Mapping Three Mile Island

On March 28, 1979, the core of Reactor 2 at the Three Mile Island Nuclear Generating Station near Harrisburg, Pennsylvania began to melt down.¹ Radiation levels built to dangerous levels inside the facility's buildings as radioactive gasses escaped the plant through a ventilation stack.² The plant's operator and US government agencies had no immediate way of ascertaining how much of the core had melted or how much radioactive material had escaped. Some of the plant's radiation monitors went off the scale and failed. A small offsite network of twenty thermo-luminescent dosimeters (TLDs), meanwhile, lay unevenly dispersed and too widely spaced to track the precise path of the effluent.³ By Friday, March 30, Pennsylvania Governor Richard Thornburgh had advised all pregnant women and pre-school-aged children within a five-mile radius to evacuate. Thousands of residents left the area as scientists, engineers, and regulators scrambled to control the meltdown and assess its effects.⁴

Over the months and years that followed, the Three Mile Island (TMI) incident became a source of legal controversy over nuclear compensation. Amidst uncertainty over the magnitude of offsite contamination and distrust of corporate and government actors, residents filed thousands of claims for compensation in US federal and state courts.

This chapter explores injury litigation arising out of TMI as a means of mapping the US system of liability and compensation for offsite harms caused by nuclear power generation. TMI was the first major incident in a civilian nuclear power plant worldwide. It was also the first major test of the US legislation that governs and limits liability for civilian nuclear power incidents—the Price-Anderson Nuclear Indemnities Act. Consequently, TMI provides an important window into questions at the heart of nuclear liability and compensation: Who is a proper claimant? How are the geographical and temporal boundaries of a disaster determined? What knowledge and knowers are privileged in these processes?

Analysis of TMI offers an important point of comparison to the later-arising catastrophes at Chernobyl and Fukushima for several reasons. First, the TMI incident was far less severe. Unlike the Chernobyl facility, which did not employ any kind of containment, the TMI 2 reactor sat within a robust containment vessel. Later investigations revealed that about half of the reactor core melted, but the containment vessel remained intact.⁵ Although legal claimants contested the magnitude of the release, damage from the TMI incident was largely limited to short-lived, airborne emissions of radioactive noble gasses through a vent stack. By way of comparison, the International Atomic Energy Agency (IAEA) has rated the TMI incident as a level 5 “accident with wider consequences” on its seven-tiered International Nuclear Event Scale. It has rated both Chernobyl and Fukushima as level 7 “major accidents”—the most serious category in the IAEA classification scheme.⁶

Because the TMI incident was far less severe than the other reactor disasters discussed in this report, it sheds light on how the boundaries of nuclear compensation are drawn and contested when uncertainty abounds and causal linkages between incident and injuries are difficult to discern. After TMI, this process was shaped by legal disputes between claimants and the operating corporation—a private corporation represented in court by lawyers funded by private nuclear insurance pools. US government participation in the claims process was largely limited to adjudication of intractable disputes by the federal courts.

This raises the second major distinction between the TMI incident and the Chernobyl and Fukushima disasters: claimants sought compensation not from governmental or quasi-governmental entities, but from private corporations. They ultimately did so within an adversarial litigation system, rather than a system of entitlements (as in the case of Chernobyl) or a government-crafted administrative settlement scheme (as in the case of Fukushima). Courts’ reliance on routine tort (injury) law to set the standards for recovery, in turn, raised difficult legal and scientific challenges for the claimants. Foreclosed from participation in making the rules of nuclear compensation in the first instance, everyday people who faced the risks of nuclear power generation fared poorly in the US courts. The TMI claimants’ chief avenues of participation in setting the boundaries of nuclear compensation were a series of long, arduous, costly, and ultimately unsuccessful legal disputes. The system that governed injury claims after TMI endures largely unaltered today.

The Price-Anderson Nuclear Industries Indemnity Act

At the time of the TMI incident, the US legislative regime governing nuclear reactor meltdowns focused on promoting foreign policy goals and growing private industry, rather than on protecting the public from harm. Beginning in the 1950s, the US pioneered a legislative regime that promoted private insurance and technology industry participation by shielding corporate participants from the full costs of a catastrophic nuclear disaster.

The United States’ regulation of reactor liability emerged in response to Cold War politics. During the 1950s, the Eisenhower administration sought to promote the peaceful uses of nuclear energy as a salve against the horrors of nuclear weapons and a bargaining chip in US foreign policy.⁷ Concurrently, the US adopted a model of public-private collaboration in the field of nuclear power. Facing the potential of liability for a nuclear reactor catastrophe, corporations such as General Electric, Westinghouse, and Monsanto lobbied for special protections.⁸

Lawmakers designed a sui generis legislative regime, the Price-Anderson Nuclear Industries Indemnity Act of 1957, to foster private participation in developing nuclear power by limiting the financial risks that corporations would face. The Act channeled the financial costs of all public liability—injuries to persons and property outside the boundaries of a nuclear facility (excepting certain workman's compensation claims and acts of war)—to the operators of nuclear facilities (i.e., the power companies). It shielded other industry participants, such as suppliers of parts and designs, from all financial responsibility.⁹ Concurrently, the Act also limited the financial responsibility of nuclear plant operators to the costs that newly forming nuclear insurance pools were willing to underwrite. (In the earliest decades of the Act, the US government also covered an additional increment of funding, though this was later phased out.¹⁰)

Protecting the public from the risk of nuclear power was not the primary goal of the legislation at its inception.¹¹ From the outset, the total amount of funding for public liability fell far short of the potential cost of injuries to the public that could result from a catastrophic meltdown. US scientists estimated in 1957 that a meltdown could cause up to $7 billion in damages, but the Price-Anderson Act, in its initial iteration, limited guaranteed compensation to $560 million.¹² This left open the possibility that losses to citizens and communities near a malfunctioning plant would not be compensated fully in the event of a major disaster.

