defenses in

the event of an extraordinary nuclear occurrence

(‘“ENO’’), and conferred federal jurisdiction over

claims for public liability arising out of such an oc-

currence.‘ Congress also authorized federal courts to

formulate an equitable distribution plan whenever the

federally mandated funds may constitute a limited

fund because the federal liability limits may be ex-

ceeded. 42 U.S.C. § 2210(0). In 1975, Congress man-

dated a second tier of private insurance, to be funded

by deferred premiums paid by all licensees of nuclear

See also S. Rep. No. 296, 85th Cong., Ist Sess. 17, reprinted

im 1957 U.S.C.C.A.N. at 1818-19.

3 All but one of the defendants in these cases are non-licensees.

4 The NRC has determined that the TMI accident was not an

ENO. See Stibitz v. General Pub. Utils. Corp., 746 F.2d 993,

996 n.3 (3d Cir. 1984), cert. denied, 469 U.S. 1214 (1985).

power reactors, if and when required. 42 U.S.C.

§ 2210(b). This retrospective premiums obligation con-

stitutes a federally mandated industry-wide shared li-

ability rule. Congress also committed itself to further

compensation in the event damages exceeded the cap

on public liability. 42 U.S.C. § 2210(e).

In 1988, in the Amendments Act, Congress ad-

dressed the problem of the nuclear incident that gives

‘rise to multiple claims but is not an ENO. Congress

adopted a national policy of uniform treatment for all

persons injured in a single nuclear incident. See H.R.

Rep. No. 104, 100th Cong., 1st Sess., pt. 1, at 18

(1987) (‘desire of Congress for equitable and uniform

treatment of victims of a nuclear accident’); see also

A-88, A-98 to A-99. The Amendments Act creates a

federal cause of action, the ‘‘public liability action,”’

which encompasses “‘any suit asserting public liabil-

ity,” 42 U.S.C. § 2014(hh);> confers original and re-

moval jurisdiction for public liability actions arising

out of a given nuclear incident on a single federal

district court—the district court in the district where

the nuclear incident occurred, 42 U.S.C. §§ 2014(hh),

2210(n\(2); and directs that the ‘‘substantive rules for

decision”’ in public liability actions ‘“‘shall be derived

from the law of the State in which the nuclear in-

cident involved occurs’’ unless the state law is ‘‘in-

consistent’’ with the compensation provisions of the

Act. 42 U.S.C. § 2014(hh).

In the Amendments Act, Congress also enacted spe-

cial case management and consolidation authorities

* ‘Public liability” is separately defined as ‘‘any legal liability

arising out of or resulting from a nuclear incident ... .”’ 42

U.S.C. § 2014(w) (emphasis added).

for the federal district court, and authorized the adop-

tion of special procedural rules to expedite cases or

to allow more equitable consideration of claims. 42

U.S.C. § 2210(n\3).®

C. The Three Decisions Prior To The 1988 Amendments.

The TMI litigation gave rise to three Third Circuit

decisions prior to the Amendments Act, when Con-

gress had not yet obviated application of the statutory

“‘well-pleaded complaint’”’ requirement under 28 U.S.C.

§ 1331.7 None of the three cases addressed any con-

stitutional issue under Art. III, and none was re-

viewed by this Court.

D. The Decision Below.

The district court found Art. III ‘“‘arising under’

jurisdiction lacking because Congress had not codified

the substantive standards of liability for public lia-

bility actions. A-152. The district court stayed its re-

mand order, however, and certified the Art. III

question via 28 U.S.C. § 1292(b).

The Third Circuit entertained the Section 1292(b)

appeal and reversed the district court’s constitutional

* Contrary to the impression left by the Petition that only the

Respondents went before Congress to seek the Amendments

Act, (see Pet. 5-6, 12), the ‘‘decision to expand the jurisdictional

grant was based upon [testimony by] ‘[a]ttorneys representing

both plaintiffs and defendants in the TMI litigation ... that the

ability to consolidate claims in federal court would greatly ben-

efit the process for determining compensation for claim-

ants....’’’ A-79 n.18 (quoting S. Rep. No. 218, 100th Cong.,

2d Sess. 18 (1988)) (emphasis added).

’ Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir.

1986); Stibitz, 746 F.2d 993; and Pennsylvania v. General Pub.

Utils. Co., 710 F.2d 117 (3d Cir. 1983).

determination. The court first addressed whether the

district court’s decision to remand was reviewable at

all, in view of the bar on review of remand orders

in 28 U.S.C. § 1447(d). Following this Court’s decision

in Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

336, 346 (1976), the court analyzed whether the dis-

trict court’s decision rested upon the ground specified

in 28 U.S.C. § 1447(c), “‘lack{] [of] subject matter ju-

risdiction.’’ Here, the district court’s remand rested

“solely on its determination that Congress exceeded

its constitutional authority’’ when it made the grant.

A-57 (emphasis in original). Such a constitutional de-

termination, the court found unanimously, ‘‘was not

the type of federal subject matter jurisdictional de-

cision intended to be governed” by Section 1447(d).

A-58. The court declined to attribute to Congress an

intent to make federal district courts the ‘‘final ar-

biters of the constitutionality”’ of federal jurisdictional

statutes. A-61; see also A-66.°

The opinion for the court begins its examination of

the Art. III question with the “‘central teaching’”’ of

Osborn v. Bank of United States, 22 U.S. (9 Wheat.)

738 (1824), reiterated and applied in Verlinden B. V.

v. Central Bank of Nigeria, 461 U.S. 480 (1983), and

Mesa v. California, 489 U.S. 121 (1989), that a statute

does not come within the Art. III “arising under’

jurisdiction if it is “nothing more than a jurisdictional

grant.’’ A-70; see also id. at A-70 to A-75. In the

* Tnus, contrary to the “floodgates” assertions in the Petition,

the Court of Appeals did not create an exception from 28 U.S.C.

§ 1447(d) for any case certified under 28 U.S.C. § 1292(b), or

for any case involving any kind of constitutional issue. Rather,

the Court of Appeals carefully constricted its limiting interpre-

tation of § 1447(d). See Argument section I, infra.

Amendments Act, Congress did more than confer ju-

risdiction: ‘‘Congress intended to—and did—create a

federal cause of action which will implicate substan-

tive aspects of federal law.’’ A-82. ‘‘At the threshold

of every action asserting liability growing out of a

nuclear incident ... is a federal definitional matter

to be resolved: Is this a public liability action?’ A-

83. A claim growing out of a ‘“‘nuclear incident is

compensable under the terms of the Amendments Act

or it is not compensable at all.”’ Id. (emphasis in orig-

inal). ‘‘[N]o state cause of action based upon public

liability’ any longer exists. Jd.

Relying on text and legislative history, the court

found that in a public liability action, ‘‘state law pro-

vides the content of and operates as federal law.”’ A-

85. Nothing in the case law supports the proposition

that ‘‘Congress may not constitutionally rely upon

state rules of decision as a foundation for a particular

statutory scheme.” A-83.

In the alternative, even if ‘“‘it is state law itself,

rather than state law operating as federal law, which

forms the basis for decision in public liability actions”’

(A-87), the ‘‘federal elements involved in the Price-

Anderson scheme are ... sufficient’”’ to satisfy Art.

III. A-88. “‘Congress has placed an overlay of federal

law upon the rights and remedies previously available

under state law.’”’ A-91. The federal overlay is in var-

ious provisions of the compensation scheme of the

Price-Anderson Act (see id.), and in the pervasive

safety regulation of nuclear activities under the

Atomic Energy Act. Given the preemption of the field

of nuclear safety regulation found by this Court in

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190, 212

(1983), the duty of care owed by defendants to

plaintiffs in public liability cases is ‘‘dictated”’ by fed-

eral safety regulations. A-91, A-95 to A-96.

‘“{I]mportant federal questions”’ are ‘“‘indispensable in-

gredients of the public liability action.” A-96.°

As did the majority, the concurring opinion sustains

the statute without reliance on any theory of “‘pro-

tective jurisdiction.”” A-96 n.23, A-102 (concurring

opinion). A jurisdictional grant ‘‘must rest on more

than a belief that a federal forum would be fairer or

more efficient.’’ A-137.

The concurrence upholds the statute under a con-

stitutional standard explicitly designed to avoid the

broadest implications of Osborn, under which the mere

possibility of federal issues arising might suffice. See

A-117 to A-118. The concurring opinion examines (a)

the “‘likelihood that substantive federal issues will

arise in a particular class of cases,’’ A-117; and (b)

whether original jurisdiction, as against removal or

appellate jurisdiction, is important to the accomplish-

ment of Congress’ substantive purposes. A-117 to A-

118, A-137. Applying that test, the concurrence con-

cluded that “‘the rationale for permitting original fed-

eral jurisdiction is at least as strong here as it was

in Verlinden.” A-138.

*The concurrence recognized that federal safety regulations

“will play an integral role in a large proportion” of public lia-

bility actions. A-123. The court below did not address the extent

to which the federal “‘overlay’”’ may affect other elements of the

cause of action, such as whether strict liability applies; proximate

cause; the measure of damages for the types of injuries enum-

erated in the definition of ‘‘nuclear incident;”’ affirmative de-

fenses; the duty to mitigate; and burdens of proof.

Having sustained the constitutionality of the juris-

dictional grant, the majority and concurrence agreed

that the Amendments Act’s “provision for retroac-

tivity was rationally directed to a legitimate federal

concern.”’ A-99, A-100 (concurring opinion).

REASONS FOR DENYING THE WRIT

I. THE REVIEWABILITY ISSUE DOES NOT

WARRANT REVIEW.

As the court of appeals observed, the 1447(d) issue

in this case is “unique. No case interpreting the reach

of section 1447(d) has addressed the particular con-

stitutional dilemma presented here.’ A-53. Congress

enacted the predecessor to Section 1447(d) over a

century ago, in 1887. Petitioners cite no case, and

Respondents have found none, presenting the ques-

tion presented here—whether Section 1447(d) bars all

review where a district court remands because it finds

the statute granting it jurisdiction to be unconstitu-

tional under Art. III. ‘‘Never before,’ as Petitioners

themselves observe, has an Art. III issue been pre-

sented to this Court in “‘the procedural posture pre-

sented by this case.” Pet. 2.

There is no reason to believe that this novel issue

of reviewability under Section 1447(d) will recur with

any frequency in the future. For this 1447(d) issue

to arise, (a) a case must come to the district court

by way of removal, (b) the district court must deter-

mine that an express statutory grant of jurisdiction

is unconstitutional under Art. III, which is itself a

very rare occurrence, and (c) the Art. III determi-

nation must be the sole ground for remand (as was

the case here, A-57).!° It is not surprising that this

issue of reviewability has never before arisen, and

indisputable that it is unlikely to arise with any fre-

quency in the future. Despite Petitioners’ alarm, the

careful resolution by the court below of this narrow

and unprecedented issue has not “‘rendered meaning-

less the appellate review prohibition of § 1447(d).”’

Pet. 8.1!

As the issue has not arisen before, there is no

conflict between the decision below and any decision

of this Court or of any other circuit. In particular,

and contrary to the Petitioners’ assertion (Pet. 9, 11),

there is no conflict with this Court’s decision in

Thermtron, 423 U.S. 336. The remand order in

Thermtron was not based on a constitutional ground,

and the Court in fact reviewed (and reversed) the

remand order. See 423 U.S. at 343-44, 351. Similarly,

‘0 Tf there is an independent and sufficient non-Art. III ground

for a remand, a court of appeals would not review any Art. III

issue even in the rare case where such an issue is present.

Occasionally, district courts do remand upon grounds not enum-

erated in § 1447(c), for example, contractual waivers of the right

to remand, or procedural defects not contemplated by that sec-

tion. Such remands have been held to be reviewable. See A-49

to A-53.

'! Petitioners make a far-fetched prediction that confusion over

when a remand order presents a question of ‘‘constitutional pro-

portion” could cause ‘‘countless appeals” and delay ‘“‘thousands

of cases.” Pet. 11. In the extremely rare case where a remand

order purports to rest upon an Art. III determination about a

jurisdictional statute, that fact will be evident. If the remand

order does not purport to rest upon an Art. III determination,

the decision below will have no bearing. Contrary to the loose

description in the Petition (at 3, 11), the holding below h-s

nothing to do with questions of ‘‘constitutional proportion” not

involving application of Art. III to a jurisdictional statute.

Petitioners’ assertion of conflict with other circuits is

inaccurate. None of the three cases cited by

Petitioners involved a remand based on a determi-

nation by the district court that the grant of juris-

diction was unconstitutional.!?

The court’s resolution of the 1447(d) issue was the

correct one. In Thermtron, this Court found that Con-

gress did not intend “to extend carte blanche au-

thority to the district courts to revise the federal

statutes governing removal by remanding cases on

grounds that seem justifiable to them but which are

not recognized by the controlling statute.’”’ Therm-

tron, 423 U.S. at 351. It is at least equally unlikely

that Congress conferred carte blanche authority on

district courts to “‘revise’’ removal statutes by strik-

ing them down as _ unconstitutional. Petitioners’

12 See Pet. 10-11, citing Federal Sav. & Loan Ins. Corp. v.

Frumenti Dev. Corp., 857 F.2d 665 (9th Cir. 1988); Richards v.

Federated Dept. Stores, Inc., 812 F.2d 211 (5th Cir.) (per curiam),

cert. denied, 484 U.S. 824 (1987); and In re Bear River Drainage

Dist., 267 F.2d 849 (10th Cir. 1959). The Petition cites Richards

as recognizing that review is precluded even where constitutional

determinations are made by the district court. Pet. 10. But the

reference to “‘constitutional infirmities” in that case was dictum

in a two paragraph per curiam order, and says nothing about

how the Fifth Circuit would have decided this case. That the

courts of appeals in F’rumenti and Bear River declined to review

questions that had been certified under § 1292(b) does not place

those cases in conflict with the decision here. Petitioners are

simply wrong in asserting that the decision below categorically

““except{ed] interlocutory review” from § 1447(d). See Pet. 8. The

dispositive element here was that the district court’s decision

to remand rested upon its determination that the statute grant-

ing jurisdiction was itself unconstitutional.

'3 Petitioners attempt to draw support from the repeal of 28

(continued)

interpretation can be sustained only through the

‘“‘woode[n]’”’ reading that this Court explicitly rejected

in Thermtron, 423 U.S. at 352."

II. THE ART. III ISSUE DOES NOT WARRANT

REVIEW.

A. The Decision Below Applied Traditional Principles To

A Distinctive Federal Statute; It Is Not In Conflict

With Any Other Decision.

This case involves the application of Art. III to a

highly particularized federal statute. The Petition does

not contain even a suggestion of conflict among lower

courts concerning the Art. III issue, and there is in

fact no conflict. Apart from the decision below, three

lower court decisions have addressed the jurisdiction

of district courts over cases arising out of nuclear

incidents. Two were decided in the Third Circuit, prior

U.S.C. § 1252 (Pet. 10), but that statute, which authorized direct

appeal to this Court of lower court decisions holding acts of

Congress unconstitutional where the United States was a party,

is irrelevant to the reviewability issue here. Indeed, in repealing,

Congress affirmed the importance of ‘“[p]rompt correction or

confirmation of lower court decisions invalidating acts of Con-

gress’’ through discretionary review. H.R. Rep. No. 660, 100th

Cong., 2d Sess. 10 n.24, reprinted in 1988 U.S.C.C.A.N. 766,

776 n.24.

'4 Petitioners miss the point of the holding below (and of the

reasoning in Thermtron) when they argue that because Congress

has in various other statutes created exceptions to the bar in

§ 1447(d), no review should have been available here. Pet. 9 n.3.

Since this remand was not within the statutory bar, no statutory

exception to the bar was necessary. See A-67 n.10. Moreover,

the argument makes sense only if Congress is held to assume

that its acts are likely to be deemed unconstitutional, thus re-

quiring provision for this likelihood. The presumption is, of

course, the opposite. Acts of Congress are presumed to be con-

stitutional.

to the Amendments Act, under the general federal

question statute, 28 U.S.C. § 1331. Neither ad-

dressed Art. III. The third was a more recent decision

by a district court which upheld the constitutionality

of the Amendments Act. O’Conner v. Commonwealth

Edison Co., 770 F. Supp. 448 (C.D. Ill. 1991).'*

The decision below is not in conflict with any de-

cision of this Court, nor does it apply any new Art.

III ‘‘arising under’’ principles. Both the majority and

the concurrence declined to rely on any theory of

“protective jurisdiction.”’ The majority’s analysis ‘‘de-

pends entirely’’ (A-75) upon an application of the

“central teaching’ of Osborn, ‘‘clarified’’ in Verlinden

(A-70) and recently “reiterated” in Mesa (A-72), that

‘“‘a case cannot be said to arise under a federal statute

. that ... is nothing more than a jurisdictional

grant.’ A-70. The concurrence develops a two-step

analysis explicitly designed to limit, rather than ex-

tend, the broadest implications of the Osborn decision.

A-117 to A-119.

Applying Osborn and Verlinden, the majority’s anal-

ysis turns on its determinations concerning the sta-

'5 Kick, 784 F.2d 490; Strbitz, 746 F.2d 993. It is noteworthy

that in Stibitz, in the context of its ruling on the application of

the well-pleaded complaint rule prior to the Amendments Act,

the Third Circuit recognized that federal questions may well

arise in the course of public liability litigation. 746 F.2d at 996.

‘6 The district court in O’Conner reasoned that “‘under certain

circumstances ... Congress has the power to incorporate state

law as federal law so that state law is essentially federalized.”’

770 F. Supp. at 452. Further, “‘even if the state rules of decision

which are incorporated in ‘public liability actions’ . . . would not

be regarded as federal law ... Article III nonetheless authorizes

federal jurisdiction given the extensive federal questions inherent

in cases litigated under this Act.” Jd.

tutory scheme of which the jurisdictional grant is only

a small part. The majority finds, for example, that

injuries arising from ‘‘nuclear incidents’ are com-

pensable via the federal public liability action or not

at all (A-83); at the ‘‘threshold”’ of every such action

is a ‘‘federal definitional matter’’ (id.); Congress in-

tended that the rules of decision derived from state

law ‘‘constitute federal law’’ (A-87); even if Congress

did not intend that state law operate as federal law,

Congress effectuated its purposes by creating an

“overlay of federal law’’ which alters a number of

“rights and remedies previously available under state

law” (A-91); in particular, “the duty the defendants

owe the plaintiffs in tort is dictated by federal law.”’

Id." Given the court’s statutory conclusion that ‘‘there

are important federal questions to be resolved which

are indispensable ingredients of the public liability ac-

tion” (A-96), the court was hardly breaking new con-

stitutional ground in holding that Congress did not

exceed its constitutional authority when it conferred

federal jurisdiction over public liability actions.

Petitioners’ real quarrel is thus not with the Art. III

determination below, but with the court’s conclusions

regarding the operation and effect of the underlying

Price-Anderson Act. These conclusions, of course, are

specific to the Price-Anderson Act, and do not war-

rant certiorari review.

'7 For example, pursuant to authority extended by Congress

to the NRC and transferred to the Environmental Protection

Agency, see 39 Fed. Reg. 24,936 (1973), the EPA promulgates

regulations controlling permissible radiation exposures to per-

sons off-site from operations at a licensed reactor. See 40 C.F.R.

§ 190.10. On-site exposures, which may also give rise to a public

liability claim, are subject to the permissible dose limits set by

the NRC. See 10 C.F.R. § 20.

B. The Court Of Appeals Correctly Decided The Art. III

Issue.

Petitioners’ contention that this case tests the “‘lim-

its’ of Art. III (Pet. 12) rests on two inaccurate as-

sertions about the Amendments Act: that Congress

did nothing more to satisfy Art. III than enact an

“incantation of the magical words—‘arising under’ ”’

(id. at 13) and that Congress did ‘‘nothing more than

. attempt to adopt state law as federal law.’’ Jd.

Both of these assertions ignore the statute and the

extensive statutory analysis by the court below.

Petitioners never do address the constitutionality of

the statute that Congress actually enacted.

Petitioners’ argument further proceeds in part from

the irrelevant proposition that, prior to the Amend-

ments Act, their claims had been determined by Sti-

bitz and Kiick to be ‘“‘state law claims.’’ But neither

Stibitz nor Kiick addressed the nature of Petitioners’

claims in the context of the Amendments Act. Rather,

both decisions were based on the well-pleaded com-

plaint rule and its application to the determination

that federal question jurisdiction was lacking under

28 U.S.C. § 1831.

Moreover, while the Petition asserts that there must

be some ‘‘federal ingredient in the Petitioners’ claims’’

(Pet. 12), Mesa v. California instructs that that prem-

ise is faulty. Mesa holds that constitutional ‘‘arising

under’’ jurisdiction exists over state tort claims if a

colorable federal defense is presented. 489 U.S. at

136-37. See also Osborn, 22 U.S. at 822.

Petitioners insist that the Amendments Act is a

‘mere jurisdictional grant’ and therefore ‘‘constitu-

tionally deficient.’’ Pet. 12. In enacting a purely ju-

sé

risdictional statute, however, Congress does ‘not

intend to exercise its power to regulate commerce;

nor to derive its authority from that article of the

Constitution.”” The Propeller Genesee Chief v. Fitz-

hugh, 53 U.S. (12 How.) 448, 452 (1852). Instead,

Congress relies solely upon its authority to constitute

inferior federal courts. Jd. at 451.

When Congress enacted the Price-Anderson Act,

which the Amendments Act amends, it expressly ex-

ercised Art. I powers other than its power to con-

stitute inferior federal courts. See 42 U.S.C. §§ 2012,

2013(d); S. Rep. No. 296, 85th Cong., Ist Sess. 15,

reprinted in 1957 U.S.C.C.A.N. at 1816. “The liabil-

ity-limitation provision [is] a classic example of an

economic regulation ... .’”’ Duke Power, 438 U.S. at

83. Congress’ exercise of substantive Art. I powers

supports Art. III ‘arising under’’ jurisdiction. Verlin-

den, 461 U.S. at 496 (“Congress expressly exercised

its power to regulate foreign commerce’’).

Moreover, unlike the statute in Propeller Genesee,

Congress did not simply say that federal courts have

jurisdiction over torts arising out of nuclear incidenis.

Rather, “‘the jurisdictional provisions of the Act are

simply one part of [a] comprehensive scheme,” Ver-

linden, 461 U.S. at 496, in this case a federal scheme

of compensation and safety regulation. Under this

comprehensive scheme, there is more than a ‘‘mere

speculative possibility that a federal question may

arise at some point in the proceeding.” Jd. at 493.

