I

104TH CONGRESS

1ST SESSION H. R. 1526

To authorize the Secretary of Energy to enter into privatization arrangements

for activities carried out in connection with defense nuclear facilities,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 7, 1995

Mr. HASTINGS of Washington (for himself, Mr. WAMP, Mr. GRAHAM, Mr.

NETHERCUTT, and Mr. DICKS) introduced the following bill; which was

referred to the Committee on Commerce, and in addition to the Committees on National Security, Government Reform and Oversight, and

Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To authorize the Secretary of Energy to enter into privatization arrangements for activities carried out in connection

with defense nuclear facilities, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Defense Nuclear Waste

5 Cleanup Privatization Act’’.
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1 SEC. 101. PRIVATIZATION OF WASTE CLEANUP AND MOD2 ERNIZATION ACTIVITIES OF DEFENSE NU3 CLEAR FACILITIES.

4 (a) CONTRACT AUTHORITY.—Notwithstanding any

5 other law, the Secretary of Energy may enter into 1 or

6 more long-term contracts for the procurement, from a fa7 cility located within 25 miles of a current or former De8 partment of Energy defense nuclear facility, of products

9 and services that are determined by the Secretary to be

10 necessary to support waste cleanup and modernization ac11 tivities at such facilities, including the following services

12 and related products:

13 (1) Waste remediation and environmental res14 toration, including treatment, storage, and disposal.

15 (2) Technical services.

16 (3) Energy production.

17 (4) Utility services.

18 (5) Effluent treatment.

19 (6) General storage.

20 (7) Fabrication and maintenance.

21 (8) Research and testing.

22 (b) CONTRACT PROVISIONS.—A contract under sub23 section (a)—

24 (1) shall be for a term of not more than 30

25 years;
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1 (2) shall include options for 2 10-year exten2 sions of the contract;

3 (3) when nuclear or hazardous material is in4 volved, shall include an agreement to—

5 (A) provide indemnification pursuant to

6 section 170d. of the Atomic Energy Act of 1954

7 (42 U.S.C. 2210(d));

8 (B) indemnify, protect, and hold harmless

9 the contractor from and against all liability, in10 cluding liability for legal costs, relating to any

11 preexisting conditions at any part of the de12 fense nuclear facility managed under the con13 tract;

14 (C) indemnify, protect, and hold harmless

15 the contractor from and against all liability to

16 third parties (including liability for legal costs

17 and for claims for personal injury, illness, prop18 erty damage, and consequential damages) for

19 negligence arising out of the contractor’s per20 formance under the contract, unless such liabil21 ity was caused by conduct of the contractor

22 which was grossly negligent or which con23 stituted intentional misconduct; and
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1 (D) provide for indemnification of sub2 contractors as described in subparagraphs (A),

3 (B), and (C);

4 (4) shall permit the contractor (in accordance

5 with Federal law) to obtain a patent for and use for

6 commercial purposes a technology developed by the

7 contractor in the performance of the contract;

8 (5) shall not provide for payment to the con9 tractor of cost plus a percentage of cost or cost plus

10 a fixed fee; and

11 (6) shall include such other terms and condi12 tions as the Secretary of Energy considers appro13 priate to protect the interests of the United States.

14 (c) PREFERENCE FOR LOCAL RESIDENTS.—In enter15 ing into contracts under subsection (a), the Secretary of

16 Energy shall give preference, consistent with Federal,

17 State, and local law, to entities that plan to hire, to the

18 maximum extent practicable, residents of the vicinity of

19 the Department of Energy defense nuclear facility who are

20 employed or who have previously been employed by the

21 Department of Energy or its private contractor at the

22 facility.

23 (d) SUBSEQUENTLY ENACTED REQUIREMENTS.—

24 (1) DEFINITION.—In this subsection, the term

25 ‘‘applicable requirement’’ means a requirement in an
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1 Act of Congress or regulation that applies specifi2 cally to activities described in subsection (a).