The Price-Anderson legislation enabled lawmakers to treat civilian nuclear power as a financially exceptional field. The legislation fostered the private insurance industry by keeping the US government from becoming a primary insurer.¹³ Meanwhile, the regime ensured that the full risks of nuclear electricity generation were not reflected in the price of parts, transit, or kilowatt hours.

This system relied on private insurers as the primary gatekeepers of the claims process, leaving the courts as the final forum for recourse in difficult disputes. Insurers, not US government agents, would interact with claimants and take a first pass at judging the validity of claims. The Price-Anderson regime also assumed, however, that major incidents would generate contentious litigation. Thus, the state and federal courts would be the final arbiters of claims against operators. Under this regime, the nuclear insurers would be responsible for defending litigation claims against operators. Insurers would be both gatekeepers in the claims process and interested parties in ensuing litigation.

The Act created an exceptional regime for managing financial risk, but it left the substantive laws of injury largely unaltered. The system left in place all of the typical legal obstacles to making a successful claim under civil laws governing injury to persons and property, known as tort laws. Although the specifics of tort laws varied among the United States’ fifty states, claimants would face some similar hurdles in making claims. Among other things, in the case of bodily harm, a claimant would have to prove her injury was more likely than not caused by ionizing radiation.

As legal commentators recognized in the 1950s, the nature of radiation exposure and the kinds of injuries it could induce raised special challenges for tort claims. Radiation exposure is difficult to trace. A person harmed by radiation would need the help of experts and specialized equipment to establish that they had been exposed. Many of the injuries caused by radiation, moreover, are not specific. Solid tumor cancers, for instance, commonly arise from a variety of causes that cannot be discerned from a tumor's biological characteristics. This would make it very difficult for a claimant seeking to prove that exposure to ionizing radiation, rather than some other factor, had more likely than not caused her injury. Finally, radiation injuries could take many years to manifest, creating additional problems of proof and difficulties surrounding procedural limitations on the time frame in which a case could be filed.¹⁴

Legislators initially justified this financially exceptional but legally mundane regime as a temporary measure to foster the growth of the nuclear industries. It became permanent, however, in the decades that followed. The legislative regime remained largely intact over time, with some changes to increase the portion of liability that the insurance pools would underwrite, to phase out government contribution, and to limit operators’ defenses against liability in some extreme circumstances. By 1979, the Act required operators to carry $140 million in insurance for each facility. If the costs of public liability outstripped this primary layer of insurance, every operator would be obligated to pay retrospective premiums of up to $5 million per reactor. The secondary layer of insurance provided for about an additional $340 million in insurance coverage.¹⁵ If damage awards outstripped these coverages, claimants would not be fully compensated for the harms they suffered.

The amended Act also contained provisions intended to ease legal hurdles for plaintiffs in the case of a major incident—dubbed in bureaucratic-speak an “extraordinary nuclear occurrence” (ENO).¹⁶ To qualify as an ENO, a nuclear incident had to meet two criteria. First, the incident had to cause a substantial release of radiation offsite or substantial radioactive contamination offsite. This could be measured by dose to persons or exposure of environments.¹⁷ The criteria set these thresholds quite high, for example, requiring a skin dose of at least 60 rem to qualify—a dose high enough to cause immediate symptoms of acute radiation sickness in some people. Second, an incident also had to cause actual or likely substantial offsite damages, measured in harm to life or financial damage.¹⁸ These criteria were less stringent, requiring, for example, only $5 million in aggregate financial harm.

If US regulators deemed an incident to be an ENO, several defenses against liability would be waived and the statute of limitations set uniformly at three years following discovery of an injury, provided the injury was discovered within 10 years of the ENO. A plaintiff would still have to prove that the ENO caused her injury and would also have to prove damages—the most difficult hurdles in any radiation injury case.¹⁹ The amendments consequently left the rules of state tort laws intact while lowering some barriers to a plaintiff's recovery.

Anti-nuclear activists were not appeased by these periodic amendments to the Price-Anderson regime. During the early 1970s, public interest groups began to challenge what they saw as an inequitable distribution of the risks and benefits of nuclear power. In 1973, individuals living in the proximity of nuclear plants under construction in North and South Carolina sued Duke Power. They argued, in part, that the Price-Anderson Act violated the Equal Protection Clause of the US Constitution because the limitation of corporate liability placed a disproportionate burden of the risks and costs of nuclear energy on the victims of an accident.²⁰ The citizen plaintiffs won at trial but faced difficulties on appeal.

On June 26, 1978, less than one year before TMI, the US Supreme Court held unanimously that Congress had acted constitutionally in limiting liability in order to promote the production of nuclear energy.²¹ Over two decades after its genesis, the US nuclear liability regime remained focused on private, corporate interests—insurers, plant operators, and suppliers—protecting the nuclear industry at the expense of the public.

