Text

Initial Decision (show-cause Proceeding).* Sustains in Part & Reverses in Part NRC 880818 Revocation Order & Suspends Licensee Operations Involving Chemical Processing Until NRC Evaluation.W/Certificate of Svc.Served on 891222
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Issue date:	12/22/1989
From:	Bechhoefer C, Kline J, Shon F; Atomic Safety and Licensing Board Panel
To:	;
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	CON-#190-9634, REF-QA-99990004-891222 89-582-01-SC, 89-582-1-SC, EA-87-223, LBP-89-39, NUDOCS 9001030108
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'89 DEC 22 P12:43 LBP-89-39 UNITED STATES OF* AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC. SAFETY AND LICENSING BOARD SCR's'ED DEC 2 2 %29 Before Administrative Judges:

v Charles Bechhoefer, Chairman s

Dr. Jerry R. Kline j

Frederick J.

Shon Docket No. 9999004 In the Matter of (General License Authority of 10 C.F.R.

WRANGLER LABORATORIES, S 40.22)

LARSEN-LABORATORIES, E.A.87-223 ORION CHEMICAL COMPANY AND. JOHN P. LARSEN ASLBP No. 89-582-01-SC December 22, 1989 INITIAL DECISION (Show-Cause Proceedina)

Annenrances

~

Mr. John-P. Larsen, Provo, Utah, for Wrangler Laboratories, Larsen Laboratories, Orion Chemical Company, and John P.

Larsen (Licensees)

Ann P. Hodadon. Esc. and Forman D.

Romney. Esc., for the United States Nuclear Regulatory Commission Staff 9001030100 891222 REQ 4 GA999 EX1 WRANG 99990004 PDR

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TABLE OF CONTENTS Psce OPINION................................................... 1 I.

BACKGROUND.....................................

4 II.

GOVERNING REGULATORY REQUIREMENTS 8

A.

Scope of General License Authority.........

9 B.

Revocation as a Penalty for License Violttions

................................. 16 III.

ALLEGED VIOLATIONS

............................. 19 IV.

REMEDY......................................... 24 V.

CONCLUSION..................................... 27 FINDINGS OF FACT AND CONCLUSIONS OF LAW 29 I.

FINDINGS OF FACT............................... 29 A.

Procedural Background...................... 29 B.

Nature of Licensees' Business.............. 33 C.

Identification of Witnesses 34 D.

Violations Alleged in Revocation Order..... 40 (1)

Exceeding 15 pound use or transfer limit............................... 40 (2)

Exceeding annual receipt limit 43 (3)

Exceeding purported 15 pound possession limit.................... 45 (4)

Violation of Utah suspension order.

46 (5)

Failure of facilities to include protective equipment................ 49 (6)

Urine sampling violations 51 (a)

Failure of Licensees to take urine samples.................

52 (b)

The data reporting issue 64 (c)

Will fulr4e s s.................... 67 11

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4..

(7)

ContaminatiQn of Wyoming facility..

73 (8)

History of continuing violations.... 76 E.

Penalties for Violations................... 81 II.

CONCLUSIONS OF LAW............................. 83 A.

Applicability of 10 C.F.R. Part 20 to the

-Licensees.................................. 83 B.

Possession Limits for-General Licenses Under 10 C.F.R. S 40.22

.................... 83 C.

Adequacy of Facilities and Qualifications of Personnel Under General Licenses 84 D.

Authority for Prohibiting Activities Under a General License

.......................... 84 ORDER................................................... 86 APPENDICES (Unpublished)

Appendix A:

List of Witnesses and Prefiled Testimony............................ A-1 Appendix B:

List of Exhibits..................... B-1 Appendix C:

Transcript Corrections C-1 O

iii

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t LBP-89-39 UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Jerry R. Kline Frederick J.

Shon Docket No. 9999004 In the Matter of (General License Authority of 10 C.F.R.

WRANGLER LABORATORIES, S 40.22)

LARSEN LABORATORIES, E.A.87-223 ORION CHEMICAL COMPANY AND JOHN P.

LARSEN ASLBP No. 89-582-01-SC December 22, 1989 INITIAL DECISION Show-Cause Proceedina OPINION This proceeding involves a challenge to an order issued 1

by the NRC Staff on August 15, 1988 (hereinafter Revocation Order), revoking the authority of Wrangler Laboratories, Larsen Laboratories, Orion Chemical Company, and Mr. John P.

Larsen (hereinafter collectively referred to as Licensees) to carry on certain activities involving depleted uranium 153 Fed. Reg. 32125 (August 23, 1988).

See Findings of Fact 1-2.

s-a r (DU) under a general license authorized by 10 C.F.R.

S 40.22.

The order was made immediately effective.

On September 2, 1988, the Licensees' filed a timely request for a hearing.

For reasons hereinafter sct forth, we are

. modifying the Staff's revocation action but permitting further operations only when subject to conditions of the type described herein (to which the Licensees have agreed),

2 We are reaching this conclusion with some reluctance, for we agree with the Staff that the Licensees have indeed carried on certain of their activities in a manner contrary not only to proper industrial practices but also to the public health and safety.

In our view, however, the standards with which the Staff is seeking to have the Licensees comply in many instances are not applicable to general-licensees.

Moreover, the Licensees do not appear to have intended to violate the rules; their violations appear to have been the result of carelessness and inexperience and, indeed, in some circumstances, a lack of knowledge of what courses of action they should have been following.

That being so, it is impermissible to revoke a general license--the most severe of the penalties which may be imposed for violation of the terms of a license--for violation of terms not appropriately imposed through such 2Tr. 356-57 (J. Larsen).

s.

o-l licenses, notwithstanding our agreement with the Staff that many of them are warranted for the nature of the operations that the Licensees seek to carry out.

In short, we agree with the Staff.that operations of the sort' carried out by the Licensees should not be 1

permitted under a general license.

But it is within neither the Staff's authority nor ours to subject activities falling within the authorization of a general license to conditions otherwise imposable only under a specific license.

Only the Commission can make that determination, and only through the-medium either of a revised rule (excluding the activity in question from the. general license authorization) or a waiver for the purposes of this proceeding (modifying the existing rule for purposes of this proceeding).

In the absence of a proper request for a waiver.or a record to support such a request, we strongly urge the Commission to initiate rulemaking proceedings to delete this type of activity from the general license authorization.3 We recognize that such

We have in mind a provisicn such as 10 C.F.R.

S 40.22 (c), which deletes from the general license authorization the admiristration of source material, or the radiation therefrom, to human beings.

This deletion was put into effect to prevent the use of Thorotrast, containing alpha-emitting thorium-232 dioxide, in humans without a specific license.

It resulted from an increase in knowledge on the radiobiological hazards of alpha-emitting radionuclides.

See 45 Fed. Reg. 55419 (August 20, 1980)

(" Deletion of Source Material Medicinals From the General License for Small Quantities of Source Material").

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i

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-4 a rulemaking may involve a lengthy proceeding, but had such a proceeding-been initiated in the early 1980's, when the need became apparent, a rule would now be in place.

I.

BACKGROUND (Findings 1-13)

The Licensees are firms which have been using source material under general licenses granted by the NRC pursuant.

to 10 C.F.R..S 40.22.

The owner and sole proprietor of each of these firms is Mr. John P.

Larsen, of Provo, Utah.'

According to the August 15, 1988 Revocation Order, as well as an earlier February 25, 1988 Suspension Order,5 the firms have been involved in the chemical processing of depleted uranium (DU).

When in operation, using a process developed by Mr. Larsen, the Licensees received slugs of DU, dissolved the material in nitric acid, precipitated uranyl acetyl acetate (UAA) by adding 2,4-pentanedione, dissolved the UAA precipitate in hot benzene, cooled the benzene to allow precipitation of purified UAA crystals, and then dried, ground, filtered, packaged and shipped the pure UAA product, for ultimate use as a catalyst in the production of Department of Defense munitions.

'Since the close of hearings, Mr. Larsen has moved to Orem, Utah.

553 Fed. Reg. 7452 (March 8, 1988).

This order also was made immediately effective.

See Finding of Fact 3.

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li -The Licensees have attempted to carry on these activities under the general license authorized by 10 C.F.R.

S 40.22.

That authorization in' general permits specified types of users-(including " commercial and industrial firms" such as are involved here) to "use and transfer" limited quantities of source material for "research, development, educational, commercial or operational purposes.

We will review the precise scope of the activities permitted by this authorization later in'this Opinion.

The Staff, through its Revocation Order, seeks to revoke the Licensees' authority to carry on their activities under a general license, as a result of a long history of alleged violations of the general license authority extending-as.far back as 1982.6 According to the Revocation Order, an August 23, 1982 inspection by the Staff'of Orion Chemical Co., Provo, Utah, uncovered a number of asserted violations, including possession of source material at one time in excess of the 15-pound limitation on such material, refusal to make records available to NRC, unauthorized disposal of DU, and failure to maintain complete records.

'The record reflects that there may have been violations at a Licensee facility as far back as November, 1979 (Staff Exh.

1, at Exhibit 5; J.

Larsen, ff. Tr. 342, at 3).

Because there was no reference to these earlier alleged violations in the Revocation Order, we are not reviewing or placing any weight on any such violations which may have occurred.

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As a result, the Staff issued a Show-Cause order temporarily suspending the general license authority.

Following corrective action, the Staff rescinded the Show-Cause Order but issued a' Notice of Violation and proposed civil penalty, which was paid on March 16, 1983.

Based upon these asserted violations, however, the NRC determined that Mr. Larsen's chemical processing activity should be conducted under a specific license, due to the potential-for contamination of workers and the environment.

Although the Licensees did not wish to operate under a specific-license, they were convinced (or pressured) by the Staff to take that course of action.7 A specific license (SUB-1436) was issued to Larsen Laboratories, Provo, Utah, in December, 1983.

When Utah became an Agreement State, it assumed responsibility for the specific license and reissued it on May 13, 1985.

Thereafter, as a result of violations, Utah suspended the license on November 5, 1986.

A settlement agreement was signed on January 15, 1987, under which Larsen Laboratories would comply with five specified conditions and pay a civil IJ. Larsen, ff. Tr. 342, at 3; Tr. 397-98 (J. Larsen).

Although we question whether the Staff, under regulations then extant, had authority to require that the Licensees operate under a specific rather than general license, that specific license is not within our jurisdiction, and we have no authority to rescind or alter it.

Whether or not the specific license was validly required, we must honor its existence and validity.

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penalty.

ThcLe conditions were that the Licensee (1) not receive or-use source material except to secure or transfer such source material in its possession, (2) dispose of e

radioactive wastes, (3)' decontaminate two facilities in the orem area, (4) move to approved production facilities, and i

(5) obtain a qualified radiation protection officer.

The Licensee paid the civil penalty but has not yet completed the last two of the five specified conditions.

The Utah license remains in existence, although suspended.

-Even prior to the suspension, the Licensees had been attempting to develop a new production facility.

During the early years of-control by Utah, they had operated in a series of temporary facilities.

They had purchased five acres of land in Lindon, Utah but found that they could not construct a facility because of the lack of an available sewer system.