By statute, the starting point of any public liability

action must be the federal statutory question, is this

case one claiming compensation for ‘‘bodily injury,

sickness, disease, or death, or loss of or damage to

property, or loss of use of property, arising out of

5 initials

or resulting from» the radioactive, toxic, explosive, or

other hazardous properties of source, special nuclear,

or byproduct material.’’ (Definition of ‘‘nuclear inci-

dent” at 42 U.S.C. § 2014(q)). If not, then the action

is not a “public liability action’”’ and no part of the

Price-Anderson Act, including its jurisdictional pro-

visions, applies. Plaintiff has his ordinary state tort

remedies which he may pursue in the ordinary way.

But if the action is one seeking compensation as a

result of a ‘‘nuclear incident’’ as defined (i.e., as a

result of the nuclear risk which was the subject of

Congress’ concern), then it is a “public liability ac-

tion.’’ See 42 U.S.C. §§ 2014(w), 2014(hh). From that

determination flow a number of consequences having

far more than mere jurisdictional significance. These

non-jurisdictional consequences follow whether the

public liability action is in federal or state court.

First among these is that any judgment, state or

federal, will be satisfied from the funds in the man-

dated financial protection system, rather than from

the assets of individual defendants, and total public

liability is subject to a federal ceiling. These provi-

sions remove the risks characteristic of ordinary tort

law that a plaintiff will be unable to recover on a

judgment, and that a defendant will sustain a bank-

rupting liability. Second, whether the suit is in federal

or state court, licensees bear the financial responsi-

bility for “‘public liability,’ even if they are not the

cause of the injury, and non-licensees may not be held

financially responsible, even if they are the cause. Cf.

Verlinden, 461 U.S. at 496-97 (the Foreign Sovereign

Immunities Act ‘‘governs the types of actions for

which foreign sovereigns may be held liable in a court

in the United States, federal or state’’). The deter-

rence role of ordinary tort law is thus altered. Indeed,

liability that reaches the second tier of financial pro-

tection, funded by the retrospective premiums, would

be borne by all federal licensees. The retrospective

premiums provisions thus create an industry-wide

shared liability rule.

Furthermore, given the dual investment and com-

pensation objectives of the Price-Anderson Act, a

plaintiff may not simply choose to ‘‘waive’’ the federal

compensation scheme and pursue his traditional state

law remedies. One of the principal purposes of the

Price-Anderson Act was to remove the disincentive

to participation in the nuclear power program iden-

tified when the Act was initially adopted. In order to

achieve that purpose, Congress made the decision to

insulate the assets of those participating in the in-

dustry from tort suits, and to replace that source of

funds with the “financial protection system’’ of the

Act. See pp. 3-5, supra.'®

'8 Because the public liability action is the exclusive means by

which someone injured as a result of a nuclear incident may

obtain compensation, it makes no difference whether the plaintiff

invokes the Act or ignores it. A plaintiff whose injury is alleged

to have resulted from the nuclear risk may not ‘‘waive”’ his

federal action and pursue state law recovery, since to do so

would frustrate the aspect of the Price-Anderson Act which

protects private participants in the nuclear power industry. Sim-

ilarly, a plaintiff may not have access to the federally-created

financial protection system unless his injury is alleged to have

resulted from the nuclear risk. A plaintiff alleging that he

dropped a heavy fuel rod on his foot, breaking a bone, would

not have access to the financial protection funds; a plaintiff

alleging a cancer from exposure to radiation from that same

fuel rod would not be able to obtain and execute upon a state

or federal court judgment apart from the financial protection

system.

In terms of Article III jurisprudence, then, whether

or not a plaintiff’s complaint precipitates operation of

the “‘financial protection system”’ will ‘‘for[m] an orig-

inal ingredient in every cause.’’ Osborn, 22 U.S. at

824; see also A-83. The provisions of the Price-An-

derson Act do not ‘‘merely concern access to the fed-

eral courts.’ Verlinden, 461 U.S. at 496. They will

always determine who pays, and they may determine

whether anyone pays.'? They will determine which

claims are governed by state law rules, and which

are governed by federal rules of decision ‘‘derived

from”’ state rules not “‘inconsistent’’-with the federal

compensation scheme. They will determine which

claims are subject to the cap on liability, whether non-

licensees are protected by the channelling provisions,

and whether the retrospective premium provisions will

apply. Congress may “secure ... a trial in the federal

courts,’ Osborn, 22 U.S. at 822, for persons whose

liability Congress has imposed, capped, or channeled

entirely to others.

Apart from the structural changes effected by the

Act, resolution of the question of due care in public

liability actions will almost certainly involve the ap-

plication of federal safety regulations, whether be-

' For example, an action barred by the statute of limitations

of the incident-state might be barred completely, even if the

statute of limitations to be applied would otherwise have been

that of the state in which the action had been commenced. Cf.

Bonner v. Chevron U.S.A., 668 F.2d 817 (5th Cir. 1982). The

“precautionary evacuation” (see 42 U.S.C. § 2014(gg)) creates a

remedy unknown at common law (the essence of a “‘public nuis-

ance’ at common law is that the general public cannot recover

for it). The omnibus insurance and indemnity will eliminate con-

tribution and indemnity claims which often dominate other ‘‘toxic

tort”’ litigations. See also n.22, infra.

cause of preemption, as the majority below believed

(see A-91 to A-96), or because the state law is found

to incorporate the federal standard, as two district

courts have found,2° or because the federal standard

is considered evidence of due care.

Additional federal ingredients will necessarily be

present in every public liability action, because Sec-

tion 2014(hh) requires that the court hearing that ac-

tion ‘‘derive’’ the “‘substantive rules for decision” from

the law of the state where the nuclear incident oc-

curred, unless such state law is ‘“‘inconsistent’’ with

provisions of the federal scheme. Thus, in applying

this federal statute, the trial court must first deter-

mine what rules of decision are ‘‘substantive’’ within

the meaning of the statute. That is a federal ques-

tion.?! Having made that decision, the court must then

compare the substantive rules of decision of the in-

0 See Coley v. Commonwealth Edison Co., 768 F. Supp. 625

(N.D. Ill. 1991); Hennessy v. Commonwealth Edison Co., 764 F.

Supp. 495, 501 (N.D. Ill. 1991); O’Conner v. Commonwealth Edi-

son Co., 748 F. Supp. 672, 678 (C.D. Ill. 1990).

21 It is doubtful that the body of law following Erie R.R. v.

Tompkins, 304 U.S. 64 (1938), will provide a ready source of

answers. The policies and purposes of the Price-Anderson Act

are not those of Erie and the Rules of Decision Act. For ex-

ample, the proper conflict-of-laws rule will be the one that best

effectuates Congress’ intent in the Price-Anderson Act. Compare

the concurrence below, A-104 (Amendments Act requires court

“to apply the law of the state where the nuclear incident oc-

curred, even if state law would otherwise look to the law of

some other state’’) with Richards v. United States, 369 U.S. 1,

7, 10 (1962) (under Federal Tort Claims Act: conflict-of-law rule

of the state where negligent act occurred) and with Klaxon Co.

v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) (under Rules of

Decision Act: conflict-of-law rule of forum state).

cident state with the compensation provisions of the

Price-Anderson Act, to determine whether there is

any inconsistency. That is also a federal question.”

As such, these questions must be decided in light of

the text, structure and purpose of the Price-Anderson

Act, in its larger context as part of the Atomic En-

ergy Act.

Finally, under Congress’ decision to “‘derive’’ rules

of decision from the law of the incident-state (which

in and of itself leaves considerable room for the ex-

ercise of judgment by the court), state law applies in

a public liability action only because Congress adopted

it as federal law. As the court below found, ‘‘Congress

intended that the rules of decision constitute federal

law.”’ A-87; see also A-85 to A-87.28

When Congress determines that the content of rules

of decision needed to fill out its program are to be

derived from state law, as it did in the Amendments

*2 The possible areas in which the question of inconsistency

may arise are manifold. For example, should claims for loss of

consortium, assuming state law permits them, be compensable

under the Act’s definition of ‘‘bodily injury, sickness, disease,

or death;’”’ should claims for increased risk of future injury be

presently compensable, which the laws of some states permit,

when the federal compensation scheme expressly directs that

funds be held in reserve for ‘‘possible latent injury claims which

may not be discovered until a later time,’ 42 U.S.C.

§ 2210(0X1C), and provides a discovery rule for limitations of

actions. Id. § 2210(n\X1). See also n.19, supra.

*3 Congress modelled the ‘derived from’’ provision in the

Amendments Act on the Outer Continental Shelf Lands Act.

See H.R. Rep. 104, 100th Cong., 1st Sess., pt. 1, at 18 (1987).

This Court has not questioned Art. III “arising under’’ juris-

diction under that Act. See Rodrigue v. Aetna Casualty & Sur.

Co., 395 U.S. 352 (1969); see also A-86 to A-87.

Act, it is exercising its legislative authority to reg-

ulate under Art. I. It makes a “basic legislative de-

cision ... to conform the [federal] laws ... to the

local laws ... .”” United States v. Sharpnack, 355 U.S.

286, 293 (1958) (rejecting delegation attack on Fed-

eral Assimilative Crimes Act).*4

There are good reasons why Congress made such

a choice in the Amendments Act. A principal purpose

of Congress was to secure the efficient determination

of public liability actions. To secure those goals, it

made perfect sense for Congress to refer to well de-

veloped state law tort rules with which both counsel

and the courts would already be familiar. It is not

because of congressional default or indifference that

state law found not to be “‘inconsistent’’ was selected

to provide the content of the federal rules of decision.

The incorporation of state rules into the larger federal

matrix of Congress’ program was an affirmative

choice to serve an identified federal goal.

Contrary to Petitioners’ assertion (Pet. 13), what

is involved here is not the general question whether,

because an adoptive statute is a legislative act of

Congress under Art. I, it is without more a law of

the United States under Art. III. For here, as in

Verlinden, there is more.» As already described, Con-

*4 The statement in Shoshone Mining Co. v. Rutter, 177 U.S.

505 (1900), quoted by Petitioners (Pet. 14) was with reference

to the federal question statute, not Art. III. See 177 U.S. at

506 (‘The question ... is not one of the power of Congress,

but of its intent.’’).

*° Because Verlinden found that specific federal questions were

necessarily involved in suits under the Foreign Sovereign Im-

munities Act, it did not reach the question whether the adoptive

provisions of that Act would separately satisfy Art. III. See 461

U.S. at 495 n.22.

gress has occupied the field of nuclear safety regu-

lation, and altered the opportunity for recovery and

the incidence of liability through the compensation

scheme.

Moreover, in the Amendments Act, Congress de-

cided upon a national policy of uniform treatment for

all persons injured in the same nuclear incident. To

achieve this policy, Congress chose not simply a fed-

eral forum but a single forum, by conferring venue

only in the district court in the district where the

incident occurred. Uniformity would in fact be un-

likely if multiple courts were deriving federal rules

of decision by separately determining what elements

in the law of the incident-state were ‘‘substantive’’

and not ‘“‘inconsistent’’ with the Price-Anderson Act;

separately identifying or attempting to predict state

law as to those elements; and otherwise making myr-

iad rulings in the course of multiple, separately con-

ducted litigations. ‘“‘With the federal jurisdiction and

removal provisions ... Congress ensured that all

claims resulting from a given nuclear incident would

be governed by the same law ...’’ A-88; see also A-

98 to A-99. The combination of jurisdiction and venue

provisions is necessary to realize the substantive fed-

eral policy of uniformity.”