Price-Anderson after TMI

The TMI incident tested the Price-Anderson regime in unprecedented ways, exposing the complicated private-public nature of nuclear compensation in the United States. Up until 1979, claims brought under the Price-Anderson regime had been fairly small, work-related ones mainly handled through the insurers’ administrative claims-processing procedures. There had been no major incident at a civilian nuclear facility, and no claim had ever come close to the financial ceiling of the primary layer of insurance.

Nuclear insurance in the US had actually proven to be a lucrative, low-risk field with minimal litigation. The aggregate of all paid claims was quite low. Between 1957 and March of 1979, for example, the nuclear insurance pools paid only 28 claims totaling $1,453,911.²² All of these claims arose in the context of workers’ and contractors’ activities and none had involved a claim by a member of the public. It appears that all claims brought under the Price-Anderson Act and terminated prior to TMI were resolved through the insurers’ administrative claim processing procedures rather than through litigation.²³

In comparison to the low rate and cost of claims, the insurers had charged substantial premiums. For example, in 1957, the insurance pools charged about $300,000 per-year per-facility for $60 million in required coverage.²⁴ These costs increased over the decades along with increasing coverages and inflation. Although the insurers returned a portion of unused premiums periodically to avoid taxation, the business was still lucrative since claimants made relatively few demands on the insurers’ reserves.

The TMI incident forced nuclear insurers to reckon with a much larger, costlier, and more complicated incident than they had previously handled. On Friday, March 30, Pennsylvania Governor Richard Thornburgh advised all pregnant women and pre-school-aged children within a five-mile radius of the plant to evacuate.²⁵ An estimated 144,000 people—roughly 39% of the population within the 5-mile radius—evacuated.²⁶

The nuclear insurance pools moved quickly to set up claims-processing operations near the plant. By March 31, they had opened a claims office in the area and dispatched claims officers to the Red Cross shelter at Hershey Stadium. All told, the insurers paid 3,806 claims worth about $1.3 million for evacuation expenses and lost wages incurred by residents living within a five-mile radius of the plant during the eleven-day evacuation advisory.²⁷ These smaller, routine claims associated with the costs of evacuation nearly outstripped the combined cost of all claims paid before TMI.

The incident also gave rise to extensive litigation—a first in the Price-Anderson Act's long history. The Price-Anderson Act's draftspersons had focused on the financial terms of the legislation, leaving courts to deal with silences and legal ambiguities. The TMI incident now forced courts to begin to interpret the Price-Anderson Act's untested provisions as a variety of claim types went into litigation—not least, residents’ claims of injury.²⁸

The TMI injury claims centered on uncertainty surrounding the release of radioactivity from the plant. As mentioned, the ability to trace radioactive releases during the crucial early hours and days of the incident had been hampered by an inadequate number and distribution of TLDs. After extensive testing for radionuclides in the environment surrounding TMI, a US interagency taskforce concluded in 1980 that any radiation exposures had been too low to cause illness. The taskforce calculated a maximum individual dose of only 100 millirem (1 millisievert)—roughly one year's dose of naturally occurring background radiation for most people living in the United States.²⁹ Because the estimated exposures were so low, the US Nuclear Regulatory Commission concluded that the incident had not been an ENO.³⁰ This ruling benefitted the operator and the insurers tasked with defending it in court by ensuring that all legal defenses would be available to them.

This version of events did not sit right with local people who had begun to connect with Japanese industrial health and antinuclear activists visiting the area in the wake of the meltdown.³¹ As the community came together around questions of dose, many individuals recalled experiencing strange tastes and smells, erythema, and nausea. Others observed a variety of harms to animals and the environment.³² Residents sought to understand potential linkages between their observations and the TMI incident, but their concerns were largely dismissed by US government agencies and studies.³³

Despite the volume and number of studies undertaken by US government agencies to trace radionuclides, residents remained distrustful and upset that few officials had taken time to listen to them or to assess the harm to their bodies and environments.³⁴ As early as spring of 1979 residents began to sue in state and federal courts seeking to remedy what they felt was shoddy science. In 1981, the operator's insurers reached settlement on a class action lawsuit, filed in the US Federal District court for the Middle District of Pennsylvania.³⁵ The plaintiffs had sought class certification for several classes of individuals situated within a twenty-five-mile radius of the plant.³⁶ The insurers, which had previously only entertained economic loss claims from a five-mile-radius evacuation zone surrounding the plant, now agreed to pay $20 million for the reimbursement of economic losses of individuals and businesses within this broader area. In addition, they provided a $5 million public health fund to support epidemiological and environmental studies.³⁷

The Public Health Fund's work failed to salve residents’ worries. An independent 1984 review of dosimetry sponsored by the Fund actually further kindled residents’ concerns, suggesting that government dose estimates had been problematic and incomplete.³⁸ By this time, some residents had begun to receive diagnoses for health problems they associated with possible radiation exposure—ailments like thyroid conditions and a variety of cancers. Local activists turned to both science and law, mobilizing on their own to collect data about health and local environments and filing scores of lawsuits.³⁹ By 1985, over 2,000 individuals had filed personal injury claims in state and federal courts in Pennsylvania, New Jersey, and Mississippi.⁴⁰