Since that time, they have been allowed to build a storage-type facility and this year had electricity installed into the facility.s But they still have not been able to obtain.a sewer / water permit and hence have not been able to operate the facility for production purposes.

-Following suspension of their Utah license, the Licensees, who were unable to utilize the Lindon, Utah,

" Response to Revocation Order, dated December 26, 1988, ff. Tr. 350, at 4-5.

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l facility, next tried to carry out their activities in Wyoming, under an NRC general license.

They adopted this course of action in order to complete the processing of materials for a customer, which they believed they could'not accomplish under the Utah suspension order.

Before taking this action, Mr. Larsen contacted several NRC officials by telephone to ascertain its validity.'

The operations in Wyoming led eventually to the Suspension Order and Revocation Order.

To evaluate the validity of the Revocation Order being challenged, we must first turn to an analysis of what activities are permitted and what activities are not permitted by 10 C.F.R.

S 40.22, the general license authorization, and the type of regulatory infractions which properly may be used to invoke the severe remedy of license revocation.

II.

GOVERNING REGULATORY REOUIREMENTS There are two types of regulatory requirements which are applicable to this proceeding.

First, the general license authority establishes the substantive requirements which govern a general license.

Second, there are separate

'Mr. Larsen contacted two Staff officials--Messrs.

Michael A. Lamastra and Bruce Carrico--but in the Staff's view did not provide sufficient information to have received meaningful responses.

Tr. 312-14 (Flack).

See also Tr. 366-69 (J. Larsen).

47.

Dr. Spitzberg testified that, at the time of his inspection of November 4-5, 1987, there were no fume hoods, i

ventilation systems or filtration units at the Wyoming facility (spitzberg, ff. Tr. 101, at 7).

Mr. Larsen testified that the high volume air sampler and one lapel air sampler had only recently been purchased and had been used i

on November 11, 1987 and December 6, 1987 (Tr. 361-63).

Mr. Larsen further testified that the four new hoods were in addition to one "home-built" hood which had been put into use in Utah and later moved to Wyoming (J. Larsen, ff. Tr.

342, at 4; Tr. 399-405, 421 (J. Larsen)).

L (6)

Urine samoline violations.

L 48.

The Revocation Order asserts that Mr. Larsen's activities under the general license were conducted with a j

significant disregard for the safety of himself and his employees, and for the public health and safety, as indicated by the uranium tevels in the employee bioassay samples.

The Order further alleges that there was evidence of internal contamination of workers.

Revocation Order, at 4,

5; 53 Fed. Reg. at 32126.

Specifically, the personnel bioassay samples (i.e., urine samples) obtained by the Licensees by virtue of CALs imposed by the staff were

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alleged to have shown " unacceptably high uranium concentrations" (14., at 7; 53 Fed. Reg. at 32127).

49.

The Revocation Order also asserts that the Licensees violated various CALs with respect to urine sampling and reporting requirements.

specifically, the t

Licensees were alleged to have (1) failed to obtain baselino urine samples from two individuals, (2) failed to have submitted a-background sample, (3) failed to follow the prescribed urine testing schedule, and (4) failed to submit certain test results to Region IV, as required (Revocation Order, at 6; 53 Fed. Rag. at 32127).

(a)

Failure of Licensees to take urine samnles.

50.

As provided by NRC Manual Chapter 0400-05.07d, the NRC Staff utilizes Confirmation of Action Letters (CALs) where a problem requires immediate corrective action of a short-term nature and a licensee has agreed to take such action.

Following Dr. Spitzberg's November 4-5, 1987 t

inspection of Mr. Larsen's Wyoming facility, which revealed extensive facility contamination (see Finding 80, infra),

the Staff in quick succession issued three separate CALs dated November 12, 1987, December 8, 1987, and December 31, 1987.

Flack, ff. Tr. 91, at 6; Spitzberg, ff. Tr. 101, at 12, 15-16; CALs, ff. Tr. 102.

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' i 51.

The November 12, 1987 CAL effectively suspended the processing and receipt of licensed material after November 13, 1987 (Spitzberg, ff. Tr. 101, at 12; March 18, 1988 h

Response, ff. Tr. 348, at 13).

The CAL also required urine bionssays of Mr. Larsen and his employees for the determination of uranium content.

Included specifically was Mr. Bruce Noack, who in February, 1987 had produced a urine sample which showed concentrations above NRC guidelines (Spitzberg, ff. Tr. 101, at 12-13).

The CAL required, inter allA, a baseline sample.

(Baseline samples were to be taken from persons previously involved with some aspect of uranium processing, before they begin a new phase of work.)

Based on the results of the CAL, the Staff issued its further CALs dated December 8 and 31, 1987 (id., at 15-16).

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52.

The second CAL, issued December 8, 1987, required further urine samples from three individuals still working in the cleanup operation; and the third, issued December 31, 1987, required samples from Mr. Larsen and his son to be taken a.t three-day intervals until results of two consecutive samples were below 30 ug/l in uranium content.

That CAL al'so required Mr. Larsen to obtain background samples for quality assurance and because Mr. Larsen believed previous high bioassays were due to contamination of containers.

CALS dated December 8, 1987, and December y

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31, 1987, ff. Tr. 102; March 18, 1988 Response, ff. Tr. 348, at 16, 18.

(Background samples were to be taken from individuals known to be free of uranium contamination.)

53.

I' Mr. Larsen obtained and reported the results to NRC of most of the urine. samples required of him during the j

periods coverad by the three CALs.

However, he failed to L

obtain (or report to NRC) data for samples from himself u

L L

scheduled to be obtained on January 3 and January 6, 1988 l

l and for his son on January 6, 1988, as required by the December 31 CAL.

