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:

"Under the present system, latent illness claims are less likely to be resolved without dispute for the very reason that cancers that could be radiogenic also have other causes, and the precise cause cannot be isolated in a given case. Settlements are less likely when causation is so uncertain and also because there are no accepted alternative institutions for dispute resolution."5

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.


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.


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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions