Nat'l. Defense Authorization Act FY98

[skirshen@energyca.org]

On Friday, the Senate passed the National Defense Authorization Act for FY
1998. The Bill included language which should assist local communities
surrounding DOE facilities who acquire property from DOE to obtain
protection from liability and "economic harm."

The National Defense Authorization Act for FY 1998 includes two primary
provisions. The Act:

1) Requires DOE to develop property transfer regulations for transfer by
sale or lease of real property "for the purposes of permitting the economic
development of the property."

2) Permits the Secretary of Energy to indemnify entities who obtain
ownership of the former DOE property at Defense Nuclear Facilities -
similar to section 330 indemnification at Defense sites(Section 330 is
mandatory indemnification// DOE provision is permissive, "the Secretary of
Energy may hold harmless and indemnify a person or entity").

The indemnification, if used by DOE, can be a positive influence on
economic development on communities.

President Clinton's staff has indicated he may still veto the Bill becasue
of the non-related DOD Defense Depot issues. 

The following is section 3158 of The National Defense Authorization Act For
Fiscal Year 1998 in its entirety:

"SEC. 3158. TRANSFERS OF REAL PROPERTY AT CERTAIN DEPARTMENT OF ENERGY
FACILITIES
>
> (a) TRANSFER REGULATIONS- (1) The Secretary of Energy shall prescribe
>regulations for the transfer by sale or lease of real property at
>Department of Energy defense nuclear facilities for the purpose of
>permitting the economic development of the property (2) The Secretary of
>Energy may not transfer real property under the regulations prescribed
>under paragraph (1) until--
> (A) the Secretary submits a notification of the proposed transfer to the
>congressional defense committees; and
> (B) a period of 30 days has elapsed following the date on which the
>notification is submitted.
>
>(b) INDEMNIFICATION- (1) Except as provided in paragraph (3) and subject to
>subsection (c), in the sale or lease of real property pursuant to the
>regulations prescribed under subsection (a), the Secretary of Energy may
>hold harmless and indemnify a person or entity described in paragraph (2)
>against any claim for injury to person or property that results from the
>release or threatened release of a hazardous substance or pollutant or
>contaminant as a result of Department of Energy activities at the defense
>nuclear facility on which the real property is located. Before entering
>into any agreement for such a sale or lease, the Secretary shall notify the
>person or entity that the Secretary has authority to provide
>indemnification to the person or entity under this subsection. The
>Secretary shall include in any agreement for such a sale or lease a
>provision stating whether indemnification is or is not provided.
> (2) Paragraph (1) applies to the following persons and entities:
> (A) Any State that acquires ownership or control of real property of a
>defense nuclear facility.
> (B) Any political subdivision of a State that acquires such ownership or
>control.
> (C) Any other person or entity that acquires such ownership or control.
> (3) To the extent the persons and entities described in paragraph (2)
>contributed to any such release or threatened release, paragraph (1) shall
>not apply.
>
> (c) CONDITIONS- (1) No indemnification on a claim for injury may be
>provided under this section unless the person or entity making a request
>for the indemnification--
> (A) notifies the Secretary of Energy in writing within two years after
>such claim accrues;
> (B) furnishes to the Secretary copies of pertinent papers received by the
>person or entity;
> (C) furnishes evidence or proof of the claim;
> (D) provides, upon request by the Secretary, access to the records and
>personnel of the person or entity for purposes of defending or settling the
>claim; and
> (E) begins action within six months after the date of mailing, by
>certified or registered mail, of notice of final denial of the claim by the
>Secretary.
> (2) For purposes of paragraph (1)(A), the date on which a claim accrues
>is the date on which the person asserting the claim knew (or reasonably
>should have known) that the injury to person or property referred to in
>subsection (b)(1) was caused or contributed to by the release or threatened
>release of a hazardous substance, pollutant, or contaminant as a result of
>Department of Energy activities at the defense nuclear facility on which
>the real property is located.
>
>(d) AUTHORITY OF SECRETARY OF ENERGY- (1) In any case in which the
>Secretary of Energy determines that the Secretary may be required to
>indemnify a person or entity under this section for any claim for injury to
>person or property referred to in subsection (b)(1), the Secretary may
>settle or defend the claim on behalf of that person or entity.
> (2) In any case described in paragraph (1), if the person or entity that
>the Secretary may be required to indemnify does not allow the Secretary to
>settle or defend the claim, the person or entity may not be indemnified
>with respect to that claim under this section.
>
>(e) RELATIONSHIP TO OTHER LAW- Nothing in this section shall be construed
>as affecting or modifying in any way section 120(h) of the Comprehensive
>Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
>9620(h)).
>
>(f) DEFINITIONS- In this section:
> (1) The term `defense nuclear facility' has the meaning provided by the
>term `Department of Energy defense nuclear facility' in section 318 of the
>Atomic Energy Act of 1954 (42 U.S.C. 2286g).
> (2) The terms `hazardous substance', `release', and `pollutant or
>contaminant' have the meanings provided by section 101 of the Comprehensive
>Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
>9601)."