He also failed to obtain several baseline and background samples as ordered.

Spitzberg, ff. Tr. 101, l

at 17; March 18, 1988 Response, ff. Tr. 348, at 5; December 26, 1988 Response, ff. Tr. 350, at 3.

There is no material dispute between the Staff and Mr. Larsen as to whether the missing samples were collected or required.

54.

Mr. Larsen asserted for the first time at the hearing that he had obtained the January 3 and 6, 1988 samplesLbut discarded them without having them analyzed because he suspected his containers were contaminated (Tr.

523-28 (J. Larsen); Tr.161-64 (Spitzberg)).

Whether the samples were not taken, as alleged by the Staff, or taken but not analyzed, as asserted by Mr. Larsen, is immaterial to Board findings concerning the taking of urine samples i

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l i 4 because, in either' case, the objective of the December 31, 1987 CAL to obtain bioassay data was not fulfilled..

55.

The analyses of urine from Mr. Larsen and his employees showed that persons who worked at the Wrangler facility had internal contamination with uranium during the period ~of sampling.

Results are given in the following table (March 18, 1988 Response, ff. Tr. 348, at 14, 15, 17, 19-20):

+

i Nov Doc Dec Dec Dec Jan Jan Jan Jan 19 1

9 28 31 3

6 10 13 J.

Larsen 53 12 31 36 161

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<5 i

22 M. Larsen 41 26 80 63 59-282

<5

<5 B.

Noack 26 7

K.

Noack-46 45 10 14 (baseline)

Samples not collected and analyzed, as required by Dec. 31 CAL. (All analyses are reported in micrograms uranium per liter of urine, ug/1).

56.

Although we find that the Licensees were subject to the requirements of 10 C.F.R. Part 20, no violations of radiation standards have been alleged or found.

Standards for control of radiation effects from internal deposits of soluble uranium are far less stringent than those required for control of chemical toxicity.

Tr. 262, 266-67, 269-70 (Fisher).

No standards that specifically regulate chemical

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. l toxicity of DU from internal deposits are found in 10 C.F.R. Part 20.

But gf. 10 C.F.R. Part 20, Appendix B, Note 4.

57.

Chemical damage to kidneys is the most likely health hazard from internal uranium contamination (Fisher, ff. Tr. 98, at 4, 6;

Tr. 256-57 (Fisher)).

Uranium in j.

urine in excess of 60 ug/l is an indicator of possible kidney damage (Fisher, ff. Tr. 98, at 11-12).

The potential health hazard depends on the amount of uranium actually L

present and its time of residence; a threshold of kidney damage ~ occurs at about 3 ug of uranium per gram of kidney p.

tissue in prolonged exposure (id., at 4, 7-12).

There is

.about a 15 to one ratio of total uranium in kidneys (3 ug/g in kidney tissue corresponds to a total of 900 ug in kidneys u

- and 60 ug/l in urine) relative to concentration in urine; concentration in urine can be used as an indicator of concentration in kidney tissue (id., at 10-12).

The Staff used:30 ug/l in. urine as an action level to require enhanced monitoring and clean up at Wrangler Laboratory based on guidance given in Regulatory Guide 8.22, which is applicable principally to uranium milling operations but which was applied to the Wrangler workers by the Staff (Fisher, ff.

Tr. 98, at 4-12, 15-16; Tr. 238-39 (Fisher)).

There is no dispute between the Staff and Mr. Larsen as to the potential health hazards of elevated uranium in kidneys as indicated 1

.- by concentrations in urine or the appropriateness of the 30 ug/l action level used by the Staff based on applying the criteria of Reg. Guide 8.22.

Based on the foregoing and the analytical results obtained from urine sampling, the Board finds that the Staff had a valid technical basis for concern that a health hazard from internal uranium contamination existed for personnel working at Wrangler Laboratory in December, 1987 (Fisher, ff. Tr. 98, at 15).

58.

Mr. Larsen does not dispute that the samples.

. scheduled for January 3 and 6, 1988 should have been taken and analyzed but were not-(December 26, 1988 Response, ff.

Tr. 350, at 3; March 18, 1988 Response, ff. Tr. 348, at 5).

He-claimed in. defense that the samples were not analyzed because his previous sampling showed in his view that his sample containers were contaminated with uranium or some other fluorescent substance and this accounted for results

'in excess of 30 ug/l that were obtained in November and December (March 18, 1988 Response, at 5).

He delayed sampling on January 3 and 6, 1988, in order to obtain uncontaminated sample containers and upon receiving them resumed sampling on January 10 and 13, 1988 (March 18, 1988 Response, at 3).

Samples from himself and his son taken on both of those dates showed levels below 5 ug/l and his 1

l

. obligation for continued sampling under the December 31 CAL was therefore fulfilled (14., at 3-4).

59.

All required background or baseline samples were not taken in accordance with the November, 1987 CAL nor in the December 28-31 and January 3-6 sampling period.

However, a baseline sample was submitted for K. Noack in

. partial compliance with the CAL of November 12, 1987, and background-samples were submitted for Mr. Larsen and his son on January 10 and 13, 1988 (Spitzberg, ff. Tr. 101, at 14, 20).

Results from those samples were less than 30 ug/l (December 26, 1988 Response, at 3).

No others were taken, although Mr. Larsen had been ordered to obtain them for other workers in the November 12 and December 31 CALs.

Mr.

Larsen claims variously that the samples were not taken because of oversight, because for some workers they were unnecessary or because the analytical laboratory provided its own baseline samples.

March 18, 1988 Response, at 3; December 26, Response, at 2-3.

Mr. Larsen does not dispute that they should have been taken as required.

