Regrettably, in the future, U.S. populations may once again be exposed to radiation released from commercial nuclear reactor accidents similar to the partial meltdown that occurred in 1979 at the Three Mile Island nuclear power plant in Pennsylvania. There are currently 65 commercial nuclear power plants with 104 nuclear reactors (69 pressurized water reactors and 35 boiling water reactors) in thirty-one states in the U.S. Many of these reactors are aging, in urgent need of repair.
The Role of Price Anderson
A federal law, the Price Anderson Nuclear Indemnities Act, governs liability-related issues for all accidents in the US involving non-military nuclear plants constructed before 2026.
Price Anderson plays a central role in the Hanford Downwinder Nuclear Litigation. In the Hanford proceedings, contractor-defendants enjoy the immense benefits of indemnification under Price Anderson. Price Anderson provides these contractors with the ongoing services of private law firms, funded through virtually unlimited US taxpayer dollars to defend these former Hanford operators against the personal injury claims of the Downwinders.
What has come to pass over the last two decades in the Hanford Downwinder Litigation is highly instructive on how we as a country should (and should not) respond in the future to the cries for help of injured populations following offside radiation exposure from accidents at commercial nuclear reactors.
Downwinders Forced to Wait Decades
It is patently unfair to force victims of exposure to offsite radiation from nuclear accidents to wait decades or longer to see adjudication of their personal injury claims. Many of these exposure survivors suffer from disability related to cancers and other illnesses more likely than not caused by the exposures they received.
Price Anderson was enacted with the stated purpose of ensuring that adequate funds be made available to respond to claims for personal injury and property damage resulting from radiation releases offsite from accidents at commercial nuclear power plants. Yet, in the ongoing Hanford litigation, many plaintiffs have been waiting for more than two decades without receiving help of any kind, without response to claims for personal injury. Some exposure victims will not survive to see the resolution of this litigation.
Price Anderson: Bankrolling the Defense
Hanford’s Downwinder litigation has ground along now for an unbelievable twenty-three years. And it’s not over yet. Mass toxic tort litigation is expensive. In the Hanford litigation, US taxpayers continue to pick up the $60 million (and growing) tab for defense of the contractors that operated Hanford.
Meanwhile, plaintiffs counsel, the attorneys who represent the Downwinders, have been forced to rely upon their own resources as the litigation moves slowly along. Downwinder attorneys are paid for their decades of legal representation contingent upon recovery or favorable settlement for plaintiffs in the case. Many Downwinders injured by Hanford’s radiation releases, their income earning capacity diminished by illness and disability, could not otherwise afford to hire an attorney. This contingency arrangement is their only means of prosecuting a personal injury claim against the Hanford contractors.
The lawyers who, for more than two decades, have represented the Downwinders in the Hanford litigation, have dedicated much of their professional lives to representing people like me, at significant financial detriment to themselves. They have embodied a rare beacon of hope and compassion for the Downwinders over the past twenty-three years.
It is clear in the protracted Hanford Downwinder litigation that Price Anderson, in practice, is not serving the needs of exposed populations, the very people this law was intended to serve. If Price Anderson is not amended or revised, and its indemnification provisions continue to be employed in the future to lavishly finance defense of commercial nuclear plant operators against the personal injury claims of exposed populations, victims of nuclear accidents in the future have little hope of a just outcome.
Exposed Populations Should Not Bear the Burden of Proof
It is neither fair nor even feasible in many cases to require victims of exposure to offsite radiation from nuclear reactor accidents to bear the burden of proving that their disability and disease were “more likely than not” caused by those exposures.
The determination of whether a plaintiff has met the evidentiary burden of proving his or her disease was caused by radiation exposure is based upon the estimated radiation exposure dose that person received and whether studies acceptable to the court conclude that that specific level and type of exposure can result in the disease in question.
The problem is that operators of commercial plants where accidents occur may be hesitant for both liability and public relations reasons to reveal accurate information on the specific radioactive substances (radionuclides) released in an accident, the amount (source term) released, and where that radiation may have traveled and deposited.
If officials dealing with the aftermath of a reactor accident fail to thoroughly track and measure the specific radionuclides released from the accident, and make that data publicly available, people exposed can have an almost impossible task in proving their disease resulted from these exposures. Reactor operators may hope to try to minimize an accident by being less than thorough on reporting levels of radionuclides released.
Price Anderson Must be Amended or Revised
It is clearly time to amend or revise Price Anderson so that it can begin to meet its stated goal of providing “prompt and orderly compensation of members of the public who incur damages from a nuclear or radiological incident no matter who might be liable.” Recent settlement offers have been proffered to some plaintiffs by defense counsel in the Hanford litigation in amounts less than $10,000. Such low offers to settle feel to many Downwinders like a mockery of the injuries and loss we have endured. Yet, some plaintiffs, worn down from decades without hope, have taken these offers rather than continue what feels more like a demoralizing battle against a highly funded defense machine that can’t be stopped than a legitimate exercise in real justice.
Amendment or revision might bring Price Anderson more in line with alternative programs, which have responded to exposures of populations from nuclear incidents and accidents without the need for protracted litigation. In my next post on the topic, I will examine whether these programs achieve the goal of making exposed populations whole once again and whether they adequately compensate exposure victims for pain and suffering related to potentially radiogenic cancers and other disease.