6 The Petition is not correct when it asserts that ‘‘Congress’s

interest in uniformity is belied by its grant of concurrent rather

than exclusive jurisdiction.” Pet. 15 n.5. That there is concurrent

jurisdiction does not reduce the importance of the policy of uni-

formity. See Verlinden, 461 U.S. at 497 (under statute that, like

the Amendments Act, retained concurrent jurisdiction, ‘‘Con-

gress deliberately sought to channel cases against foreign sov-

ereigns away from the state courts and into federal courts,

thereby reducing the potential for a multiplicity of conflicting

(continued)

It is in the context of these substantive federal

purposes that Congress authorized courts to ‘‘derive”’

a federal rule of decision from state law. This is not

an adoptive statute without more. Congress’ express,

deliberate adoption of state law as federal law in the

Amendments Act satisfies the requirement of Art. III

“arising under’’ jurisdiction that a case arise under

federal law. There is no novel or difficult Art. III

question requiring review by this Court.

Ill. THE RETROACTIVITY ISSUE DOES NOT

WARRANT REVIEW.

The court below observed that Petitioners’ argu-

ment concerning the retroactive application of the ju-

risdictional grant was “‘skeletal,’’ (A-96), and the

Petition here fails to show any reason why this Court

should review the question. In upholding the retro-

active feature of the Amendments Act, the court be-

low applied standard principles, and made, as those

principles require, a determination that is highly spe-

cific to this statute. The decision below is not in con-

flict with a decision in any other circuit. See A-99.?

Petitioners assert that the decision below is con-

trary to this Court’s decisions in two cases, each of

results ...’’). Congress could reasonably expect that when mul-

tiple public liability actions arising out of the same incident are

brought in multiple courts, the defendant (or the NRC) could

ordinarily be counted on to remove to the designated federal

court, thereby avoiding the risks and burdens of litigation in

multiple courts. By contrast, no one plaintiff has an interest in

uniformity as such.

*7 The issue of retroactive application of the removal provision

cannot arise with frequency in the future, because, other than

the instant cases, there are only a limited number of pending

public liability actions that were filed before the Amendments

Act.

which, however, upheld retroactive applications of

federal statutes. Chicago & N.W. Ry. v. Whitton, 80

U.S. (13 Wall.) 270 (1872), affirmed retroactive ap-

plication of a removal statute. And the court below

applied the test stated in the more recent case, Pen-

sion Benefit Guar. Corp. v. R.A. Gray & Co., 467

U.S. 717 (1984), namely, whether the retroactive ap-

plication ‘‘is supported by a legitimate legislative pur-

pose furthered by rational means.”’ A-97 to A-98

(quoting 467 U.S. at 729). The court found that test

satisfied here, in view of Congress’ purposes to pro-

mote uniform and equitable treatment of victims and

the orderly distribution of funds. A-98 to A-99.

Finally, Petitioners assert that the Amendments Act

“may” violate the separation of powers by “directing

the federal courts to find that a federal cause of

action arising under the constitution exists in these

cases.’’ Pet. 15 n.6. But the Amendments Act states

only that public liability actions arise under Section

2210, the compensation provisions of the Act. 42

U.S.C. § 2014(hh). Congress did not seek in any way

to limit judicial authority to decide the constitution-

ality of its jurisdictional grant or the outcome of any

public liability action. Therefore, the Amendments Act

does not present separation of powers concerns.

CONCLUSION

For the foregoing reasons, the Petition should be

denied.

JOHN G. HARKINS, JR.

Counsel of Record

A. H. WILcox

ELLEN KITTREDGE SCOTT

PEPPER, HAMILTON & SCHEETZ

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103-2799

(215) 981-4000

Of Counsel:

PAUL J. MISHKIN RICHARD B. HERZOG

Berkeley, California JOSEPH L. LAKSHMANAN

PEPPER, HAMILTON & SCHEETZ

1300 19th Street, N.W.

Washington, D.C. 20036-1685

(202) 828-1200

Dated: January 10, 1992 Attorneys for Respondents

APPENDIX

Ce ea eS

§ 2012. Congressional findings

The Congress of the United States makes the following

findings concerning the development, use, and control of

atomic energy:

(a) The development, utilization, and control of atomic

energy for military and for all other purposes are vital to

the common defense and security.

(b) Repealed. Pub. L. 88-489, §1, Aug. 26, 1964, 78

Stat. 602.

and special nuclear material affect interstate and foreign

commerce and must be regulated in the national interest.

(d) The processing and utilization of source, byproduct,

and special nuclear material must be regulated in the na-

tional interest and in order to provide for the common

defense and security and to protect the health and safety

of the public.

(e) Source and special nuclear material, production fa-

cilities, and utilization facilities are affected with the public

interest, and regulation by the United States of the pro-

duction and utilization of atomic energy and of the facilities

used in connection therewith is necessary in the national

interest to assure the common defense and security and

to protect the health and safety of the public.

(f) The necessity for protection against possible inter-

state damage occurring from the operation of facilities for

the production or utilization of source or special nuclear

material places the operation of those facilities in inter-

state commerce for the purposes of this chapter.

(g) Funds of the United States may be provided for the

development and use of atomic energy under conditions

which will provide for the common defense and security

and promote the general welfare.

(h) Repealed. Pub. L. 88-489, §2, Aug. 26, 1964, 78

Stat. 602.

(i) In order to protect the public and to encourage the

development of the atomic energy industry, in the interest

of the general welfare and of the common defense and

security, the United States may make funds available for

a portion of the damages suffered by the public from nu-

clear incidents, and may limit the liability of those persons

liable for such losses.

§ 2013. Purpose of chapter

It is the purpose of this chapter to effectuate the policies

set forth above by providing for—

(a) a program of conducting, assisting, and fostering

research and development in order to encourage max-

imum scientific and industrial progress;

(b) a program for the dissemination of unclassified

scientific and technical information and for the con-

trol, dissemination, and declassification of Restricted

Data, subject to appropriate safeguards, so as to en-

courage scientific and industrial progress;

session, use, and production of atomic energy and

special nuclear material, whether owned by the Gov-

ernment or others, so directed as to make the max-

imum contribution to the common defense and security

and the national welfare, and to provide continued

assurance of the Government’s ability to enter into

and enforce agreements with nations or groups of

nations for the control of special nuclear materials

and atomic weapons;

(d) a program to encourage widespread participa-

tion in the development and utilization of atomic en-

ergy for peaceful purposes to the maximum extent

consistent with the common defense and security and

with the health and safety of the public;

(e) a program of international cooperation to pro-

mote the common defense and security and to make

available to cooperating nations the benefits of peace-

ful applications of atomic energy as widely as ex-

panding technology and considerations of the common

defense and security will permit; and

(f) a program of administration which will be con-

sistent with the foregoing policies and programs, with

international arrangements, and with agreements for

cooperation, which will enable the Congress to be cur-

rently informed so as to take further legislative action

as may be appropriate.

§ 2014. Definitions

The intent of Congress in the definitions as given in

this section should be construed from the words or phrases

used in the definitions. As used in this chapter:

(a) The term “‘agency of the United States’’ means the

executive branch of the United States, or any Government

agency, or the legislative branch of the United States, or

any agency, committee, commission, office, or other es-

tablishment in the legislative branch, or the judicial branch

of the United States, or any office, agency, committee,

commission, or other establishment in the judicial branch.

(b) The term ‘‘agreement for cooperation’? means any

agreement with another nation or regional defense orga-

nization authorized or permitted by sections 2074, 2077,

2094, 2112, 2121(c), 2133, 2134, or 2164 of this title, and

made pursuant to section 2153 of this title.

released in the course of nuclear fission or nuclear trans-

formation.

(d) The term ‘‘atomic weapon’”’ means any device utiliz-

ing atomic energy, exclusive of the means for transporting

or propelling the device (where such means is a separable

and divisible part of the device), the principal purpose of

which is for use as, or for development of, a weapon, a

weapon prototype, or a weapon test device.

(e) The term “byproduct material’’ means (1) any ra-

dioactive material (except special nuclear material) yielded

in or made radioactive by exposure to the radiation inci-

dent to the process of producing or utilizing special nuclear

material, and (2) the tailings or wastes produced by the

extraction or concentration of uranium or thorium from

any ore processed primarily for its source material content.

(f) The term ‘‘Commission”” means the Atomic Energy

Commission.

(g) The term ‘‘common defense and security’’ means the

common defense and security of the United States.

(h) The term ‘‘defense information’? means any infor-

mation in any category determined by any Government

agency authorized to classify information, as being infor-

mation respecting, relating to, or affecting the national

defense.

(i) The term ‘‘design’”’ means (1) specifications, plans,

drawings, blueprints, and other items of like nature; (2)

the information contained therein; or (3) the research and

development data pertinent to the information contained

therein.

(j) The term ‘extraordinary nuclear occurrence’’ means

any event causing a discharge or dispersal of source, spe-

cial nuclear, or byproduct material from its intended place

of confinement in amounts offsite, or causing radiation

levels offsite, which the Nuclear Regulatory Commission

or the Secretary of Energy, as appropriate, determines to

be substantial, and which the Nuclear Regulatory Com-

mission or the Secretary of Energy, as appropriate, de-

termines has resulted or will probably result in substantial

damages to persons offsite or property offsite. Any de-

termination by the Nuclear Regulatory Commission or the

oa,

Secretary of Energy, as appropriate, that such an event

has, or has not, occurred shall be final and conclusive, and

no other official or any court shall have power or juris-

diction to review any such determination. The Nuclear

Regulatory Commission or the Secretary of Energy, as

appropriate, shall establish criteria in writing setting forth

the basis upon which such determination shall be made.

As used in this subsection, “‘offsite’’ means away from

“the location’ or ‘‘the contract location” as defined in the

applicable Nuclear Regulatory Commission or the Secre-

tary of Energy, as appropriate, indemnity agreement, en-

tered into pursuant to section 2210 of this title.

(k) The term ‘financial protection” means the ability to

respond in damages for public liability and to meet the

costs of investigating and defending claims and settling

suits for such damages.

(l) The term ‘‘Government agency” means any executive

department, commission, independent establishment, cor-

poration, wholly or partly owned by the United States of

America which is an instrumentality of the United States,

or any board, bureau, division, service, office, officer, au-

thority, administration, or other establishment in the ex-

ecutive branch of the Government.

(m) The term ‘‘indemnitor’” means (1) any insurer with

respect to his obligations under a policy of insurance fur-

nished as proof of financial protection; (2) any licensee,

contractor or other person who is obligated under any

other form of financial protection, with respect to such

obligations; and (3) the Nuclear Regulatory Commission or

the Secretary of Energy, as appropriate, with respect to

any obligation undertaken by it in indemnity agreement

entered into pursuant to section 2210 of this title.

(n) The term “international arrangement’” means any

international agreement hereafter approved by the Con-

gress or any treaty during the time such agreement or

treaty is in full force and effect, but does not include any

agreement for cooperation.

(0) The term ‘Joint Committee’? means the Joint Com-

mittee on Atomic Energy.

(p) The term “‘licensed activity’’ means an activity l-

censed pursuant to this chapter and covered by the pro-

visions of section 2210(a) of this title.

(q) The term “‘nuclear incident’? means any occurrence,

including an extraordinary nuclear occurrence, within the

United States causing, within or outside the United States,

bodily injury, sickness, disease, or death, or loss of or

damage to property, or loss of use of property, arising

out of or resulting from the radioactive, toxic, explosive,

or other hazardous properties of source, special nuclear,

or byproduct material: Provided, however, That as the term

is used in section 2210(/) of this title, it shall include any

such occurrence outside the United States: And provided

further, That as the term is used in section 2210(d) of this

title, it shall include any such occurrence outside the United

States if such occurrence involves source, special nuclear,

or byproduct material owned by, and used by or under

contract with, the United States: And provided further,

That as the term is used in section 2210(c) of this title,

it shall include any such occurrence outside both the United

States and any other nation if such occurrence arises out

of or results from the radioactive, toxic, explosive, or other

hazardous properties of source, special nuclear, or by-

product material licensed pursuant to subchapters V, VI,

VII, and IX of this chapter, which is used in connection

with the operation of a licensed stationary production or

utilization facility or which moves outside the territorial

limits of the United States in transit from one person

licensed by the Nuclear Regulatory Commission to another

person licensed by the Nuclear Regulatory Commission.