He conceded that background samples would have helped to resolve the question of whether his sample containers were contaminated (Tr. 468-69 (Larsen)).

The Staff ordered baseline and background samples for quality assurance and to link contamination of individuals to~ specific periods of work

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l (Tr. 331-32 (Spitzberg)).

The Staff did not assert a j

specific health reason for requiring baseline samples, however, and the Board finds none.

Tr. 230-35 (Fisher); Tr.

237-38 (Spitzberg).

The Board finds, however, that the need to monitor specific work practices and for quality assurance in sampling, particularly where Mr. Larsen made claims of extraneous contamination, was a reasonable basis for ordering background and baseline samples to be taken and that Mr. Larsen violated the CALs of November 12 and

- December 31, 1987-by not taking all of the required samples.

Fisher, ff. Tr. 98, at 14-15; Spitzberg, ff. Tr. 101, at 17, 60.

Uranyl acetyl acetonate (UAA) is an organic compound belonging to a class of compounds known to'be soluble in body fluids although its exact solubility either in vitro or in vivo has not been measured.

By analogy with other uranyl acetate compounds the Staff concluded that UAA is likely to be at.least partially soluble in body fluids.

Fisher, ff. Tr. 98, at 5; Tr. 263-64 (Fisher); Tr. 170-75 (Spitzberg, Fisher).

Uranium in soluble chemical forms is 4

rapidly excreted from the body through both urine and feces (Fisher, ff. Tr. 98, at 10, 13, Fig. 1).

The kidney burden of soluble uranium reaches an equilibrium with continuous intake but it declines quickly when intake stops (id., at 9-13; Tr. 267 (Fisher)).

Concentration in urine can fall to

i I

l i two percent of initial values within two days after the cessation of intake (id., at 13).

Because of the rapid y

turnover of soluble uranium in the body, a frequent urine sampling schedule is necessary to record the contamination history of an exposed individual (id., at 12-13; Tr. 180

. (Spitzberg); Tr. 252 (Fisher)).

61.

Rapid excretion of uranium occurred in two l

individuals.after January 3, 1988, when their exposure to-uranium had ended, and for K. Noack between December 1 and December 9, 1987 (Board Finding No. 55).

The rapid excretion tends to confirm that the Staff conclusion of at L

least partial UAA solubility in body fluids is correct (Tr.

173 (Fisher)).

Mr. Larsen's belief that UAA was insoluble 1:

L in-body fluids and that it would have internal persistence l

on the order of months was based on his perception of general UAA insolubility in his manufacturing process and not on biological evidence.

Tr. 176-77, 467, 470-71 L

(J. Larsen).

The rapid excretion of uranium by himself and others tends to demonstrate that his perception of biological insolubility was incorrect.

62.

The Board finds that the contamination data obtained prior to December 28, 1987 gave the Staff a reasonable technical basis for concern for the health and safety of Wrangler workers and for imposing requirements in

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~ he December 31, 1987 CAL to cease all operations and obtain t

urine samples from two persons on a three day schedule until concentrations fell to safe limits (Fisher, ff. Tr. 98, at 15).

The failuro to obtain three samples required by that L

CAL was a violation of an agreed requirement.

63.

The Board finds that the record of urine sampling as a whole does not support Mr. Larsen's belief that there was general contamination of samples from an extraneous source.

Three background or baseline samples that were taken were below action levels.

Extraneous fluorescent substances that can cause positive interference with uranium

. measurement and that seriously concerned Mr. Larsen are routinely destroyed chemically before-the uranium measurements are made, and they could not cause false results even if present initially.

Tr. 254-255 (Fisher).

Mr. Larsen was unaware of the pretreatment step for i

-fluorescent substances at the time he was taking urine I*

' samples and trying to obtain " clean" containers.

Tr. 471 (Larsen).

Moreover, as described in Board Findings 76-80, 1

L infra, the Wrangler Laboratory building showed general low-level contamination on initial and subsequent inspections, which could account for intake of uranium by workers even though NRC guidelines for surface contamination were not exceeded in most measurements (Spitzberg, ff. Tr. 101, at l

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. 5, 7; Attachment to Spitzberg testimony, ff. Tr. 102,

" Radiological Survey Results," January, 1988; Tr. 328 (Spitzberg)).

64.

While no other direct measurements of background exist, the trend of data from sequential sample measurements is helpful in determining whether there was contamination of samples (Spitzberg, ff. Tr. 101, at 12-13).

In this case, the trend of data for Mr. Larsen and other workers collectively supports a conclusion that there was variable periodic uranium intake by workers and-rapid response in urine concentrations that fluctuated closely with intake on a day to day basis.

The variation in urine concentrations in the November-December 1987 period reflected variation in uranium intake, not sample contamination.

Elevated uranium levels, sample variation over short time periods, and lack of operational spills, misled Mr. Larsen to conclude that personnel could not have contamination and that two different sets of sample containers were contaminated.

Tr.

527-36 (Larsen).

This view was supported by his prior erroneous belief that, because UAA was insoluble in water,'

it was also insoluble in body fluids.

Tr. 419, 466-68, 470-71 (J. Larsen).

65.

The record of urinalyses for Mr. Larsen and his son shows that the missing samples of January 3 and 6, 1988

.,4

. likely would not have provided information of practical.

significance to the health of the two individuals if they had been provided.

Assuming all cleanup operations (and further uranium intake) ceased as ordered on December 31, 1987, the contaminated individuals would have commenced a i

rapid excretion of their respective uranium body burdens.

Uranium levels would fall to about 2% of initial values in two days.

The missing samples would likely have shown significant1y' lower levels by January 6, which were confirmed in any event on January 10, 1988.

