[Congressional Record Volume 142, Number 83 (Friday, June 7, 1996)]
[Senate]
[Pages S5980-S5981]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JOHNSTON:
  S. 1852. A bill to bar class action lawsuits against Department of 
Energy contractors for nonphysical injuries, to bar the award of 
punitive damages against Department of Energy contractors for incidents 
occurring before August 20, 1988, and for other purposes; to the 
Committee on Energy and Natural Resources.


           the department of energy class action lawsuit act

 Mr. JOHNSTON. Mr. President, over the past 6 months, the 
Subcommittee on Oversight and Investigations of the Committee on Energy 
and Natural Resources has, under the able direction of Senator Thomas, 
conducted an investigation into the management and cost of class action 
lawsuits against the contractors that operated the Department of 
Energy's nuclear weapon plants.

  Senator Thomas' investigation uncovered a serious abuse of the legal 
system that is costing the taxpayers tens of millions of dollars in 
lawyer's fees each year and could result in hundreds of millions of 
dollars in judgments or settlements even though

[[Page S5981]]

there is no evidence and, in most cases, no claim that anyone was 
physically harmed by the operation of these plants.
  The problem results from the peculiar legal circumstances under which 
these cases are brought. Normally, people suing the government for 
injury must bring their suits under the Federal Tort Claims Act, which 
affords the taxpayers certain protections. Courts cannot award punitive 
damages against the Government. Suits must be grounded on specific 
claims of wrongdoing, not generalized grievances. The Government cannot 
be subjected to a jury trial or held liable for actions stemming from 
discretionary policy decisions made by Congress or Executive Branch 
officials.
  None of the protections of the Federal Tort Claims Act applies in 
these cases because the suits are not brought against the Government 
itself, but against its contractors. Yet, under the Price-Anderson Act, 
the Government indemnifies the contractors against any liability or 
legal costs arising out of the operation of the Department of Energy's 
nuclear weapons complex. The contractors defend the suits, without the 
benefit of the Government's normal protections, but the Government pays 
all the bills.
  In sum, we have divorced the power to defend these suits, which rests 
with the contractors, from the obligation to pay, which remains with 
the Government. The Government is the real party in interest in these 
cases, but it has been stripped of all of the legal protections it has 
in other cases.
  Today, I am introducing legislation to correct this problem. My bill 
is quite simple. It does three things.
  First, it prevents lawyers maintaining class action lawsuits against 
the nuclear weapons contractors for nonphysical injuries. Individual 
claims for nonphysical injuring could still be pursued. Class action 
suits could still be maintained for physical injuries. But class 
actions could not be maintained for nonphysical injuries.
  Second, the bill makes the medical monitoring regime established 
under Superfund the exclusive source of medical monitoring for these 
cases. The pending cases ask the courts to set up medical monitoring 
programs costing tens of millions of dollars for tens of thousands of 
people near these plants. The bill would require the courts to make use 
of the existing institution instead of creating multiple and redundant 
new ones.
  Third, it bars punitive damages where the government would have to 
pay them. The Federal Tort Claims Act does this already for suits 
against the government itself. We thought we were doing this under the 
Price-Anderson Act when we amended it in 1988, but the 1988 amendments 
only applied to incidents occurring on or after August 20, 1988, and 
the pending cases are based on occurrences prior to that date. This 
amendment extends the 1988 prohibition to apply to incidents occurring 
before 1988.
  These three reforms are the minimum that is needed to address the 
current problem. Indeed, some might say they do not go far enough. 
These reforms strike a fair balance that will ensure that anyone who is 
in fact injured by the operation of the nation's nuclear weapons 
complex will be compensated. At the same time, they close the loophole 
in the current law that has allowed a few lawyers to raid the U.S. 
Treasury on the flimsiest of claims.
  I urge all Senators to join me in supporting this measure and ask 
unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1852

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled, 

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Department of Energy Class 
     Action Lawsuit Act''.

     SEC. 2. CLASS ACTIONS.

       Section 170n. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2210(n)) is amended by adding after paragraph (3) the 
     following:
       ``(4)(A) An action may not be maintained as a class action 
     under Rule 23 of the Federal Rules of Civil Procedure against 
     any person indemnified by the United States under section 
     170d. with respect to any claim for a nonphysical injury that 
     arises from a nuclear incident or precautionary evacuation 
     regardless of when it occurred.
       ``(B) For purposes of this paragraph, ``nonphysical 
     injury'' includes--
       ``(i) emotional distress and any mental or emotional harm 
     (such as fright or anxiety) that is not directly brought 
     about by a physical injury even though it may manifest itself 
     in physical symptoms; and
       ``(C) For purposes of this paragraph and paragraph (5), the 
     term ``person indemnified by the United States under section 
     170d.'' means any person indemnified by the United States--
       ``(i) under section 170d.; or
       ``(ii) under any other authority that obligates the United 
     States to make payments relating to a nuclear incident or 
     precautionary evacuation that arises from activities 
     conducted under contract with the Department of Energy or any 
     of its predecessor agencies.''

     SEC. 3. MEDICAL MONITORING.

       Section 170n. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2210(n)) is further amended by adding at the end the 
     following:
       ``(5)(A) Except in the case of an extraordinary nuclear 
     occurrence, medical monitoring provided by the Agency for 
     Toxic substances and Disease Registry under section 104(i) of 
     the Comprehensive Environmental Response, Compensation, and 
     Liability Act (42 U.S.C. 9604(i)) shall be the exclusive 
     remedy for any claim for medical monitoring in a public 
     liability action against a person indemnified by the United 
     States under section 170d. No court may grant a remedy for a 
     claim for medical monitoring in a public liability action 
     except in the case of an extraordinary nuclear occurrence or 
     as provided in section 310(a)(2) of the Comprehensive 
     Environmental Response, Compensation, and Liability Act (42 
     U.S.C. 9659(a)(2)).
       ``(B) For purposes of this paragraph, ``medical 
     monitoring'' includes any medical screening, testing, or 
     surveillance program intended to detect, study, prevent, or 
     treat bodily injury, sickness, disease, or death that may 
     arise from a nuclear incident or precautionary evacuation.''.

     SEC. 4. PUNITIVE DAMAGES.

       Section 170s. Of the Atomic Energy Act of 1954 (42 U.S.C. 
     2210(s)) is amended to read as follows:
       ``(s.) Limitation on Punitive Damages.--No court may award 
     punitive damages in any action with respect to a nuclear 
     incident or precautionary evacuation against a person on 
     behalf of whom the United States is obligated to make 
     payments under any agreement of indemnification covering the 
     incident or evacuation, regardless of--
       ``(A) when the incident or evacuation occurred; or
       ``(B) whether the agreement of indemnification was entered 
     into under this Act or under any other authority.''.

     SEC. 5. ACTIONS COVERED.

       The provisions of this Act shall apply to any public 
     liability action (as defined in section 11hh. of the Atomic 
     Energy Act of 1954 (42 U.S.C. 2014(hh)) that is pending on 
     the date of the enactment of this Act or commenced on or 
     after such date.

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