(r) The term “‘operator’’ means any individual who ma-

nipulates the controls of a utilization or production facility.

(s) The term ‘‘person’’ means (1) any individual, cor-

poration, partnership, firm, association, trust, estate, pub-

lic or private institution, group, Government agency other

than the Commission, any State or any political subdivision

of, or any political entity within a State, any foreign gov-

ernment or nation or any political subdivision of any such

government or nation, or other entity; and (2) any legal

successor, representative, agent, or agency of the fore-

going.

(t) The term “‘person indemnified’”’ means (1) with re-

spect to a nuclear incident occurring within the United

States or outside the United States as the term is used

in section 2210(c) of this title, and with respect to any

nuclear incident in connection with the design, develop-

ment, construction, operation, repair, maintenance, or use

of the nuclear ship Savannah, the person with whom an

indemnity agreement is executed or who is required to

maintain financial protection, and any other person who

may be liable for public liability or (2) with respect to any

other nuclear incident occurring outside the United States,

the person with whom an indemnity agreement is executed

and any other person who may be liable for public liability

by reason of his activities under any contract with the

Secretary of Energy or any project to which indemnifi-

cation under the provisions of section 2210(d) of this title

has been extended or under any subcontract, purchase or-

der, or other agreement, of any tier, under any such con-

tract or project.

(u) The term “‘produce’’, when used in relation to special

nuclear material, means (1) to manufacture, make, pro-

duce, or refine special nuclear material; (2) to separate

special nuclear material from other substances in which

such material may be contained; or (3) to make or to

produce new special nuclear material.

(v) The term “production facility’”’ means (1) any equip-

ment or device determined by rule of the Commission to

be capable of the production of special nuclear material in

such quantity as to be of significance to the common de-

fense and security, or in such manner as to affect the

health and safety of the public; or (2) any important com-

ponent part especially designed for such equipment or de-

vice as determined by the Commission.

(w) The term “public liability’’*means any legal liability

arising out of or resulting from a nuclear incident or pre-

cautionary 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 a precautionary evacuation), except: (i) claims under

State or Federal workmen’s compensation acts of employ-

ees of persons indemnified who are employed at the site

of and in connection with the activity where the nuclear

incident occurs; (ii) claims arising out of an act of war;

and (iii) whenever used in subsections (a), (c), and (k) of

section 2210 of this title, claims for loss of, or damage

to, or loss of use of property which is located at the site

of and used in connection with the licensed activity where

the nuclear incident occurs. ‘Public liability” also includes

damage to property of persons indemnified: Provided, That

such property is covered under the terms of the financial

protection required, except property which is located at

the site of and used in connection with the activity where

the nuclear incident occurs.

(x) The term “‘research and development” means (1) the-

oretical analysis, exploration, or experimentation; or (2) the

extension of investigative findings and theories of a sci-

entific or technical nature into practical application for

experimental and demonstration purposes, including the

experimental production and testing of models, devices,

equipment, materials, and processes.

(y) The term ‘Restricted Data’’ means all data con-

cerning (1) design, manufacture, or utilization of atomic

weapons; (2) the production of special nuclear material; or

(3) the use of special nuclear material in the production

of energy, but shall not include data declassified or re-

moved from the Restricted Data category pursuant to sec-

tion 2162 of this title.

(z) The term ‘“‘source material’’ means (1) uranium, thor-

ium, or any other material which is determined by the

Commission pursuant to the provisions of section 2091 of

this title to be source material; or (2) ores containing one

or more of the foregoing materials, in such concentration

as the Commission may by regulation determine from time

to time.

(aa) The term ‘‘special nuclear material*Nmeans (1) plu-

tonium, uranium enriched in the isotope 233 or in the

isotope 235, and any other material which the Commission,

pursuant to the provisions of section 2071 of this title,

determines to be special nuclear material, but does not

include source material; or (2) any material artificially en-

riched by any of the foregoing, but does not include source

material.

(bb) The term ‘‘United States’’ when used in a geo-

graphical sense includes all territories and possessions of

the United States, the Canal Zone and Puerto Rico.

(cc) The term ‘‘utilization facility’’ means (1) any equip-

ment or device, except an atomic weapon, determined by

rule of the Commission to be capable of making use of

special nuclear material in such quantity as to be of sig-

nificance to the common defense and security, or in such

manner as to affect the health and safety of the public,

or peculiarly adapted for making use of atomic energy in

such quantity as to be of significance to the common de-

fense and security, or in such manner as to affect the

health and safety of the public; or (2) any important com-

ponent part especially designed for such equipment or de-

vice as determined by the Commission.

10a

(dd) The terms ‘high-level radioactive waste’’ and “‘spent

nuclear fuel’? have the meanings given such terms in sec-

tion 10101 of this title.

(ee) The term “‘transuranic waste’’ means material con-

taminated with elements that have an atomic number

greater than 92, including neptunium, plutonium, ameri-

cium, and curium, and that are in concentrations greater

than 10 nanocuries per gram, or in such other concentra-

tions as the Nuclear Regulatory Commission may prescribe

to protect the public health and safety.

(ff) The term ‘‘nuclear waste activities’, as used in sec-

tion 2210 of this title, means activities subject to an agree-

ment of indemnification under subsection (d) of such

section, that the Secretary of Energy is authorized to un-

dertake, under this chapter or any other law, involving

the storage, handling, transportation, treatment, or dis-

posal of, or research and development on, spent nuclear

fuel, high-level radioactive waste, or transuranic waste,

including (but not limited to) activities authorized to be

carried out under the Waste Isolation Pilot Project under

section 213 of Public Law 96-164 (93 Stat. 1265).

(gg) The term ‘“‘precautionary evacuation’”’ means an

evacuation of the public within a specified area near a

nuclear facility, or the transportation route in the case of

an accident involving transportation of source material,

special nuclear material, byproduct material, high-level ra-

dioactive waste, spent nuclear fuel, or transuranic waste

to or from a production or utilization facility, if the evac-

uation is—

(1) the result of any event that is not classified as

a nuclear incident but that poses imminent danger of

bodily injury or property damage from the radiological

properties of source material, special nuclear material,

byproduct material, high-level radioactive waste, spent

nuclear fuel, or transuranic waste, and causes an evac-

uation; and

lla

(2) initiated by an official of a State or a political

subdivision of a State, who is authorized by State law

to initiate such an evacuation and who reasonably

determined that such an evacuation was necessary to

protect the public health and safety.

(hh) The term “‘public liability action’’, as used in section

2210 of this title, means any suit asserting public liability.

A public liability action shall be deemed to be an action

arising under section 2210 of this title, and the substantive

rules for decision in such action shall be derived from the

law of the State in which the nuclear incident involved

occurs, unless such law is inconsistent with the provisions

of such section.

(jj) | LEGAL Costs.—As used in section 2210 of this title,

the term “legal costs’ means the costs incurred by a

plaintiff or a defendant in initiating, prosecuting, inves-

tigating, settling, or defending claims or suits for damage

arising under such section.

§ 2210. Indemnification and limitation of liability

(a) Requirement of financial protection for licensees

Each license issued under section 2133 or 2134 of this

title and each construction permit issued under section

2235 of this title shall, and each license issued under sec-

tion 2073, 2093, or 2111 of this title may, for the public

purposes cited in section 2012(i) of this title, have as a

condition of the license a requirement that the licensee

have and maintain financial protection of such type and

in such amounts as the Nuclear Regulatory Commission

(in this section referred to as the ‘‘Commission’’) in the

exercise of its licensing and regulatory authority and re-

sponsibility shall require in accordance with subsection (b)

of this section to cover public liability claims. Whenever

such financial protection is required, it may be a further

‘So in original. There is no subsec. (ii).

12a

condition of the license that the licensee execute and main-

tain an indemnification agreement in accordance with sub-

section (c) of this section. The Commission may require,

as a further condition of issuing a license, that an applicant

waive any immunity from public liability conferred by Fed-

eral or State law.

(b) Amount and type of financial protection for licen-

sees

(1) The amount of primary financial protection required

shall be the amount of liability insurance available from

private sources, except that the Commission may establish

a lesser amount on the basis of criteria set forth in writing,

which it may revise from time to time, taking into con-

sideration such factors as the following: (A) the cost and

terms of private insurance, (B) the type, size, and location

of the licensed activity and other factors pertaining to the

hazard, and (C) the nature and purpose of the licensed

activity: Provided, That for facilities designed for produc-

ing substantial amounts of electricity and having a rated

capacity of 100,000 electrical kilowatts or more, the amount

of primary financial protection required shall be the max-

imum amount available at reasonable cost and on reason-

able terms from private sources (excluding the amount of

private liability insurance available under the industry ret-

rospective rating plan required in this subsection). Such

primary financial protection may include private insurance,

private contractual indemnities, self-insurance, other proof

of financial responsibility, or a combination of such meas-

ures and shall be subject to such terms and conditions as

the Commission may, by rule, regulation, or order, pre-

scribe. The Commission shall require licensees that are

required to have and maintain primary financial protection

equa] to the maximum amount of liability insurance avail-

able from private sources to maintain, in addition to such

primary financial protection, private liability insurance

available under an industry retrospective rating plan pro-

viding jor premium charges deferred in whole or major

13a

part until public liability from a nuclear incident exceeds

or appears likely to exceed the level of the primary fi-

nancial protection required of the licensee involved in the

nuclear incident: Provided, That such insurance is available

to, and required of, all of the licensees of such facilities

without regard to the manner in which they obtain other

types or amounts of such primary financial protection: And

provided further, That the maximum amount of the stand-

ard deferred premium that may be charged a licensee fol-

lowing any nuclear incident under such a plan shall not

be more than $63,000,000 (subject to adjustment for in-

flation under subsection (t) of this section), but not more

than $10,000,000 in any 1 year, for each facility for which

such licensee is required to maintain the maximum amount

of primary financial protection: And provided further, That

the amount which may be charged a licensee following any

nuclear incident shall not exceed the licensee’s pro rata

share of the aggregate public liability claims and costs

(excluding legal costs subject to subsection (01D) of this

section, payment of which has not been authorized under

such subsection) arising out of the nuclear incident. Pay-

ment of any State premium taxes which may be applicable

to any deferred premium provided for in this chapter shall

be the responsibility of the licensee and shall not be in-

cluded in the retrospective premium established by the

Commission.

(24A) The Commission may, on a case by case basis,

assess annual deferred premium amounts less than the

standard annual deferred premium amount assessed under

paragraph (1)—

(i) for any facility, if more than one nuclear incident

occurs in any one calendar year; or

(ii) for any licensee licensed to operate more than

one facility, if the Commission determines that the

financial impact of assessing the standard annual de-

ferred premium amount under paragraph (1) would

l4a

result in undue financial hardship to such licensee or

the ratepayers of such licensee.