Tr. 175 (Fisher).

However, at the time the CAL was issued, the Staff had. uncertainty about the solubility and clearance rate of UAA and it could not know with certainty that the missing data would not be critical.

Tr. 179-81 (Fisher).

The Staff therefore had a reasonable technical basis for i

ordering that samples be obtained at three-day intervals.

66.

The samples collected on December 28 and 31, 1987, i

and on January 3, 1988 were sent to a commercial laboratory in a single batch on January 6, 1988.

The laboratory reported that some sample containers were leaking upon arrival and that the leaking samples might be contaminated.

The analyses were nevertheless performed.

March 18, 1988, Response, ff. Tr. 348, at 5.

The results for two samples are consistent with the possibility of contamination because

y.

l' i they stand as significant outliers to the otherwise generally consistent trend and range of analyses that i

reflected chronic periodic intake by the two individuals.

The two suspect samples show levels of 161 ug/l for J. Larsen on December 31 and 282 ug/l for his son on January.

3 three days after exposure ended (Board Finding No. 55).

The latter is an unlikely result for soluble uranium having high biological turnover.

Moreover, the dates of occurrence of peak values are inconsistent for individuals exposed l.

together.

However, whether the samples were contaminated or L

accurate cannot be determined now with certainty.

The Board j

i finds it unnecessary to pursue the matter because those samples have no practical health significance for the two j

individuals.

The high-biological turnover rate of soluble uranium would lead to a rapid return to safe levels even if i

the high levels were correct.

Mr. Larsen's concern that samples in that group might be contaminated had a factual foundation; however, the Staff could not know with certainty i

at the time the analyses were performed whether they were l

contaminated or not.

(b)

The data reportina issue.

1 67.

The CAL of December 31, 1987 required that Mr. Larsen report results of the urinalyses to the NRC Staff as he received them from the commercial laboratory

t

+

. (Spitzberg, ff. Tr. 101, at 17).

However, upon receiving the results'of the five samples of December 28 and 31, 1987, and' January 3, 1988, Mr. Larsen was upset by the hight concentrations and he concluded that his-concern for contaminated sample containers was confirmed (March 18, 1988-Response, ff. Tr. 348 at 5).

Under the belief that the results were spurious,-Mr. Larsen did not report them to NRC (id., at 17-21; Tr. 165 (J. Larsen)).

Subsequently, the.

January 10 and 13 samples showed less than 5 ug/l of uranium.

Because these samples were taken in containers thought to be free of contamination, the latest results confirmed to Mr. Larsen that his hypothesis of contaminated containers for previous samples was correct.

December 20, 1988 Response, ff. Tr. 350, at 3-4.

When first requested by NRC to report the results of urinalyses, Mr. Larsen reported only the low values on February 4, 1988 (Spitzberg, ff. Tr.

101, at 18-19; Tr. 169-170 (Spitzberg)).

68.

Mr. Larsen reported the higher values of December 28-31, 1987 under prompting from the NRC Staff on February 9, 1988 (Spitzberg, ff. Tr. 101, at 20-21).

When

-the Staff learned that other results showing high uranium concentrations had not been reported, it concluded that

'there had been willful noncompliance with the December 31, 1987' CAL by Mr. Larsen.

Tr. 194 (Spitzberg).

It was l

l l

i l1 l

e l

1 i

l immaterial to-the Staff that Mr. Larsen thought the high results were in error and should not be reported.

According h

to the Staff,-he was under obligation by the December 31-CAL t

to obtain and report the results of urinalysis on a l

prescribed schedule and he willfully failed his obligation.

~Even if some basis did exist for thinking the high results were inaccurate, the Staff felt entitled to scrutinize the data and reach its own independent conclusion as to its-L L

validity.

Tr. 194-97 (Griffin).

The samples not taken on L

January 3 and 6, 1988, and the failure to obtain background i

samples reinforced to the Staff that Mr. Larsen had L

willfully disregarded its orders (Flack, ff. Tr. 91, at 6-

' 10).

69.

'The Board finds that-the Staff was entitled to L

receive analytical results from all urine samples promptly after they were obtained by Mr. Larsen.

See 10 C.F.R. Part 2, Appendix-C, III.

Even samples suspected of being' contaminated should have been reported promptly, along with Mr. Larsen's explanation as to why he considered them invalid.

l 70.

Mr. Larsen's failures in his urine sampling efforts might have led to kidney damage in himself and his son had the chronic intake continued.

Tr. 383 (Fisher).

It is only through review of a now-complete record that we find that s

-.------mm.

a

-M e-

.lll' l

+

the missing samples likely had no significanc'e in preventing

.that outcome because the Staff had ordered that operations at Wrangler Laboratory be halted on December 31, 1987 and there was rapid biological excretion of uranium by the-two-individuals thereafter.

Mr. Larsen is not excused from his

~

obligation by our conclusion because the importance of the missing samples could not be known at the time the. failures occurred.

We agree with the Staff that it was imperative-for-the Licensee to give meticulous attention to detail and to assure that a complete and accurate urine sampling program be carried out. -When the program was not executed as ordered, additional action was appropriate. However, the Staff gave inadequate consideration to the role played by error in the failure and to the ultimate significance of the failed obligation when it chose revocation as a remedy.

10 RC.F.R. Part 2, Appendix C, V.E.

(c)

Wi11 fulness.

71.

The Board finds that Mr. Larsen's failures were not evidence of careless disregard of NRC regulations or of willful intent to violate NRC regulations.

Beginning with the November 12, 1987 CAL, Mr. Larsen made serious albeit i

defective efforts to obtain urine samples as ordered.