Initial disputes centered on questions of whether US federal or state courts would exercise jurisdiction over the injury claims. Though a technical legal issue, in personal injury claims, jurisdiction can have profound consequences for the result of a dispute. Legal professionals typically assume that state courts favor injury plaintiffs and federal courts favor corporations. Consequently, TMI's operator initially removed all of the claims to US federal court in the Middle District of Pennsylvania. In declining to declare the TMI incident an ENO, however, the Nuclear Regulatory Commission vitiated the clearest source of federal jurisdiction. The US Court of Appeals for the Third Circuit ruled in the plaintiffs’ favor, holding that the Price-Anderson Act did not confer jurisdiction on the federal courts. Pending claims were consolidated in state court in Dauphin County, Pennsylvania.⁴¹ Not long after, in 1985, the insurers paid roughly $14.25 million in settlements to about 280 claimants, taking the public position that they had settled not because the claims were valid, but to avoid the cost of litigation.⁴²

This small victory was short-lived. In 1988, Congress created a federal cause of action for “public liability” suits and retroactively conferred jurisdiction on the US federal courts.⁴³ The defendants immediately removed the more than 2,000 remaining personal injury claims to federal court in the Middle District of Pennsylvania, which would apply Pennsylvania tort law to the dispute. Pressure toward settlement dissipated, and the injury claims began to slowly work their way through the pre-trial motions.

The outcome-determinative features of the dispute did not become clear until 1995, when the court held that plaintiffs needed to demonstrate they were exposed to at least 10 rem of radiation.⁴⁴ This was a sub-acute dose-level widely agreed by scientists to cause an increased risk of harm.⁴⁵ As in most injury lawsuits in the United States, the plaintiffs had to demonstrate it was more likely than not (i.e., 51% likely) that radiation from the meltdown had caused this dose. Given the lack of scientific consensus over the effects of low-dose radiation, the court reasoned that, as a matter of law, plaintiffs would not be able to meet their burden of proof if they showed a lower level of radiation exposure.⁴⁶

The deck was stacked against the plaintiffs from the outset. Under the rules governing the admission of expert evidence, US government agency studies and reports were automatically admissible.⁴⁷ In the case of TMI, those studies had concluded that residents had not been exposed to levels of radiation sufficient to cause injuries. As discussed above, moreover, civil law evidentiary burdens were in tension with how radiation exposure was understood to cause or contribute to bodily harm. Many radiogenic cancers can also arise from other causes. In many other cases, radiation exposure does not necessarily cause injury, but rather combines with other factors to increase a person's overall risk of developing particular cancers. The plaintiffs would have to produce persuasive expert evidence in an attempt to establish causation.

This introduced problems of cost. Where the operator could rely on government-funded studies to support their defense, the plaintiffs had to develop extensive and novel scientific studies. The plaintiffs’ attorneys very likely covered those costs up front. In the vast majority of personal injury cases—and presumably in the case of TMI, though the archival record is silent on the point—attorneys represent claimants on a contingent fee basis. Under this method of payment, claimants do not pay any expenses or lawyers’ fees unless they win a verdict or a settlement. Typically, the attorneys are entitled to recover their expenses, including costs of expert reports, and thirty percent of the settlement or judgment. This process creates incentives for lawyers to attempt to save on costs.

The plaintiffs focused on developing expert evidence of dose that US government agencies had overlooked—principally the effects of radiation on sufferers and plants and animals in the region. To do this, they assembled an impressive array of experts in dose reconstruction, drawn from experiences studying a number of other nuclear incidents, most notably Chernobyl. Although the Chernobyl disaster had occurred seven years after the TMI incident, the lengthy litigation process meant that data and experts from Chernobyl were now available to the TMI plaintiffs. Well-regarded experts from the US nuclear complex and government facilities similarly joined in the plaintiffs’ cause. So did a number of other physicians, epidemiologists, veterinarians, and dose reconstruction experts from academic institutions, private practices, and consulting businesses.⁴⁸

The plaintiffs’ experts, in turn, collaborated closely with community activists to identify areas where harm to persons and environments appeared to aggregate.⁴⁹ This close collaboration with sufferers was a routine practice in retrospective dose reconstruction.⁵⁰ For the plaintiffs, however, the collaboration represented a new and welcome opportunity to make the case that they had been harmed by the meltdown. Working in this fashion, the plaintiffs produced a number of small scientific studies geared toward proving exposure levels by establishing dose ranges in plants, animals, and people.

Despite the plaintiffs’ development of several intriguing pilot studies, other aspects of the attorneys’ work practices undermined the case. For reasons unclear in the archival record, but likely related at least in part to cost, the plaintiffs’ attorneys directed or permitted their experts to file piecemeal letters, affidavits, and responses of various sorts, rather than formal, comprehensive expert reports typically introduced in litigation.⁵¹ In many cases, the studies themselves were not as robust as they could have been. Cytogeneticists, for example, neglected to employ established techniques to account for problems introduced due to the passage of time.⁵² Immunologists did not examine the patients or their full medical histories to rule out other possible causes of immune suppression.⁵³ On top of this, the plaintiffs’ lawyers routinely missed court-imposed filing deadlines, which, as any practicing lawyer knows, can easily be fatal to a case.