(B) In the event that the Commission assesses a lesser

annual deferred premium amount under subparagraph (A),

the Commission shall require payment of the difference

between the standard annual deferred premium assessment

under paragraph (1) and any such lesser annual deferred

premium assessment within a reasonable period of time,

with interest at a rate determined by the Secretary of the

Treasury on the basis of the current average market yield

on outstanding marketable obligations of the United States

of comparable maturities during the month preceding the

date that the standard annual deferred premium assess-

ment under paragraph (1) would become due.

(3) The Commission shall establish such requirements as

are necessary to assure availability of funds to meet any

assessment of deferred premiums within a reasonable time

when due, and may provide reinsurance or shall otherwise

guarantee the payment of such premiums in the event it

appears that the amount of such premiums will not be

available on a timely basis through the resources of private

industry and insurance. Any agreement by the Commission

with a licensee or indemnitor to guarantee the payment

of deferred premiums may contain such terms as the Com-

mission deems appropriate to carry out the purposes of

this section and to assure reimbursement to the Commis-

sion for its payments made due to the failure of such

licensee or indemnitor to meet any of its obligations arising

under or in connection with financial protection required

under this subsection including without limitation terms

creating liens upon the licensed facility and the revenues

derived therefrom or any other property or revenues of

such licensee to secure such reimbursement and consent

to the automatic revocation of any license.

(4A) In the event that the funds available to pay valid

claims in any year are insufficient as a result of the lim-

15a

itation on the amount of deferred premiums that may be

required of a licensee in any year under paragraph (1) or

(2), or the Commission is required to make reinsurance or

guaranteed payments under paragraph (3), the Commission

shall, in order to advance the necessary funds—

(i) request the Congress to appropriate sufficient

funds to satisfy such payments; or

(ii) to the extent approved in appropriation Acts,

issue to the Secretary of the Treasury obligations in

such forms and denominations, bearing such maturi-

ties, and subject to such terms and conditions as may

be agreed to by the Commission and the Secretary

of the Treasury.

(B) Except for funds appropriated for purposes of mak-

ing reinsurance or guaranteed payments under paragraph

(3), any funds appropriated under subparagraph (A\i) shall

be repaid to the general fund of the United States Treas-

ury from amounts made available by standard deferred

premium assessments, with interest at a rate determined

by the Secretary of the Treasury on the basis of the cur-

rent average market yield on outstanding marketable ob-

ligations of the United States of comparable maturities

during the month preceding the date that the funds ap-

propriated under such subparagraph are made available.

ing reinsurance or guaranteed payments under paragraph

(3), redemption of obligations issued under subparagraph

(A\ii) shall be made by the Commission from amounts

made available by standard deferred premium assessments.

Such obligations shall bear interest at a rate determined

by the Secretary of the Treasury by taking into consid-

eration the average market yield on outstanding market-

able obligations to the United States of comparable

maturities during the month preceding the issuance of the

obligations under this paragraph. The Secretary of the

Treasury shall purchase any issued obligations, and for

16a

such purpose the Secretary of the Treasury may use as a

public debt transaction the proceeds from the sale of any

securities issued under chapter 31 of title 31, and the

purposes for which securities may be issued under such

chapter are extended to include any purchase of such ob-

ligations. The Secretary of the Treasury may at any time

sell any of the obligations acquired by the Secretary of

the Treasury under this paragraph. All redemptions, pur-

chases, and sales by the Secretary of the Treasury of

obligations under this paragraph shall be treated as public

debt transactions of the United States.

Commission

The Commission shall, with respect to licenses issued

between August 30, 1954, and August 1, 2002, for which

it requires financial protection of less than $560,000,000,

agree to indemnify and hold harmless the licensee and

other persons indemnified, as their interest may appear,

from public liability arising from nuclear incidents which

is in excess of the level of financial protection required of

the licensee. The aggregate indemnity for all persons in-

demnified in connection with each nuclear incident shall

not exceed $500,000,000 excluding costs of investigating

and and settling claims and defending suits for damage:

Provided, however, That this amount of indemnity shall be

reduced by the amount that the financial protection re-

quired shall exceed $60,000,000. Such a contract of in-

demnification shall cover public liability arising out of or

in connection with the licensed activity. With respect to

any production or utilization facility for which a construc-

tion permit is issued between August 30, 1954, and

August 1, 2002, the requirements of this subsection shall

apply to any license issued for such facility subsequent to

August 1, 2002.

17a

(d) Indemnification of contractors by Department of En-

ergy

(1XA) In addition to any other authority the Secretary

of Energy (in this section referred to as the ‘‘Secretary’’)

may have, the Secretary shall, until August 1, 2002, enter

into agreements of indemnification under this subsection

with any person who may conduct activities under a con-

tract with the Department of Energy that involve the risk

of public liability and that are not subject to financial

protection requirements under subsection (b) of this section

or agreements of indemnification under subsection (c) or

(k) of this section.

(BXiXl) Beginning 60 days after August 20, 1988, agree-

ments of indemnification under subparagraph (A) shall be

the exclusive means of indemnification for public liability

arising from activities described in such subparagraph, in-

cluding activities conducted under a contract that contains

an indemnification clause under Public Law 85-804 [50

U.S.C. 1481 et seq.] entered into between August 1, 1987,

and August 20, 1988.

(Il) The Secretary may incorporate in agreements of

indemnification under subparagraph (A) the provisions re-

lating to the waiver of any issue or defense as to charitable

or governmental immunity authorized in subsection (n\1)

of this section to be incorporated in agreements of indem-

nification. Any such provisions incorporated under this sub-

clause shall apply to any nuclear incident arising out of

nuclear waste activities subject to an agreement of indem-

nification under subparagraph (A).

(ii) Public liability arising out of nuclear waste activities

subject to an agreement of indemnification under subpar-

agraph (A) that are funded by the Nuclear Waste Fund

established in section 10222 of this title shall be compen-

sated from the Nuclear Waste Fund in an amount not to

exceed the maximum amount of financial protection re-

quired of licensees under subsection (b) of this section.

18a

(2) In agreements of indemnification entered into under

paragraph (1), the Secretary may require the contractor

to provide and maintain financial protection of such a type

and in such amounts as the Secretary shall determine to

be appropriate to cover public liability arising out of or in

connection with the contractual activity, and shall indem-

nify the persons indemnified against such claims above the

amount of the financial protection required, to the full

extent of the aggregate public liability of the persons in-

demnified for each nuclear incident, including such legal

costs of the contractor as are approved by the Secretary.

(3A) Notwithstanding paragraph (2), if the maximum

amount of financial protection required of licensees under

subsection (b) of this section is increased by the Commis-

sion, the amount of indemnity, together with any financial

protection required of the contractor, shall at all times

remain equal to or greater than the maximum amount of

financial protection required of licensees under subsection

(b) of this section.

(B) The amount of indemnity provided contractors under

this subsection shall not, at any time, be reduced in the

event that the maximum amount of financial protection

required of licensees is reduced.

Department of Energy (or its predecessor agencies) may

be required to indemnify any person, shall be deemed to

be amended, on August 20, 1988, to reflect the amount of

indemnity for public liability and any applicable financial

protection required of the contractor under this subsectic:

on August 20, 1988.

(4) Financial protection under paragraph (2) and indem-

nification under paragraph (1) shall be the exclusive means

of financial protection and indemnification under this sec-

tion for any Department of Energy demonstration reactor

licensed by the Commission under section 5842 of this title.

19a

(5) In the case of nuclear incidents occurring outside

the United States, the amount of the indemnity provided

by the Secretary under this subsection shall not exceed

$100,000,000.

(6) The provisions of this subsection may be applicable

to lump sum as well as cost type contracts and to contracts

and projects financed in whole or in part by the Secretary.

(7) A contractor with whom an agreement of indemni-

fication has been executed under paragraph (1A) and who

is engaged in activities connected with the underground

detonation of a nuclear explosive device shall be liable, to

the extent so indemnified under this subsection, for inju-

ries or damage sustained as a result of such detonation

in the same manner and to the same extent as would a

private person acting as principal, and no immunity or

defense founded in the Federal, State, or municipal char-

acter of the contractor or of the work to be performed

under the contract shall be effective to bar such liability.

(e) Limitation on aggregate public liability

(1) The aggregate public liability for a single nuclear

incident of persons indemnified, including such legal costs

as are authorized to be paid under subsection (01\D) of

this section, shall not exceed—

(A) in the case of facilities designed for producing

substantial amounts of electricity and having a rated

capacity of 100,000 electrical kilowatts or more, the

maximum amount of financial protection required of

such facilities under subsection (b) of this section (plus

any surcharge assessed under subsection (oX1\E) of

this section);

(B) in the case of contractors with whom the Sec-

retary has entered into an agreement of indemnifi-

cation under subsection (d) of this section, the

maximum amount of financial protection required un-

der subsection (b) of this section or the amount of

20a

indemnity and financial protection that may be re-

quired under paragraph (8) of subsection (d) of this

section, whichever amount is more; and

mission required to maintain financial protection un-

der this section—

(i) $500,000,000, together with the amount of fi-

nancial protection required of the licensee; or

(ii) if the amount of financial protection required

of the licensee exceeds $60,000,000, $560,000,000

or the amount of financial protection required of

the licensee, whichever amount is more.

(2) In the event of a nuclear incident involving damages

in excess of the amount of aggregate public liability under

paragraph (1), the Congress will thoroughly review the

particular incident in accordance with the procedures set

forth in subsection (i) of this section and will in accordance

with such procedures, take whatever action is determined

to be necessary (including approval of appropriate com-

pensation plans and appropriation of funds) to provide full

and prompt compensation to the public for all public lia-

bility claims resulting from a disaster of such magnitude.

(3) No provision of paragraph (1) may be construed to

preclude the Congress from enacting a revenue measure,

applicable to licensees of the Commission required to main-

tain financial protection pursuant to subsection (b) of this

section, to fund any action undertaken pursuant to para-

graph (2).

(4) With respect to any nuclear incident occurring out-

side of the United States to which an agreement of in-

demnification entered into under the provisions of

subsection (d) of this section is applicable, such aggregate

public liability shall not exceed the amount of $100,000,000,

together with the amount of financial protection required

of the contractor.

2la

(f) Collection of fees by Nuclear Regulatory Commission

The Commission or the Secretary, as appropriate, is

authorized to collect a fee from all persons with whom an

indemnification agreement is executed under this section.

This fee shall be $30 per year per thousand kilowatts of

thermal energy capacity for facilities licensed under section

2133 of this title: Provided, That the Commission or the

Secretary, aS appropriate, is authorized to reduce the fee

for such facilities in reasonable relation to increases in

financial protection required above a level of $60,000,000.

For facilities licensed under section 2134 of this title, and

for construction permits under section 2235 of this title,

the Commission is authorized to reduce the fee set forth

above. The Commission shall establish criteria in writing

for determination of the fee for facilities licensed under

section 2134 of this title, taking into consideration such

factors as (1) the type, size, and location of facility in-

volved, and other factors pertaining to the hazard, and (2)

the nature and purpose of the facility. For other licenses,

the Commission shall collect such nominal fees as it deems

appropriate. No fee under this subsection shall be less than

$100 per year.

(g) Use of services of private insurers

In administering the provisions of this section, the Com-

mission or the Secretary, as appropriate, shall use, to the

maximum extent practicable, the facilities and services of

private insurance organizations, and the Commission or the

Secretary, aS appropriate, may contract to pay a reason-

able compensation for such services. Any contract made

under the provisions of this subsection may be made with-

out regard to the provisions of section 5 of title 41 upon

a showing by the Commission or the Secretary, as appro-

priate, that advertising is not reasonably practicable and

advance payments may be made.