The record he generated was adequate for the Staff to assess the degree of contamination of himself and his workers and to

z---

E e

i V t conclude in the December 31, 1987 CAL that all operations at Wrangler Laboratory should be halted.

Mr. Larsen's belief 0

concerning the accuracy of samples was incorrect.

His unilateral determination not to obtain required samples and not to report suspect samples was based on multiple incorrect assessments and misapprehension of his regulatory obligations.

Nevertheless, reasons credible to Mr. Larsen existed-for not doing these things and,_even though factually-incorrect, they are sufficient to defeat a conclusion of willful violation of NRC requirements or of careless disregard of-regulations.

10 C.F.R. Part 2, Appendix C, V.E.

72.

_The record taken as a whole supports an alternative conclusion that Mr.'Larsen lacked critical knowledge and organizational capability that was needed to carry on a l

' business and effectively respond to multiple regulatory demands.

He handled both technical and business decisions L

alone as a sole proprintor.

He has not studied NRC l

regulations and does not understand them.

Tr. 428-436, 473 (J. Larsen).

He has only cursory training in the health physics principles and practice applicable to his business.

l l

Tr. 470-73; Tr. 537-41 (J. Larsen).

His situation was L

deteriorating because of "adversarial" enforcement actions, inability to construct a laboratory (see pp. 9-10, supra),

1 l

y p

b c

t 1 closure of Wrangler Laboratory, and adverse results from urine sampling.

Tr. 656-57-(S. Larsen); J.

Larsen, ff. Tr.

342, at 1-8; December 26, 1988 Response, ff. Tr. 350, at 4-l 6,

8.

The Board concludes that, while under stress and erroneous technical belief and judgement, he preferred to-believe his samples were contaminated rather than confront realistically the unwelcome information from urine sampling l

which could only add to his burdens.

73.-

Adding to his burdens was his unrealistic L

expectation of sympathetic instruction rather than citation from inspectors who discovered safety deficiencies or violations of regulations.

Tr. 480-81 (J. Larsen).

The l

Staff was unwilling to assist (Tr. 317-18 (Flack)).

His 1

i regulatory history shows that he learned of essential technical information and' regulatory requirements the "hard way," through repeated cycles of violation and citation rather than serious study of what was expected.and could be j

demanded of him (Tr. 473-76 (J. Larsen); Tr. 276-84 i

(Flack)).

Indeed, even the hearing on his license

(

revocation was a significant learning experience for him h

(Tr. 256, 465, 470-71,~473 (J. Larsen)).

While he understands his own process for making UAA and showed substantial insight in developing the process, his overall

o

technical knowledge and concern were limited (Tr. 453-58 (J. Larsen)).

j 74.-

The Board finds that Mr. L6rsen's manufacturing

]

operation was of submarginal adequacy regarding concept of-operations, facilities in which to conduct them, resources and equipment, and availability of reliable technical knowledge or advice.

The operation required too much of one person working alone if he was to cope with all his business 1

obligations while being held to all of the regulatory requirements demanded by the Staff.

J. Larsen, ff. Tr. 342, J

at 2-3; Tr. 365-66, 399-403, 408-09, 412, 425 (J. Larcan).

)

A result of this overburden is that Mr..Larsen perceived himself as under siege from the NRC staff and he suspected that it was biased against him.

J.

Larsen, ff. Tr. 342, at 8;

Tr. 380-81 (J. Larsen).

75.

The Board finds no evidence of Staff bias against Mr. Larsen and concludes that the Staff requirements for urine sampling were technically necessary and in accordance with NRC regulations.

Tr. 273-84 (Flack).

Requirements for bioassays were properly issued because Mr. Larsen's general

. license was subject to the provisions of 10 C.F.R. Part 20 by virtue of his possession of a specific license (suspended) in Utah.

10 C.F.R.

SS 20.108, 20.502, 40.22(b).

l i

1 o

ev.

, l Moreover, Mr. Larsen's manufacturing operation constituted a potential health hazard to Mr. Larsen and his employees.

76.

The Board finds that Mr. Larsen's troubles in the

- urinalysis episode arose from his incorrect expectations, j

assessments and lack of critical knowledge and inadequate resources-and facilities.

NRC regulations provide that a license may be revoked "(w] hen a licensee is unable or unwilling to comply with.NRC requirements."

10 C.F.R. Part 2, Appendix C, S V.C 3(a).

Mr. Larsen's assessment of his 1

situation was that he was unable to comply with all of NRC's requirements in spite of. substantial struggle to do so.

Tr.

365-66,-370 (J. Larsen); J.

Larsen, ff. Tr. 342, at 1-8.

His conclusion. applied generally to the problems of a small l

l

- business man in a demanding regulatory environment and specifically to his inability to obtain permission to construct a laboratory building and the consequent effects.

I Mr. Larsen freely acknowledged error whenever confronted with an alleged violation but pleaded inadequate capability l

and understanding throughout the proceeding as mitigating circumstances.

77.

The' Board finds that Mr. Larsen's self assessment was correct and that the Wrangler enterprise as a whole was (f

effectively too complex to be operated by one man with 1'

l limited equipment, resources and technical knowledge.

The l

1 l

l rer -

~

p

.'O k

i.

+

State of Utah apparantly sought to enhance essential i

organizational' capability when it imposed a requirement that

.3 Mr. Larsen obtain a radiation safety officer as a condition for lifting its suspension order.

The Staff acknowledged the possibility that Mr. Larsen was unable to comply with its requirements rather than being unwilling to do so (Tr.

289 (Flack))..It would consent to a specific license only if a third party were to supervise the= business (Tr. 185 (Flack)).