The already high evidentiary burdens placed on the plaintiffs, coupled with the lawyers’ conduct, proved insurmountable across a series of pre-trial hearings to assess the admissibility of the plaintiffs’ expert evidence. The court excluded almost all expert materials that had been untimely filed. This reached nearly every expert in the case, since the experts’ materials trickled in letter-by-letter and affidavit-by-affidavit over an extended period of time.⁵⁴ After filtering out most of the late-filed documents, the court then ruled to exclude almost all of the plaintiffs’ remaining expert testimony on grounds that it was unreliable and would not help a trier of fact (i.e., a jury or judge) to decide the case. The court's decision was motivated in large part by the vast corpus of government studies on the incident. Where the plaintiffs had to pay for, and introduce new studies and testimony, the defendants had been able to rely on voluminous government data. Focusing on these reports and on expert testimony that very little radioactive material had been released from the plant in the first place, the defendants were able to persuade the judge to exclude evidence of high doses as unreliable.⁵⁵

On the balance, although the plaintiffs had introduced some novel evidence of harm in their bodies and in living organisms in the regions around the plant, the court concluded they could not, as a matter of law, prove it was more likely than not that they were exposed to a dose over 10 rem. The plaintiffs’ experts had established the possibility of a larger exposure, but not its probability. This severed the causal link between plaintiffs’ suffering—their cancers and injuries—and the TMI incident. The trial court entered summary judgment in favor of the defendants, terminating the case in the pre-trial stages.⁵⁶ The Third Circuit Court of Appeals affirmed, ruling on its final appeal in 2002, more than twenty years after TMI.⁵⁷

TMI and the Future of Nuclear Compensation

Today, the TMI incident serves as a dark mirror, reflecting deeply held beliefs about nuclear power. Nuclear insurers and industry participants look back at TMI as a successful proof of concept of the Price-Anderson regime. The nuclear insurers paid out nearly $71 million, including payments of approximately $29 million in defense-side legal fees. (The plaintiffs’ legal fees, covered by the plaintiffs’ law firm, were not included in official calculations of the cost of TMI.) This fell well within the site's primary layer of insurance coverage.⁵⁸

The insurance pay-outs tell only part of the story, however. The cleanup of TMI lasted more than ten years and cost approximately $1 billion. The Japanese government furnished $18 million and sent engineers to participate in the cleanup as a means of building experience in dealing with nuclear incidents. The remainder of funding came from nuclear property insurers, distinct from third-party liability insurers, who paid about $300 million; ratepayers, who paid about $125 million; shareholders; the Department of Energy; and the states of Pennsylvania and New Jersey. All told, the TMI incident cost approximately $1.7 billion, and the publics that had been put at risk footed a large portion of the bill.⁵⁹

Those who attribute their suffering to the TMI incident, meanwhile, continue to feel the system failed them. Contentious litigation over the incident lasted roughly twenty-three years and cost tens of millions of dollars. Most claimants never received compensation for their injuries or felt heard by a system that discounted their suffering. Almost forty years after the incident, whispers of a cover-up continue to circulate in some communities.

The plant itself remains set on the Pennsylvania landscape, though it no longer produces electricity. The cost of operating the plant ultimately proved too high to compete with cheaper sources of power. Pennsylvania's legislature declined to further subsidize the plant. Forty years post-meltdown, TMI has been mothballed. Its cooling towers still mark the horizon as “spent” but highly radioactive fuel remains sheltered within.

The edges of nuclear disaster will always be porous. Nuclear contamination endures for generations and heeds few boundaries. Radiobiological knowledge shifts as each disaster unfolds and new techniques of study emerge. Determinations of who must be compensated after a nuclear disaster remain highly contestable and will often—perhaps always—be challenged. For every claimant who recovers compensation, there is another, barely disqualified claimant whose suffering will not be redressed.

Disputes over compensation at TMI demonstrate that it is not only the outcome, but also the process of determining the boundaries of compensation that matters to claimants. To residents living around the TMI plant, the process seemed unfair and unjust. They bore the risks of TMI and stood to suffer the most from the incident, yet government and industry actors disregarded their voices and experiences. Interested parties—corporations, insurers, and government agencies—had controlled the process. Whether or not one believes that the TMI incident caused radiogenic harm in the region or to the claimants, the process itself fueled distrust of the nuclear complex and feelings of disenfranchisement that reverberated throughout publics in the US and abroad.

The TMI claimants’ experiences are but one small part of a broader system that excludes at-risk and suffering communities from influencing nuclear compensation regimes in the US. Across numerous renewals, the legislative process has remained focused on industry participants, who possess money and power necessary to lobby successfully. Although NGOs have contributed periodically to legislative debates over the Price-Anderson regime, lawmakers have not solicited the views of those who know first-hand what it is like to experience nuclear harm or to attempt to make a claim. And under the existing insurance regime individuals can do nothing to protect themselves. To avoid being twice exposed for the same incident, insurers exclude nuclear damage from consumer policies.⁶⁰

The Price-Anderson regime, moreover, retains private insurers and federal courts as gatekeepers of US public liability claims. In 1990, the President's Commission on Catastrophic Nuclear Accidents convened in the wake of the Chernobyl meltdown. The Commission's final report urged Congress to consider adopting streamlined administrative settlement procedures for handling nuclear compensation.⁶¹ Shifting to an administrative regime in the case of massive disasters, the Commission felt, would lessen the burdens on claimants in a variety of ways. It would speed up compensation, lower the burdens of claims-making, and potentially permit recovery for those unable to prove that their injuries were caused by radiation. Such regimes have far more flexibility than litigation to address suffering in line with the limits of radiobiological knowledge.⁶²

Administrative settlement schemes also have disadvantages, however, as Schmid and Suami et al. clearly demonstrate in this report. Eligibility criteria—whether based on a territorial/environmental exposure model or dose model—are almost always controversial. The resulting settlement regimes tend to overcompensate some sufferers whose illnesses were not likely caused by radiation, while undercompensating other sufferers whose illnesses were caused by radiation. Since settlement funds are always limited, this distributional issue can lead to serious injustices. Other problems arise from the definitions of harm. Not least, as Suami et al. demonstrate in the case of Fukushima, these regimes typically only cover conventional categories of injury, such as damage to persons and property. They do a poor job of recompensing the many and varied types of harm that persons and communities suffer in the wake of a nuclear disaster.