3 (2) INCREASED COSTS.—

4 (A) IN GENERAL.—A contractor under a

5 contract under subsection (a) shall be exempt

6 from an applicable requirement that would in7 crease the cost of performing the contract that

8 is—

9 (i) imposed by regulation by a Fed10 eral, State, or local governmental agency

11 after the date on which the contract is en12 tered into unless the regulation is issued

13 under an Act of Congress described in the

14 exception stated in clause (ii); or

15 (ii) imposed by an Act of Congress en16 acted after the date of enactment of this

17 Act, except an Act of Congress that refers

18 to this paragraph and explicitly states that

19 it is the intent of Congress to subject such

20 a contractor to the requirement.

21 (B) AMENDMENT OF CONTRACT.—In the

22 case of enactment of an Act of Congress de23 scribed in the exception stated in subparagraph

24 (A)(ii), the Secretary of Energy and the con25 tractor shall negotiate an amendment to a con-
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1 tract under subsection (a) providing full com2 pensation to the contractor for the increased

3 cost incurred in order to comply with any addi4 tional requirement of law.

5 (3) REDUCED COSTS.—

6 (A) IN GENERAL.—A contractor under a

7 contract under subsection (a) may elect to be

8 governed by a change in a requirement that

9 would reduce the cost of performing the con10 tract that is—

11 (i) adopted by regulation by a Fed12 eral, State, or local governmental agency

13 after the date on which the contract is en14 tered into, unless the change is made pur15 suant to an Act of Congress that refers to

16 this paragraph and explicitly states that it

17 is the intent of Congress to continue to

18 subject such a contractor to that require19 ment, as in effect prior to the date of en20 actment of that Act of Congress; or

21 (ii) enacted by an Act of Congress en22 acted after the date of enactment of this

23 Act, except an Act of Congress that refers

24 to this paragraph and explicitly states that

25 it is the intent of Congress to continue to
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1 subject such a contractor to that require2 ment, as in effect prior to the date of en3 actment of that Act of Congress.

4 (B) AMENDMENT OF CONTRACT.—In the

5 case of a change in a requirement that is to be

6 applied to a contractor that will reduce the cost

7 of performing the contract, the Secretary of

8 Energy and the contractor shall negotiate an

9 amendment to a contract under subsection (a)

10 providing for a reduction in the amount of com11 pensation to be paid to the contractor commen12 surate with the amount of any reduction in

13 costs resulting from the change.

14 (e) PAYMENT OF BALANCE OF UNAMORTIZED

15 COSTS.—

16 (1) DEFINITION.—In this subsection, the term

17 ‘‘special facility’’ means land, a depreciable building,

18 structure, or utility, or depreciable machinery, equip19 ment, or material that is not supplied to a contrac20 tor by the Department of Energy.

21 (2) CONTRACT TERM.—A contract under sub22 section (a) may provide that if the contract is termi23 nated for the convenience of the Government, the

24 Secretary of Energy shall pay the unamortized bal25 ance of the cost of any special facility acquired or
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1 constructed by the contractor for performance of the

2 contract.

3 (3) SOURCE OF FUNDS.—The Secretary of En4 ergy may make a payment under a contract term de5 scribed in paragraph (2) and pay any other costs as6 sumed by the Secretary as a result of the termi7 nation out of any appropriations that are available

8 to the Department of Energy for operating expenses

9 for the fiscal year in which the termination occurs

10 or for any subsequent fiscal year.

11 (f) LEASE OF FEDERALLY OWNED LAND.—

12 (1) IN GENERAL.—Notwithstanding any other

13 provision of law, the Secretary of Energy may lease

14 federally owned land at a current or former Depart15 ment of Energy defense nuclear facility to a contrac16 tor in order to provide for or to facilitate the con17 struction of a facility in connection with a contract

18 under subsection (a).

19 (2) TERM.—The term of a lease under this

20 paragraph shall be the lesser of—

21 (A) the expected useful life of the facility

22 to be constructed; or

23 (B) the term of the contract.