22a

(h) Conditions of agreements of indemnification

The agreement of indemnification may contain such

terms as the Commission or the Secretary, as appropriate,

deems appropriate to carry out the purposes of this sec-

tion. Such agreement shall provide that, when the Com-

mission or the Secretary, as appropriate, makes a

determination that the United States will probably be re-

quired to make indemnity payments under this section, the

Commission or the Secretary, as appropriate, shall collab-

orate with any person indemnified and may approve the

payment of any claim under the agreement of indemnifi-

cation, appear through the Attorney General on behalf of

the person indemnified, take charge of such action, and

settle or defend any such action. The Commission or the

Secretary, as appropriate, shall have final authority on

behalf of the United States to settle or approve the set-

tlement of any such claim on a fair and reasonable basis

with due regard for the purposes of this chapter. Such

settlement shall not include expenses in connection with

the claim incurred by the person indemnified.

(i) Compensation plans

(1) After any nuclear incident involving damages that

are likely to exceed the applicable amount of aggregate

public liability under subparagraph (A), (B), or (C) of sub-

section (eX1) of this section, the Secretary or the Com-

misison,’ as appropriate, shall—

(A) make a survey of the causes and extent of dam-

age; and

(B) expeditiously submit a report setting forth the

results of such survey to the Congress, to the Rep-

resentatives of the affected districts, to the Senators

of the affected States, and (except for information

that will cause serious damage to the national defense

’ So in original. Probably should be ‘“‘Commission,”’.

23a

of the United States) to the public, to the parties

involved, and to the courts.

(2) Not later than 90 days after any determination by

a court, pursuant to subsection (0) of this section, that the

public liability from a single nuclear incident may exceed

the applicable amount of aggregate public liability under

subparagraph (A), (B), or (C) of subsection (eX1) of this

section the President shall submit to the Congress—

(A) an estimate of the aggregate dollar value of

personal injuries and property damage that arises from

the nuclear incident and exceeds the amount of ag-

gregate public liability under subsection (e\1) of this

section;

(B) recommendations for additional sources of funds

to pay claims exceeding the applicable amount of ag-

gregate public liability under subparagraph (A), (B),

or (C) of subsection (eX1) of this section, which rec-

ommendations shall consider a broad range of possible

sources of funds (including possible revenue measures

on the sector of the economy, or on any other class,

to which such revenue measures might be applied);

dividually or collectively shall provide for full and

prompt compensation for all valid claims and contain

a recommendation or recommendations as to the relief

to be provided, including any recommendations that

funds be allocated or set aside for the payment of

claims that may arise as a result of latent injuries

that may not be discovered until a later date; and

(D) any additional legislative authorities necessary

to implement such compensation plan or plans.

(3XA) Any compensation plan transmitted to tne Con-

gress pursuant to paragraph (2) shall bear an identification

number and shall be transmitted to both Houses of Con-

24a

gress on the same day and to each House while it is in

session.

(B) The provisions of paragraphs (4) through (6) shall

apply with respect to consideration in the Senate of any

compensation plan transmitted to the Senate pursuant to

paragraph (2).

(4) No such compensation plan may be considered ap-

proved for purposes of subsection (eX2) of this section

unless between the date of transmittal and the end of the

first period of sixty calendar days of continuous session

of Congress after the date on which such action is trans-

mitted to the Senate, the Senate passes a resolution de-

scribed in paragraph 6‘ of this subsection.

(5) For the purpose of paragraph (4) of this subsection—

(A) continuity of session is broken only by an ad-

journment of Congress sine die; and

(B) the days on which either House is not in session

because of an adjournment of more than three days

to a day certain are excluded in the computation of

the sixty-day calendar period.

(6A) This paragraph is enacted—

(i)as an exercise of the rulemaking power of the

Senate and as such it is deemed a part of the rules

of the Senate, but applicable only with respect to the

procedure to be followed in the Senate in the case of

resolutions described by subparagraph (B) and _ it

supersedes other rules only to the extent that it is

inconsistent therewith; and

(ii) with full recognition of the constitutional right

of the Senate to change the rules at any time, in the

* So in original. Probably should be ‘‘(6)’’.

25a

same manner and to the same extent as in the case

of any other rule of the Senate.

(B) For purposes of this paragraph, the term ‘‘resolu-

tion’”’ means only a joint resolution of the Congress the

matter after the resolving clause of which is as follows:

“That the approves the compensation plan num-

bered __ submitted to the Congress on___., 19__.”’,

the first blank space therein being filled with the name

of the resolving House and the other blank spaces being

appropriately filled; but does not include a resolution which

specifies more than one compensation plan.

pensation plan shall immediately be referred to a com-

mittee (and all resolutions with respect to the same

compensation plan shall be referred to the same commit-

tee) by the President of the Senate.

(D\i) If the committee of the Senate to which a reso-

lution with respect to a compensation plan has been re-

ferred has not reported it at the end of twenty calendar

days after its referral, it shall be in order to move either

to discharge the committee from further consideration of

such resolution or to discharge the committee from further

consideration with respect to such compensation plan which

has been referred to the committee.

(ii) A motion to discharge may be made only by an in-

dividual favoring the resolution, shall be highly privileged

(except that it may not be made after the committee has

reported a resolution with respect to the same compen-

sation plan), and debate thereon shall be limited to not

more than one hour, to be divided equally between those

favoring and those opposing the resolution. An amendment

to the motion shall not be in order, and it shall not be in

order to move to reconsider the vote by which the motion

was agreed to or disagreed to.

(ili) If the motion to discharge is agreed to or disagreed

to, the motion may not be renewed, nor may another

26a

motion to discharge the committee be made with respect

to any other resolution with respect to the same compen-

sation plan.

(E\i) When the committee has reported, or has been

aischarged from further consideration of, a resolution, it

shall be at any time thereafter in order (even though a

previous motion to the same effect has been disagreed to)

to move to proceed to the consideration of the resolution.

The motion shall be highly privileged and shall not be

debatable. An amendment to the motion shall not be in

order, and it shall not be in order to move to reconsider

the vote by which the motion was agreed to or disagreed

to.

(ii) Debate on the resolution referred to in clause (i) of

this subparagraph shall be limited to not more than ten

hours, which shall be divided equally between those fa-

voring and those opposing such resolution. A motion fur-

ther to limit debate shall not be debatable. An amendment

to, or motion to recommit, the resolution shall not be in

order, and it shall not be in order to move to reconsider

the vote by which such resolution was agreed to or dis-

agreed to.

(Fi) Motions to postpone, made with respect to the

discharge from committee, or the consideration of a res-

olution or motions to proceed to the consideration of other

business, shall be decided without debate.

(ii) Appeals from the decision of the Chair relating to

the application of the rules of the Senate to the procedures

relating to a resolution shall be decided without debate.

(j) Contracts in advance of appropriations

In administering the provisions of this section, the Com-

mission or the Secretary, as appropriate, may make con-

tracts in advance of appropriations and incur obligations

without regard to sections 1341, 1842, 1349, 1350, and

1351, and subchapter II of chapter 15, of title 31.

27a

(k) Exemption from financial protection requirement for

nonprofit educational institutions

With respect to any license issued pursuant to section

2073, 2098, 2111, 2134(a), or 2134(c) of this title, for the

conduct of educational activities to a person found by the

Commission to be a nonprofit educational institution, the

Commission shall exempt such licensee from the financial

protection requirement of subsection (a) of this section.

With respect to licenses issued between August 30, 1954,

and August 1, 2002, for which the Commission grants such

exemption:

(1) the Commission shall agree to indemnify and

hold harmless the licensee and other persons indem-

nified, as their interests may appear, from public li-

ability in excess of $250,000 arising from nuclear

incidents. The aggregate indemnity for all persons in-

demnified in connection with each nuclear incident

shall not exceed $500,000,000, including such legal

costs of the licensee as are approved by the Com-

mission;

(2) such contracts of indemnification shall cover

public liability arising out of or in connection with the

licensed activity; and shall include damage to property

of persons indemnified, except property which is lo-

cated at the site of and used in connection with the

activity where the nuclear incident occurs; and

(3) such contracts of indemnification, when entered

into with a licensee having immunity from public li-

ability because it is a State agency, shall provide also

that the Commission shall make payments under the

contract on account of activities of the licensee in the

same manner and to the same extent as the Com-

mission would be required to do if the licensee were

not such a State agency.

Any licensee may waive an exemption to which it is en-

titled under this subsection. With respect to any production

28a

or utilization facility for which a construction permit is

issued between August 30, 1954, and August 1, 2002, the

requirements of this subsection shall apply to any license

issued for such facility subsequent to August 1, 2002.

(1) Presidential commission on catastrophic nuclear ac-

cidents

(1) Not later than 90 days after August 20, 1988, the

President shall establish a commission (in this subsection

referred to as the ‘“‘study commission’’) in accordance with

the Federal Advisory Committee Act (5 U.S.C. App.) to

study means of fully compensating victims of a cata-

strophic nuclear accident that exceeds the amount of ag-

gregate public liability under subsection (eX1) of this

section.

(24A) The study commission shall consist of not less

than 7 and not more than 11 members, who—

(i) shall be avpointed by the President; and

(ii) shall be representative of a broad range of views

and interests.

(B) The members of the study commission shall be ap-

pointed in a manner that ensures that not more than a

mere majority of the members are of the same political

party. |

office until the termination of the study commission, but

may be removed by the President for inefficiency, neglect

of duty, or malfeasance in office. A

(D) Any vacancy in the study commission shall be filled

in the manner in which the original appointment was made.

(E) The President shall designate one of the members

of the study commission as chairperson, to serve at the

pleasure of the President.

(3) The study commission shall conduct a comprehensive

study of appropriate means of fully compensating victims

2Q9

of a catastrophic nuclear accident that exceeds the amount

of aggregate. public liability under subsection (e)(1) of this

section, and shall submit to the Congress a final report

setting forth—

(A) recommendations for any changes in the laws

and rules governing the liability or civil procedures

that are necessary for the equitable, prompt, and ef-

ficient resolution and payment of all valid damage

claims, including the advisability of adjudicating public

liability claims through an administrative agency in-

stead of the judicial system;

(B) recommendations for any standards or proce

dures that are necessary to establish priorities for the

hearing, resolution, and payment of claims when

awards are likely to exceed the amount of funds avail-

able within a specific time period; and

procedures necessary to decide and pay claims for

latent injuries caused by the nuclear incident.

(4A) The chairperson of the study commission may ap-

point and fix the compensation of a staff of such persons

as may be necessary to discharge the responsibilities of

the study commission, subject to the applicable provisions

of the Federal Advisory Committee Act (5 U.S.C. App.)

and title 5.

(B) To the extent permitted by law and requested by

the chairperson of the study commission, the Administra-

tor of General Services shall provide the study commission

with necessary administrative services, facilities, and sup-

port on a reimbursable basis.

Human Services, and the Director of the Federal Emer-

gency Management Agency shall, to the extent permitted

by law and subject to the availability of funds, provide the

study commission with such facilities, support, funds and

30a

services, including staff, as may be necessary for the ef-

fective performance of the functions of the study com-

mission.

(D) The study commission may request any Executive

agency to furnish such information, advice, or assistance

as it determines to be necessary to carry out its functions.

Each such agency is directed, to the extent permitted by

law, to furnish such information, advice or assistance upon

request by the chairperson of the study commission.

(E) Each member of the study commission may receive

compensation at the maximum rate prescribed by the Fed-

eral Advisory Committee Act (5 U.S.C. App.) for each day

such member is engaged in the work of the study com-

mission. Each member may also receive travel expenses,

including per diem in lieu of subsistence under sections

5702 and 5703 of title 5.