The US Congress ultimately failed to act on the Commission's recommendation to proactively institute an administrative settlement scheme that could apply in cases of catastrophic nuclear disasters. Over the intervening decades, the state of knowledge and experience about nuclear disaster and mass settlement has changed. It is now up to Congress or the courts to reexamine these issues or to try new approaches at a future date.

Most recently, amendments to the Price-Anderson regime have done little to address how future nuclear disasters will be bounded and compensation awarded, let alone to include suffering and at-risk communities in such discussions. In 2005, the US Congress extended the Price-Anderson Act through 2025, focusing its attention principally on increasing the amount of coverage afforded. Although the primary and secondary tiers of insurance under the Act now total over $13 billion dollars, among the largest pools worldwide, the overall coverages pale in comparison to the full costs of a catastrophic disaster.⁶³ The Japanese government, for example, estimated in 2016 that the costs of Fukushima would exceed $188 billion.⁶⁴ More recent estimates by the think tank Japan Center for Economic Research suggest that costs may run as high as $315-$728 billion.⁶⁵

As long as nuclear power provides a significant source of electricity, communities located near reactors will bear many of the risks of a catastrophic meltdown. Yet they have little say in how they would be treated in seeking compensation after a disaster. Although lawmakers have thought long and hard about the solvency of energy and insurance companies, they have not fully considered claimants’ experiences of being harmed and seeking compensation. When the Price-Anderson regime was initiated in the 1950s, it was not possible to ask victims of a civilian nuclear reactor meltdown about such experiences. There had been no meltdown because civilian power generating facilities did not yet exist. Today, as this report saliently demonstrates, communities worldwide have experience seeking compensation for nuclear harm across a range of compensation regimes. These suffering and at-risk communities should be brought to the table in a democratic, participatory, and anticipatory process—not after, but before the next disaster occurs.

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1. For a detailed recounting of the incident, see Walker 2004. For a view of the incident's cultural and political impacts, see Zaretsky 2018 ↩︎

2. Walker 2004, 78-80 ↩︎

3. See Jan Beyea, A Review of Dose Assessments at TMI and Recommendations for Future Research (Three Mile Island Public Health Fund, 1984). ↩︎

4. Walker 2004, 137 ↩︎

5. Walker 2004, 72-78; Nuclear Regulatory Commission, June 2018 ↩︎

6. See International Atomic Energy Agency Information Series, Division of Public Information, 08-26941/E, International Nuclear and Radiological Event Scale. ↩︎

7. Hewlett and Holl 1989, 198-199; Mazuzan and Walker 1985, 18-31. On nuclear energy as a part of US international diplomacy, see also Krige 2006, 161-181 ↩︎

8. See, for example, Atomic Power and Private Enterprise: Hearings Before the Joint Committee on Atomic Energy, 82d Cong. 30-31 (1952) (statement of Edwin J. Putzell, Jr., Secretary, Monsanto Corporation); Hearings to Amend the Atomic Energy Act of 1946: Hearings on S. 3323 and H.R. 8862 Before the Joint Committee on Atomic Energy 334-35 (1954) (statement of Frank McCune, General Manager of Atomic Products Division, General Electric Company); Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards: Hearing Before the Joint Committee on Atomic Energy, 84th Cong. 27-56 (1956) (statement of William Mitchell, General Counsel, AEC). See generally Butler 1959. ↩︎

9. For an overview, see Mazuzan and Walker 1985, 113-117. ↩︎

10. See Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards: Hearing Before the Joint Committee on Atomic Energy, 84th Cong. 27-56 (1956) (statement of William Mitchell, General Counsel, AEC); Thomas 1958; Butler 1959 ↩︎

11. Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards: Hearing Before the Joint Committee on Atomic Energy, 84th Cong. 33, 38, 56 (1956) (statement of Harold L. Price, Director of Regulation, AEC). ↩︎

12. Mazuzan and Walker 1985, 203-208 ↩︎

13. For more on the development of nuclear insurance regimes in Europe, see Daston 2017 ↩︎

14. See, for example, Stason, Estep, and Pierce 1959, chapter 3. ↩︎

15. Gourley et al. 1985, 113. Chub Wilcox served as lead counsel for defendants in the TMI personal injury cases. ↩︎

16. Although some commentators favored the imposition of strict or absolute liability on operators, federal preemption of state tort law was not seen as a wise political move and it seemed unlikely that states would uniformly adopt such provisions on their own. See Walker and Mazuzan 1992, 135-36 ↩︎

