II

104TH CONGRESS

1ST SESSION S. 570

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 SENATE OF THE UNITED STATES

MARCH 16, 1995

Mr. GORTON introduced the following bill; which was read twice and referred

to the Committee on Armed Services

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. PRIVATIZATION OF WASTE CLEANUP AND

4 MODERNIZATION ACTIVITIES OF DEFENSE

5 NUCLEAR FACILITIES.

6 (a) CONTRACT AUTHORITY.—Notwithstanding any

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

8 more long-term contracts for the procurement, from a fa9 cility located within 25 miles of a current or former De-
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1 partment of Energy defense nuclear facility, of products

2 and services that are determined by the Secretary to be

3 necessary to support waste cleanup and modernization ac4 tivities at such facilities, including the following services

5 and related products:

6 (1) Waste remediation and environmental res7 toration, including treatment, storage, and disposal.

8 (2) Technical services.

9 (3) Energy production.

10 (4) Utility services.

11 (5) Effluent treatment.

12 (6) General storage.

13 (7) Fabrication and maintenance.

14 (8) Research and testing.

15 (b) CONTRACT PROVISIONS.—A contract under sub16 section (a)—

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

18 years;

19 (2) shall include options for 2 10-year exten20 sions of the contract;

21 (3) when nuclear or hazardous material is in22 volved, shall include an agreement to—

23 (A) provide indemnification pursuant to

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

25 (42 U.S.C. 2210(d));
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1 (B) indemnify, protect, and hold harmless

2 the contractor from and against all liability, in3 cluding liability for legal costs, relating to any

4 preexisting conditions at any part of the de5 fense nuclear facility managed under the con6 tract;

7 (C) indemnify, protect, and hold harmless

8 the contractor from and against all liability to

9 third parties, including liability for legal costs,

10 relating to claims for personal injury, illness,

11 property damage, and consequential damages;

12 and

13 (D) provide for indemnification of sub14 contractors as described in subparagraphs (A),

15 (B), and (C);

16 (4) shall permit the contractor (in accordance

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

18 commercial purposes a technology developed by the

19 contractor in the performance of the contract;

20 (5) shall not provide for payment to the con21 tractor of cost plus a percentage of cost or cost plus

22 a fixed fee; and

23 (6) shall include such other terms and condi24 tions as the Secretary of Energy considers appro25 priate to protect the interests of the United States.
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1 (c) PREFERENCE FOR LOCAL RESIDENTS.—In enter2 ing into contracts under subsection (a), the Secretary of

3 Energy shall give preference, consistent with Federal,

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

5 maximum extent practicable, residents of the vicinity of

6 the Department of Energy defense nuclear facility con7 cerned and to persons who have previously been employed

8 by the Department of Energy or its private contractor at

9 the facility.

10 (d) SUBSEQUENTLY ENACTED REQUIREMENTS.—

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

12 ‘‘applicable requirement’’ means a requirement in an

13 Act of Congress or regulation that applies specifi14 cally to activities described in subsection (a).

15 (2) INCREASED COSTS.—

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

17 contract under subsection (a) shall be exempt

18 from an applicable requirement that would in19 crease the cost of performing the contract that

20 is—

21 (i) imposed by regulation by a Fed22 eral, State, or local governmental agency

23 after the date on which the contract is en24 tered into unless the regulation is issued
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1 under an Act of Congress described in the

2 exception stated in clause (ii); or

3 (ii) imposed by an Act of Congress en4 acted after the date of enactment of this

5 Act, except an Act of Congress that refers

6 to this paragraph and explicitly states that

7 it is the intent of Congress to subject such

8 a contractor to the requirement.

9 (B) AMENDMENT OF CONTRACT.—In the

10 case of enactment of an Act of Congress de11 scribed in the exception stated in subparagraph

12 (A)(ii), the Secretary of Energy and the con13 tractor shall negotiate an amendment to a con14 tract under subsection (a) providing full com15 pensation to the contractor for the increased

16 cost incurred in order to comply with any addi17 tional requirement of law.

18 (3) REDUCED COSTS.—

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

20 contract under subsection (a) may elect to be

21 governed by a change in a requirement that

22 would reduce the cost of performing the con23 tract that is—

24 (i) adopted by regulation by a Fed25 eral, State, or local governmental agency
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1 after the date on which the contract is en2 tered into, unless the change is made pur3 suant to an Act of Congress that refers to

4 this paragraph and explicitly states that it

5 is the intent of Congress to continue to

6 subject such a contractor to that require7 ment, as in effect prior to the date of en8 actment of that Act of Congress; or

9 (ii) enacted by an Act of Congress en10 acted after the date of enactment of this

11 Act, except an Act of Congress that refers

12 to this paragraph and explicitly states that

13 it is the intent of Congress to continue to

14 subject such a contractor to that require15 ment, as in effect prior to the date of en16 actment of that Act of Congress.