(F) The functions of the President under the Federal |

Advisory Committee Act (5 U.S.C. App.) that are appli-

cable to the study commission, except the function of re-

porting annually to the Congress, shall be performed by

the Administrator of General Services.

(5) The final report required in paragraph (3) shall be

submitted to the Congress not later than the expiration

of the 2-year period beginning on August 20, 1988.

(6) The study commission shall terminate upon the ex-

piration of the 2-month period beginning on the date on

which the final report required in paragraph (3) is sub-

mitted.

(m) Coordinated procedures for prompt settlement of

claims and emergency assistance

The Commission or the Secretary, as appropriate, is

authorized to enter into agreements with other indemnitors

to establish coordinated rocedures for the prompt han-

dling, investigation, and settlement of claims for public

sla

liability. The Commission or the Secretary, as appropriate,

and other indemnitors may make payments to, or for the

aid of, claimants for the purpose of providing immediate

assistance following a nuclear incident. Any funds appro-

priated to the Commission or the Secretary, as appropri-

ate, shall be available for such payments. Such payments

may be made without securing releases, shall not consti-

tute an admission of the liability of any person indemnified

or of any indemnitor, and shall operate as a satisfaction

to the extent thereof of any final settlement or judgment.

(n) Waiver of defenses and judicial procedures

(1) With respect to any extraordinary nuclear occur

rence to which an insurance policy or contract furnished

as proof of financial protection or an indemnity agreement

applies and which—

(A) arises out of or results from or occurs in the

course of the construction, possession, or operation of

a production or utilization facility,

(B) arises out of or results from or occurs in the

course of transportation of source material, byproduct

material, or special nuclear material to or from a pro-

duction or utilization facility,

out of or results from the possession, operation, or

use by a Department of Energy contractor or sub-

contractor of a device utilizing special nuclear material

or byproduct material,

(D) arises out of, results from, or occurs in the

course of, the construction, possession, or operation

of any facility licensed under section 2073, 2093, or

2111 of this title, for which the Commission has im-

posed as a condition of the license a requirement that

the licensee have and maintain financial protection

under subsection (a) of this section,

32a

(E) arises out of, results from, or occurs in the

course of, transportation of source material, byproduct

material, or special nuclear material to or from any

facility licensed under section 2073, 2093, or 2111 of

this title, for which the Commission has imposed as

a condition of the license a requirement that the li-

censee have and maintain financial protection under

subsection (a) of this section, or

(F) arises out of, results from, or occurs in the

course of nuclear waste activities.

the Commission or the Secretary, as appropriate, may in-

corporate provisions in indemnity agreements with licen-

sees and contractors under this section, and may require

provisions to be incorporated in insurance policies or con-

tracts furnished as proof of financial protection, which

waive (i) any issue or defense as to conduct of the c.aimant

or fault of persons indemnified, (ii) any issue or defense

as to charitable or governmental immunity, and (iii) any

issue or defense based on any statute of limitations if suit

is instituted within three 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. When so incorporated, such waivers shall be ju-

dicially enforcible in accordance with their terms by the

claimant against the person indemnified. Such waivers shall

not preclude a defense based upon a failure to take rea-

sonable steps to mitigate damages, nor shall such waivers

apply to injury or damage to a claimant or to a claimant’s

property which is intentionally sustained by the claimant

or which results from a nuclear incident intentionally and

wrongfully caused by the claimant. The waivers authorized

in this subsection shall, as to indemnitors, be effective only

with respect to those obligations set forth in the insurance

33a

policies or the contracts furnished as proof of financial

protection and in the indemnity agreements. Such waivers

shall not apply to, or prejudice the prosecution or defense

of, any claim or portion of claim which is not within the

protection afforded under (i) the terms of insurance policies

or contracts furnished as proof of financial protection, or

indemnity agreements, and (il) the limit of liability pro-

visions of subsection (e) of this section.

(2) With respect to any public liability action arising out

of or resulting from a nuclear incident, the United States

district court in the district where the nuclear incident

takes place, or in the case of a nuclear incident taking

place outside the United States, the United States District

Court for the District of Columbia, shall have original ju-

risdiction without regard to the citizenship of any party

or the amount in controversy. Upon motion of the

defendant or of the Commission or the Secretary, as ap-

propriate, any such action pending in any State court (in-

cluding any such action pending on August 20, 1988) or

United States district court shall be removed or trans-

ferred to the United States district court having venue

under this subsection. Process of such district court shall

be effective throughout the United States. In any action

that is or becomes removable pursuant to this paragraph,

a petition for removal shall be filed within the period pro-

vided in section 1446 of title 28 or within the 30-day period

beginning on August 20, 1988, whichever occurs later.

(3A) Following any nuclear incident, the chief judge of

the United States district court having jurisdiction under

paragraph (2) with respect to public liability actions (or

the judicial council of the judicial circuit in which the nu-

clear incident occurs) may appoint a special caseload man-

agement panel (in this paragraph referred to as the

‘management panel’’) to coordinate and assign (but not

necessarily hear themselves) cases arising out of the nu-

clear incident, if—

34a

(i) a court, acting pursuant to subsection (0) of this

section, determines that the aggregate amount of pub-

lic liability is likely to exceed the amount of primary

financial protection available under subsection (b) of

this section (or an equivalent amount in the case of

a coitractor indemnified under subsection (d) of this

section); or

(ii) the chief judge of the United States district court

(or the judicial council of the judicial circuit) deter-

mines that cases arising out of the nuclear incident

will have an unusual impact on the work of the court.

(BXi) Each management panel shall consist only of mem-

bers who are United States district judges or circuit judges.

(ii) Members of a management panel may include any

United States district judge or circuit judge of another

district court or court of appeals, if the chief judge of such

other district court or court of appeals consents to such

assignment.

(i) to consolidate related or similar claims for hear-

ing or trial;

(ii) to establish priorities for the handling of differ-

ent classes of cases;

(ili) to assign cases to a particular judge or special

master;

(iv) to appoint special masters to hear particular

types of cases, or particular elements or procedural

steps of cases;

(v) to promulgate special rules of court, not incon-

sistent with the Federal Rules of Civil Procedure, to

expedite cases or allow more equitable consideration

of claims;

we)

eb)

(vi) to implement such other measures, consistent

with existing law and the Federal Rules of Civil Pro-

cedure, as will encourage the equitable, prompt, and

efficient resolution of cases arising out of the nuclear

incident; and

(vii) to assemble and submit to the President such

data, available to the court, as may be useful in es-

timating the aggregate damages from the nuclear in-

cident.

(o) Plan for distribution of funds

(1) Whenever the United States district court in the

district where a nuclear incident occurs, or the United

States District Court for the District of Columbia in

case of a nuclear incident occurring outside the United

States, determines upon the petition of any indemn-

itor or other interested person that public liability

from a single nuclear incident may exceed the limit

of liability under the applicable limit of liability under

subparagraph (A), (B), or (C) of subsection (eX1) of

this section:

(A) Total payments made by or for all indemnitors

as a result of such nuclear incident shall not exceed

15 per centum of such limit of liability without the

prior approval of such court;

(B) The court shall not authorize payments in excess

of 15 per centum of such limit of liability unless the

court determines that such payments are or will be

in accordance with a plan of distribution which has

been approved by the court or such payments are not

likely to prejudice the subsequent adoption and im-

plementation by the court of a plan of distribution

pursuant to subparagraph (C); and

ate, shall, and any other indemnitor or other inter:

ested person may, submit to such district court a plan

36a

for the disposition of pending claims and for the dis-

tribution of remaining funds available. Such a plan

shall include an allocation of appropriate amounts for

personal injury claims, property damage claims, and

possible latent injury claims which may not be dis-

covered until a later time and shall include establish-

ment of priorities between claimants and classes of

claims, as necessary to insure the most equitable al-

location of available funds. Such court shall have all

power necessary to approve, disapprove, or modify

plans proposed, or to adopt another plan; and to de-

termine the proportionate share of funds available for

each claimant. The Commission or the Secretary as

appropriate, any other indemnitor, and any person

indemnified shall be entitled to such orders as may

be appropriate to implement and enforce the provi-

sions of this section, including orders limiting the li-

ability of the persons indemnified, orders approving

or modifying the plan, orders staying the payment of

claims and the execution of court judgments, orders

apportioning the payments to be made to claimants,

and orders permitting partial payments to be made

before final determination of the total claims. The

orders of such court shall be effective throughout the

United States.

(D) A court may authorize payment of only such

legal costs as are permitted under paragraph (2) from

the amount of financial protection required by sub-

section (b) of this section.

(E) If the sum of public liability claims and legal

costs authorized under paragraph (2) arising from any

nuclear incident exceeds the maximum amount of fi-

nancial protection required under subsection (b) of this

section, any licensee required to pay a standard de-

ferred premium under subsection (b)\(1) of this section

shall, in addition to such deferred premium, be charged

such an amount as is necessary to pay a pro rata

37a

share of such claims and costs, but in no case more

than 5 percent of the maximum amount of such stand-

ard deferred premium described in such subsection.

(2) A court may authorize the payment of legal costs

under paragraph (1D) only if the person requesting such

payment has—

(A) submitted to the court the amount of such pay-

ment requested; and

(B) demonstrated to the court—

(i) that such costs are reasonable and equitable;

and

(ii) that such person has—

(1) litigated in good faith;

(II) avoided unnecessary duplication of effort

with that of other parties similarly situated;

(III) not made frivolous claims or defenses; and

(IV) not attempted to unreasonably delay the

prompt settlement or adjudication of such claims.

(p) Reports to Congress

(1) The Commission and the Secretary shall submit to

the Congress by August 1, 1998, detailed reports concern-

ing the need for continuation or modification of the pro-

visions of this section, taking into account the condition

of the nuclear industry, availability of private insurance,

and the state of knowledge concerning nuclear safety at

that time, among other relevant factors, and shall include

recommendations as to the repeal or modification of any

of the provisions of this section.

(2) Not later than April 1 of each year, the Commission

and the Secretary shall each submit an annual report to

the Congress setting forth the activities under this section

during the preceding calendar year.

(q) Limitation on awarding of precautionary evacuation

costs

> } “ “7% eure | > + _ . 17 } \ 6 “x sure 17 ¢

No court may award costs of a precautionary eva i

+i?

iItute a public hability

(r) Limitation on liabilMy of lessors

No person under a bona fide lease of any utilization or

production facility (or part thereof or undivided interest

therein) shall be hable by reason or an interest as lessor

such production or utilization facility, for any legal

ability arising out of or resulting from a nuclear inciden

sulting from such facility, unless such facility is in the

‘tual possession and control of such person at the time

of the nuclear incident giving rise to such legal

(s) Limitation on punitive damages

No court may award punitive damages in any action

with respect to a nuclear incident or precautionary evac

lation against a person on behalf of whom the United

States 1s obligated to make payments under an agreement

}

indemnification covering such incident or evacuation

(t) Inflation adjustment

(1) The Commission shal] adjust the amount of the max

mum standard deferred premium under subsection (b)1)

of this section not less than once during each 5-year period

A \

following August 20, 1988, in accordance with the aggre

rate percentage change in the Consumer Price Index

(A) August 20, 1988, in the case of the first ad

justment under this subsection; or

(B) the previous adjustment under this subsection

(2) For purposes of this subsection, the term ‘‘Consume

Price Index’’ means the Consumer Price Index for all u

ban consumers published by the Secretary of Labor.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.