17. In its implementing regulations, the AEC defined a substantial release of radiation as exposure of one or more persons offsite to a whole body or bone marrow dose of 20 rem, an organ or thyroid dose of 30 rem, or a skin dose of 60 rem. A release could also be deemed substantial if 100 square meters or more of offsite property were contaminated to specified levels. This included offsite contamination of property owned by third parties at levels of .35 microcuries per square meter of alpha emission from transuranic isotopes (practically speaking, this referred mostly to certain plutonium isotopes with exceptionally long half-lives), 3.5 microcuries per square meter of other alpha emission, or 4 millirads/hour at 1 cm^2^ of beta or gamma emission. See 42 U.S.C. § 2210(n) (Supp. 1967). 10 C.F.R. § 140.84; Walker and Mazuzan 1992, 137-38 ↩︎

18. Under the regulations, damages were (and still are) considered to be “substantial” if an incident caused death or hospitalization of five or more people within thirty days. Alternatively, an incident could also be deemed substantial if it caused $2.5 million in damage to one person or $5 million in aggregate damages. Finally, damages would be substantial if they caused $5,000 in damage to fifty or more persons, provided $1 million or more of aggregate damages were likely to be sustained. 10 C.F.R. § 140.85; Walker and Mazuzan 1992, 137-38. ↩︎

19. 42 U.S.C. § 2210(n) (Supp. 1967); Walker and Mazuzan 1992, 137-38 ↩︎

20. See Carolina Environmental Study Group, Inc. v. AEC, 431 F. Supp. 203 (W.D. N.C. 1978), rev'd sub nom. Duke Power v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) (appealing directly to the Supreme Court). ↩︎

21. Duke Power, 438 U.S. 59. ↩︎

22. Gourley et al. 1985, 108-134 Claims data are presented in Table 1, 124-127. ↩︎

23. Gourley et al. 1985, 110-112 A database search returned no published cases litigated to a verdict under the Price-Anderson Act between its inception and the TMI incident. This does not necessarily mean there was no litigation, however. Dropped or settled claims would not have resulted in a published decision. The data in Gourley et al., “The Nuclear Liability Claims Experience of the Nuclear Insurance Pools,” Table 1, 124-127, do not identify claimants or facilities. ↩︎

24. 85 Cong. Rec. 10,716 (daily ed. July 1, 1957); Butler 1959, 55-56 ↩︎

25. Walker 2004, 137 ↩︎

26. Rockett 1988, 28 ↩︎

27. Gourley et al. 1985, 119 ↩︎

28. Besides personal injury cases, the incident gave rise to a variety of corporate and municipal claims. The plant operator sued the plant designer, Babcock and Wilcox, claiming the company had failed to warn it of known valve defects. It alleged $4 billion in damages for cleanup, reactivation, and lost revenues. Babcock and Wilcox settled the case in 1983, agreeing to give the operator $37 million worth of rebates on future service and equipment purchases by the operator. See General Public Utilities Corporation v. Babcock and Wilcox, 547 F. Supp. 842 (S.D.N.Y. 1982); Prial 1982; Osif, Baratta, and Conkling 2004, 87 A group of the operator's shareholders also sued, arguing that the operator had concealed the true risks of building and operating nuclear plants. The operator settled the suit out of court in 1983. It agreed to pay back $20 million in stock and securities to shareholders who had purchased operator stock prior to the incident. Osif, Baratta, and Conkling 2004, 87; Samson 1983 The State of Pennsylvania and local municipalities sued the operator separately for a variety of claims, including ones arising in public nuisance, for loss of revenues, and to recoup expenditures related to the disaster. See Commonwealth of Pennsylvania v. General Public Utilities Corp., 710 F.2d 117 (1983) (later superseded by amendments to the Price-Anderson Act). In 1984, the insurers settled, paying $250,000 to the state of Pennsylvania and $235,000 to each municipality within a twenty-five-mile radius of the plant. Smith 2013, 22 ↩︎

29. Walker 2004, 205-207 ↩︎

30. In the Matter of Three Mile Island Unit 2, 11 NRC 519 (1980). See also Report to the Regulatory Commission from the Staff Panel on the Commission's Determination of an Extraordinary Nuclear Occurrence (Washington, DC: Nuclear Regulatory Commission, 1980). ↩︎

31. See generally M. X. Mitchell, “The Cosmology of Evidence: Suffering, Science, and Biological Witness after Three Mile Island,” Journal of the History of Biology, forthcoming. ↩︎

32. Mitchell forthcoming ↩︎

33. Mitchell forthcoming For a recounting of distrust sewn by the TMI incident and citizens’ activism in response see generally Walsh 1988 ↩︎

34. For an overview of the US government studies see Report of the Public Health and Safety Task Force, Staff Report to the President's Commission on the Accident at Three Mile Island (Washington, D.C.: US Government Printing Office, 1979). ↩︎

35. Stipulation of Settlement and Agreement, In re Three Mile Island Litigation, Civ. No. 79-0432, February 17, 1981, Folder 14, Box 91, Series IV, Ruth Patrick Papers, Philadelphia Academy of Natural Sciences, Philadelphia, PA; Walsh 1988, 120-21 ↩︎

36. See In Re Three Mile Island, 87 F.R.D. 433, 440 (M.D. Pa. 1980). ↩︎

37. Gourley et al. 1985, 120-21. This settlement did not limit the rights of individuals to sue for personal injuries. ↩︎

