United States: Latent Effects Compensation Under The Price-Anderson Act: Current Cases

The Price-Anderson Act¹ provides omnibus insurance coverage for NRC licensees (operators) and related contractors in the event of a nuclear incident involving a nuclear power plant in the United States or shipment of nuclear material between licensees. The Act, passed into law in 1957, was the first national nuclear liability regime established among the world's countries operating nuclear power plants, and has undergone significant extension and revision since its initial codification. One unique aspect of the Act is that it provides, in the event that liability for any given accident is likely to be exceeded, for the development of compensation plans for payment of claims that arise as a result of latent injuries.² Other nuclear liability instruments, such as the Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention), the Convention on Supplementary Compensation (CSC), and the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (Vienna Convention), ultimately extinguish rights for personal injury compensation; the Paris Convention and CSC after 10 years, and the Vienna Convention after thirty, with some exceptions.³

Harm that is caused by exposure to radiation may not manifest itself for decades after exposure.⁴ Provisions in the Price-Anderson Act to establish compensation funds for injury later proven to result from ionizing radiation exposure may be seen then as a proactive approach that corresponds to reality for potential harms suffered from a nuclear incident. However, policymakers, scientists and industry have long acknowledged that latent injuries from radiation exposure are very hard to prove. In 1990, the Presidential Commission on Catastrophic Nuclear Accidents, established by the 1988 amendments to the Price-Anderson Act, devoted considerable time to this issue in its Report to Congress. The Commission noted that, because the Price-Anderson Act requires that the tort law of the state where a nuclear incident occurred must provide the substantive rules for compensating claims, establishing that radiation exposure was the "but- for" cause of a claim for cancer or any other harm is virtually impossible without a lawsuit:

What the Commission highlights in this passage, and develops throughout its report, is the possibility for latent effects compensation under the Price- Anderson Act to be both over- and under-inclusive of claims, and for the potential cost to utilities of litigation to determine which claims are legitimate. While at the time of a nuclear incident the federal court assigned to consolidate claims may authorize payment of legal costs, it is unclear whether that court should prepare a plan that provides compensation both for future latent injury claims and the expense of litigating those claims. Adding additional costs to future compensation claims may put unnecessary pressure on licensees that must still pay annual primary insurance premiums and insurance premiums into a retrospective pool of funds, particularly if such claims are never brought, and are subject to any uncertainty regarding Congress's obligation to appropriate future funds following the exhaustion of available insurance indemnities, or the ultimate Presidential approval of compensation plans.

For these reasons, the Commission recommended that the Price-Anderson Act take an "intermediate" approach to latent illness claims that involves creating a registry of potential claimants at the time of the accident, providing medical monitoring and offering settlements to individuals who develop an illness that have some causal connection with exposure.⁶ This would limit the potential exposure of licensees and industry to costs associated with litigating claims and compensating claimants, while also meeting Congress's intent to ensure that latent illnesses are compensated. While the Commission's recommendations were reported to Congress in 1990, no changes in line with its recommendations were made to the Price-Anderson Act. Moreover, two recent cases demonstrate that even these recommendations may be insufficient to achieve the Price-Anderson's dual goals to both compensate claims and provide some certainty to industry.

McMunn v. Babcock & Wilcox Power Generation Group

On August 23, 2017, the Third Circuit decided an appeal in favor of defendants by plaintiffs McMunn, et al, of a District Court decision granting summary judgement to Babcock & Wilcox Power Generation Group.⁷ The plaintiffs, more than 70 individuals, had been diagnosed with various forms of cancer, which they attributed to radiation effluent from the Apollo, Pennsylvania nuclear fuel fabrication facility operated by NUMEC, later purchased by Babcock & Wilcox. In its decision, the Court affirmed the District Court's ruling that there was no dispute as to material fact, noting that, although stacks at the Apollo facility may have exceeded permissible effluent levels provided in NUMEC's license, samples taken at the roof edge of the Apollo facility were below maximum permissible concentrations determined by federal standards.

The Court devoted a section of its decision to explaining causation issues in latent effects claims—entitled "The Science of Cancer." While acknowledging that "any increase in radiation exposure above zero is believed to increase the probability of carcinogenesis," the Court stated with regard to particular claims that "in a case like this one, the factfinder will always have to use ex-post data to ascertain whether any radiation— let alone any particular radioactive exposure—disrupted the cell in the past." Without completion of bioassays at the time of an incident, medical monitoring, or even, in fact, the occurrence of a single incident to which to point, potential radiation exposure in excess of permissible limits would require recreating both a physiological and atmospheric historical record— a virtually insurmountable task that, in this instance, nonetheless required litigating to the Circuit Court level before dismissal.

The McMunn decision represents neither an optimal outcome for industry or for claimants, both of whom dedicated time and money to the dispute. However, it is not clear that the intermediate approach recommended by the Presidential Commission on Catastrophic Nuclear Accidents would have brought the parties any closer, as the plaintiffs were not able to point to a single nuclear incident that would have been responsible for their exposure, although the Apollo facility violated the terms of its operating license.

Dailey v. Bridgeton Landfill, LLC.

The District Court for the Eastern District of Missouri is set to schedule oral arguments this year in the case of Dailey v. Bridgeton Landfill, LLC after denying defendants' motion to dismiss the case in October 2017. Plaintiffs,

Michael and Robin Dailey, claim property damage for radioactive contamination stemming from West Lake Landfill, the final repository for mill tailings generated as part of the Manhattan Project by defendant Mallinckrodt LLC from 1942–1957. The plaintiffs' claim, ultimately brought under the Price-Anderson Act, is against both the owners and operators of the landfill, which is not an NRC licensee, and radioactive waste generators and disposers.

While the plaintiffs claim that samples from their home, adjacent to the landfill, demonstrate the presence of highly elevated radioactive particles, the District Court nonetheless dismissed their request for medical monitoring as not a plausible claim for relief because the Daileys did not otherwise allege current physical injury. In light of the decision in McMunn, the District Court's dismissal may have warranted a more thorough consideration of the consequences of rejecting the Daileys' request for medical monitoring: if the Daileys are likely to bring a claim for latent injury in the future, wouldn't some form of medical monitoring protect both the defendants and the plaintiffs? If such monitoring were cost-prohibitive, or physical injury to the Daileys unlikely, the District Court's decision would likely reflect the best approach to the Daileys' request. However, it is not clear the Court took these considerations into account before rendering its determination.

Medical monitoring following exposure was included in the intermediate approach to latent illness claims recommended by the Presidential Commission on Catastrophic Nuclear Accidents. However, Dailey v. Bridgeton Landfill, LLC presents a problem that is analogous to that in McMunn: the plaintiffs will likely struggle to recreate the "but-for" causation required from historical data to demonstrate that radiation from the landfill, and ultimately radioactive waste generation and disposal operations engaged in by the defendants, is responsible for elevated radioactivity levels on their property. How the Court addresses the element of causation in the plaintiffs' claim remains to be seen, but without a fundamental change to the traditional standard used, both parties are likely to vigorously dispute the other's claims.

Conclusion

In a concurring opinion to McMunn, Judge McKee writes that "the law in this area is simply inadequate to address claims arising under the Price- Anderson Act based on exposure to excess radiation." Judge McKee then outlines evolving case law that relaxes the standards of traditional tort law to give plaintiffs a greater opportunity to succeed in latent illness claims brought under the Price-Anderson Act. He cites precedent that allows for claims to succeed under preponderance and proportionality standards, as well as burden shifting to the defendant, concluding, nonetheless, that "none of these approaches have yet gained wide acceptance" and that "none of these approaches is close to perfect." Indeed, all of these methods would likely involve protracted evidentiary hearings, reliance on expert testimony and seem unlikely to expedite disputes.

In its Report to Congress, the Presidential Commission touched on dispute resolution mechanisms used to resolve radiation claims brought against certain companies in the UK.⁸ In the absence of a suitable solution for traditionally litigated claims, it is possible that alternative dispute forums could provide a method for the swift and fair adjudication of claims. The nature and scope of such forums requires significant thought and trial and error to be successful. It's a concept worth considering further.

Footnotes

1 42 U.S.C. § 2210

2 42 U.S.C. § 2210(i)(2)(C)

3 See Article 8(a), Article 9(1) and Article 8(1), respectively.

4 For a discussion of this issue in nuclear liability regimes, see Patrick Reyners, Developments in International Conventions on Nuclear Third Party Liability, IAEA, http://www.iaea.org/inis/collection/NCLCollectionStore/_Public/31/051/31051429.pdf

5 Appendix D, Latent Illness Claims under Present Law, http://www.state.nv.us/nucwaste/news/rpccna/pcrcna14.htm

6 Id.

7 McMunn v. Babcock & Wilcox Power Generation Group, Inc., No. 15-3506 (3d Cir. 2017).

8 Appendix G, BNFL/UKAEA Agreement with Unions, te/news/rpccna/pcrcna17.htm

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