24 (3) TERMS AND CONDITIONS.—A lease under

25 paragraph (1) shall—
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1 (A) require the contractor to pay rent in

2 amounts that the Secretary of Energy considers

3 to be appropriate; and

4 (B) include such other terms and condi5 tions as the Secretary of Energy considers to be

6 appropriate.

7 (g) NUCLEAR STANDARDS.—The Secretary of En8 ergy shall, whenever practicable, consider applying com9 mercial nuclear standards to a facility used in the per10 formance of a contract under subsection (a).

11 (h) LIMITATION ON LIABILITY.—

12 (1) DEFINITIONS.—In this subsection, the

13 terms ‘‘hazardous substance’’, ‘‘pollutant or con14 taminant’’, ‘‘release’’, and ‘‘response’’ have the

15 meanings stated in section 101 of the Comprehen16 sive Environmental Response, Compensation, and

17 Liability Act of 1980 (42 U.S.C. 9601).

18 (2) IN GENERAL.—A contractor under a con19 tract under subsection (a) or a subcontractor of the

20 contractor shall not be liable under Federal, State,

21 or local law for any injury, cost, damage, expense,

22 or other relief on a claim by any person for death,

23 personal injury, illness, loss of or damage to prop24 erty, or economic loss caused by a release or threat25 ened release of a hazardous substance or pollutant
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1 or contaminant during performance of the contract

2 unless the release or threatened release is caused by

3 conduct of the contractor or subcontractor that is

4 negligent or that constitutes intentional misconduct.

5 (3) REPOSE.—No action (including an action

6 for contribution or indemnity) to recover for damage

7 to real or personal property, economic loss, personal

8 injury, illness, death, or other expense or cost aris9 ing out of the performance under this section of a

10 response action under a contract under subsection

11 (a) may be brought against the contractor (or sub12 contractor of the contractor) under Federal, State,

13 or local law after the date that is 6 years after the

14 date of substantial completion of the response

15 action.

16 SEC. 102. PREFERENCE AND ECONOMIC DIVERSIFICATION

17 FOR COMMUNITIES AND LOCAL RESIDENTS.

18 (a) DEFINITION.—In this section, the term ‘‘qualify19 ing Department of Energy site’’ means a site that contains

20 at least 1 current or former Department of Energy de21 fense nuclear facility for which the Secretary of Energy

22 is required by section 3161 of the National Defense Au23 thorization Act for Fiscal Year 1993 (42 U.S.C. 7274h)

24 to develop a plan for restructuring the work force.
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1 (b) PREFERENCE.—In entering into a contract or

2 subcontract with a private entity for products to be ac3 quired or services to be performed at a qualifying Depart4 ment of Energy site, the Secretary of Energy and contrac5 tors under the Secretary’s supervision shall, to the maxi6 mum extent practicable, give preference to an entity that

7 is otherwise qualified and within the competitive range (as

8 determined under section 15.609 of title 48, Code of Fed9 eral Regulations, or a successor regulation, as in effect

10 on the date of the determination) that plans to—

11 (1) provide products and services originating

12 from communities within 25 miles of the site;

13 (2) avert, to the maximum extent practicable,

14 the dismissal of employees employed by the Depart15 ment of Energy or its private contractor at the site,

16 and protect, to the maximum extent possible, the

17 continuity of service and benefits of such employees;

18 (3) hire residents living in the vicinity of the

19 site, especially residents who have previously been

20 employed by the Department of Energy or its pri21 vate contractor at the site, to perform the contract;

22 and

23 (4) invest in value-added activities in the vicin24 ity of the site to mitigate adverse economic develop-
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1 ment impacts resulting from closure or restructuring

2 of the site.

3 (c) APPLICABILITY.—Preference shall be given under

4 subsection (b) only with respect to a contract for an envi5 ronmental management and restoration activity that is en6 tered into after the date of enactment of this Act.

7 (d) TERMINATION.—This section shall expire on Sep8 tember 30, 1999.

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