38. For the report, see Beyea 1984 ↩︎

39. On citizen activism, see Walsh 1988; Zaretsky 2018, chapter 3 ↩︎

40. For a summary of these suits and events, see In re TMI, 193 F.3d 613, 624-26 (3d Cir. 1999). Plaintiffs selected Mississippi for its favorable statute of limitations. ↩︎

41. In re TMI, 193 F.3d 613, 624-26 (3d Cir. 1999). ↩︎

42. Reed and Herman 1989; Smith 2013, 22 ↩︎

43. An Act to Amend the Price-Anderson Provisions of the Atomic Energy Act of 1954 to Extend and Improve the Provisions for Liability and Indemnification for Nuclear Accidents, Pub. L. 100-408, 102 Stat. 1066. 20 Aug. 1988. With the Chernobyl disaster now also in view, Congress also concurrently raised the insurance coverages and called for a new study on catastrophic nuclear accidents. Amendments increased the amount of primary financial protection amount to $200 million per reactor. It increased the retrospective premium to $63 million per reactor and the maximum annual payment of retrospective premiums to $10 million per year per reactor. This raised the total coverages to $9.5 billion per incident. The amendments required an increase in assessments every five years tied to inflation. They also clarified that precautionary evacuations would be covered by the Act, that punitive damages would not be available in public liability claims, and that legal fees were to be covered out of the primary insurance. Ibid. ↩︎

44. See In re TMI Cases Consol. II, 67 F.3d 1103, 1118 (3d Cir. 1995). The US Supreme Court's 1993 Daubert decision, 509 US 579 (1993), as interpreted by the Third Circuit Court of Appeals in In re Paoli Railroad PCB Litigation, 35 F.3d 717 (3d Cir. 1994), governed the admission of expert evidence in the case. ↩︎

45. The trial court seemed confused about the distinctions between exposure and dose and it and the parties tended to use the terms interchangeably. Exposure refers to radiation present in the environment and is often measured in Roentgen. Absorbed dose, in contrast, refers to the amount of radiation absorbed by a living being or an object. It is often measured in Radiation Absorbed Dose (rad) or Gray (Gy). Finally, effective dose combines the absorbed dose with measures of the harmfulness of particular kinds of radiation on the human body. It may be measured in Roentgen Equivalent Man (rem) or sievert (Sv). The court consistently referred to “exposure” but used a measure—rem—that referred to effective dose. It is likely the court wished to refer to the maximum possible effective dose—the same measure used by the interagency taskforce when it concluded that no harm had come to people in the region. ↩︎

46. In re TMI Litig. Consol., 927 F. Supp. 834, 865 (M.D. Pa. 1996). ↩︎

47. See Federal Rule of Evidence 803(8)(c) (excepting US agency reports from the prohibition on admission of hearsay). ↩︎

48. Mitchell forthcoming ↩︎

49. Mitchell forthcoming ↩︎

50. On practices of dose reconstruction, see especially Lindee 2016, 185-188 ↩︎

51. See In re TMI, 193 F.3d at 717-722. ↩︎

52. For discussion of problems with the cytogenetic studies see In re TMI, 193 F.3d at 689-93. ↩︎

53. For discussion of problems with the immunological analysis see In re TMI, 193 F.3d at 697-98. ↩︎

54. See In re TMI, 193 F.3d at 717-723. ↩︎

55. See In re TMI II, 911 F.Supp. 775 (M.D. Pa. 1996), aff'd in part 193 F.3d 613 (3d Cir. 1999). ↩︎

56. In re TMI II, 193 F.3d 613. ↩︎

57. Although the Court of Appeals upheld the District Court's summary judgment, it also held that the District Court had erred in finding summary judgment applied to all the remaining plaintiffs beyond those whose claims had been chosen as test cases. The Third Circuit held that plaintiffs who were not a part of the test claims could still proceed with trial seeking to prove that exposure below 10 rem had caused their injuries. It remanded roughly 1,990 claims for trial. In doing so, however, the court also noted that discovery period had closed. In re TMI, 193 F.3d at 726-729. On remand, the remaining plaintiffs attempted to reopen discovery since all of their previously introduced expert testimony had used the 10 rem floor as the basis for claiming causation. The District Court rejected the plaintiffs’ motion and granted summary judgment in favor of the defendants. The Third Circuit Court of Appeals upheld the District Court's grant of summary judgment in December of 2002. 53 Fed. Appx. 648 (3d Cir. 2002). ↩︎

58. Walker 2004, 230; Smith 2013, 22-23 ↩︎

59. Walker 2004, 230; Smith 2013, 22-23 ↩︎

60. Butler 1959, 33; McClure 1968, 260-62 ↩︎

61. Curiously, although the Commission heard experts’ testimony about a variety of mass disasters and settlement schemes—nuclear and non-nuclear—it did not once call a claimant or sufferer to talk about her experiences. See President's Commission on Catastrophic Nuclear Accidents, Hearings, Containers 1-2, RG220 Temporary Committees, Commissions, and Boards, National Archives and Records Administration II, College Park, MD. ↩︎

62. For the final report and recommendations, see Report to the Congress from the Presidential Commission on Catastrophic Nuclear Accidents (Washington, D.C.: Presidential Commission on Catastrophic Nuclear Accidents, 1990). ↩︎

63. Nuclear Regulatory Commission, January 2018 ↩︎

64. Obayashi and Hamada 2016 ↩︎

65. Kumori 2019 ↩︎