17 (B) AMENDMENT OF CONTRACT.—In the

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

19 applied to a contractor that will reduce the cost

20 of performing the contract, the Secretary of

21 Energy and the contractor shall negotiate an

22 amendment to a contract under subsection (a)

23 providing for a reduction in the amount of com24 pensation to be paid to the contractor commen-
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1 surate with the amount of any reduction in

2 costs resulting from the change.

3 (e) PAYMENT OF BALANCE OF UNAMORTIZED

4 COSTS.—

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

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

7 structure, or utility, or depreciable machinery, equip8 ment, or material that is not supplied to a contrac9 tor by the Department of Energy.

10 (2) CONTRACT TERM.—A contract under sub11 section (a) may provide that if the contract is termi12 nated for the convenience of the Government, the

13 Secretary of Energy shall pay the unamortized bal14 ance of the cost of any special facility acquired or

15 constructed by the contractor for performance of the

16 contract.

17 (3) SOURCE OF FUNDS.—The Secretary of En18 ergy may make a payment under a contract term de19 scribed in paragraph (2) and pay any other costs as20 sumed by the Secretary as a result of the termi21 nation out of any appropriations that are available

22 to the Department of Energy for operating expenses

23 for the fiscal year in which the termination occurs

24 or for any subsequent fiscal year.

25 (f) LEASE OF FEDERALLY OWNED LAND.—
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1 (1) IN GENERAL.—Notwithstanding any other

2 provision of law, the Secretary of Energy may lease

3 federally owned land at a current or former Depart4 ment of Energy defense nuclear facility to a contrac5 tor in order to provide for or to facilitate the con6 struction of a facility in connection with a contract

7 under subsection (a).

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

9 paragraph shall be the lesser of—

10 (A) the expected useful life of the facility

11 to be constructed; or

12 (B) the term of the contract.

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

14 paragraph (1) shall—

15 (A) require the contractor to pay rent in

16 amounts that the Secretary of Energy considers

17 to be appropriate; and

18 (B) include such other terms and condi19 tions as the Secretary of Energy considers to be

20 appropriate.

21 (g) NUCLEAR STANDARDS.—The Secretary of En22 ergy shall, whenever practicable, consider applying com23 mercial nuclear standards to a facility used in the per24 formance of a contract under subsection (a).

25 (h) LIMITATION ON LIABILITY.—
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1 (1) DEFINITIONS.—In this subsection, the

2 terms ‘‘hazardous substance’’, ‘‘pollutant or con3 taminant’’, ‘‘release’’, and ‘‘response’’ have the

4 meanings stated in section 101 of the Comprehen5 sive Environmental Response, Compensation, and

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

7 (2) IN GENERAL.—A contractor under a con8 tract under subsection (a) or a subcontractor of the

9 contractor shall not be liable under Federal, State,

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

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

12 personal injury, illness, loss of or damage to prop13 erty, or economic loss caused by a release or threat14 ened release of a hazardous substance or pollutant

15 or contaminant during performance of the contract

16 unless the release or threatened release is caused by

17 conduct of the contractor or subcontractor that is

18 negligent or that constitutes intentional misconduct.

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

20 for contribution or indemnity) to recover for damage

21 to real or personal property, economic loss, personal

22 injury, illness, death, or other expense or cost aris23 ing out of the performance under this section of a

24 response action under a contract under subsection

25 (a) may be brought against the contractor (or sub-
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1 contractor of the contractor) under Federal, State,

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

3 date of substantial completion of the response

4 action.

5 SEC. 2. PREFERENCE AND ECONOMIC DIVERSIFICATION

6 FOR COMMUNITIES AND LOCAL RESIDENTS.

7 (a) DEFINITION.—In this section, the term ‘‘qualify8 ing Department of Energy site’’ means a site that contains

9 at least 1 current or former Department of Energy de10 fense nuclear facility for which the Secretary of Energy

11 is required by section 3161 of the National Defense Au12 thorization Act for Fiscal Year 1993 (42 U.S.C. 7274h)

13 to develop a plan for restructuring the work force.

14 (b) PREFERENCE.—In entering into a contract with

15 a private entity for products to be acquired or services to

16 be performed at a qualifying Department of Energy site,

17 the Secretary of Energy and contractors under the Sec18 retary’s supervision shall, to the maximum extent prac19 ticable, give preference to an entity that is otherwise quali20 fied and within the competitive range (as determined

21 under section 15.609 of title 48, Code of Federal Regula22 tions, or a successor regulation, as in effect on the date

23 of the determination) that plans to—

24 (1) provide products and services originating

25 from communities within 25 miles of the site;
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1 (2) hire residents living in the vicinity of the

2 site, especially dislocated site workers, to perform

3 the contract; and

4 (3) invest in value-added activities in the vicin5 ity of the site to mitigate adverse economic develop6 ment impacts resulting from closure or restructuring

7 of the site.

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

9 subsection (b) only with respect to a contract for an envi10 ronmental management and restoration activity that is en11 tered into after the date of enactment of this Act.

12 (d) TERMINATION.—This section shall expire on Sep13 tember 30, 1999.

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