The Staff conclusion that chemical processing operations such as those engaged in by the Licensees.should l

be conducted under a-specific license was technically l

L correct.

Tr. 288, 311-12 (Flack).

78.

The-Board finds that Mr. Larsen was unable to comply adequately with requirements imposed by the Staff because of inadequate technical qualifications and resources within his company.

Where there are violations of L

sufficient severity, that finding could be grounds for L

revocation of a specific license, under requirements imposed by 10 C.F.R.

SS 40.32 (b), (c), and (d).

However, this case does not involve a specific license.

There are no NRC requirements for technical competence or institutional capability comparable to those listed above that a general licensee must meet.

Tr. 189 (Flack).

No license application or other demonstration of sufficiency are l

l L

E Li

'I

. i i

l required to obtain a general license.

Under the current regulations, Mr. Larsen's lack of technical qualifications and institutional capability are not violations of 10 C.F.R.

S 40.22 and could not serve as the basis for denial of a license initially.

Accordingly, the Doard finds that, although the failures in the urine sampling program occurred as alleged by the Staff, they occurred because of a misunderstandin.; and inability of the Licensee to comply with NRC requirements.

NRC rules do not provide for the sanction of revocation of a general license on the grounds of lack of. technical and institutional capability and the-violation of requirements on those subjects, which are not applicable to general licenses.

(7) contamination of Wyomine Facility.

79.

The Revocation Order charges the Licensees with an apparent use of inadequate controls (at the Evanston, Wyoming facility) that resulted in facility contamination exceeding NRC guidelines (Revocation order, at 5; 53 Fed.

Reg. at 32126).

Examples of " internal contamination of workers," as set forth in Finding 55, supra, and data from various contamination surveys, as described in Findings 80-84, infra, are relied on for this charge.

80.

The referenced guidelines are " Guidelines for Decontamination of Facilities and Equipment Prior to Release I "

h

Le.

,. i for Unrestricted Use or Termination of Licenses for i

Byproduct, Source, or Special-Nuclear Material," NRC, July 1982 (Radiological Survey Results, Table 1, attachment to CAL 88-02, dated March 18, 1988,-Docket 99990004/87-04, ff.

Tr. 102; Spitzberg, ff. Tr. 101, at 22).

As set forth in the opinion section of this Decision, these standards are I

regulatory guidelines and do not have the force of i

regulatory requirements.

81.

Surveys:for possible contamination of the Wyoming facility were performed on November 4-5, 1987, by Dr. Spitzberg, and on January 19-20, 1988, by Oak Ridge Associated University (ORAU), as contractor for NRC Region IV.

The November,_1987 survey for alpha contamination showed levels above NRC guidelines in three areas.

That survey also showed low-level contamination below NRC guidelines throughout the facility.

No contamination was

'shown outside the facility.

The Staff regards these i

findings as consistent with the later findings of the ORAU survey.

Spitzberg, ff. Tr. 101, at 5.

82.

Specifically, the ORAU survey, through surface scans, identified seven small isolated floor areas of elevated direct beta-gamma radiation (three of which appear in the table set forth below).

No elevated radiation levels were identified on wall surfaces.

Radiological Survey

,. Results, attached to CAL dated March 18, 1988, at 3.

83.. A summary of surface contamination measurements on floor _ grid blocks is as follows:

2 Grid-Total contam. (dem/100 cm )-

Removable contam.(don /100 Blocks N

Aloha Beta / Gamma Aloha Beta-Average Max.

Average Max.

A,0 210 440 2500 5150 5

18 A,4 790 1100 3700 7030 45 80 B,2 490 790 5080 16400 61 130 B,5 570 870 2150 2850 9

13 B,8 580 870 6530 7940 3

18 D,2 240 290 3580 5730

<2 6

D,6 320 570 4120 6550 5

15 E,0 230-1350 1620 3030 9

18 E,8 230 590 4720 8180

<2 12 F,4 190 370 2780 3150

<2

<4 F9 110-270 6190 9090 21 31 NRC GUIDE 5000 15000 5000 15000 1000 1000 Id., at Table 1 (emphasis supplied).

84.

The ORAU survey expressed the opinion that the beta-gamma measurements are more representative of the true surface contamination levels and it recommended use of these data for comparison.-with guidelines, rather than the alpha data '(jd., at 3).

With respect to the grid blocks listed in Finding 83, the beta-gamma measurements revealed three measurements above the average-contamination guideline and only one above the maximum-contamination guideline.

The ORAU survey concluded that there were three grid blocks and two additional small areas on the floor having residual l

i ici contamination levels in excess of NRC guidelines, as well as seven pieces of equipment and several' supply items also

. contaminated above release limits (id., at 4).

Chemical spills giving rise to contamination are demonstrated by Staff Exhs.

9, 11 and 16.(Tr. 126, 129, 133 (Spitzberg)).

85.

The-Board finds that, based on the above measurements, the Wyoming facility exhibited contamination 1

(

levels which exceeded NRC guide levels in certain areas and, L

in general, reflected low-level contamination in other surveyed areas.

No showing has been made that the-demonstrated contamination levels resulted in a violation of n

L the dose standards of 10 C.F.R. Part 20.

Because the 1.

contamination guides do not represent regulatory requirements, and because there are no contamination levels L

governing facilities operating under general licenses, the l

demonstrated contamination does not in itself represent a

' violation or-violations of regulatory standards for which a penalty may be imposed.

I (8). History of continuine violations.

86.

As bases for license revocation, the Revocation Order relied not only on recent violations but on a history

~

of violations extending as far back as 1982.

Specifically, the Revocation Order first pointed to an August, 1982 inspection, during which the NRC determined that the l

l

s

, I Licensee (Orion Chemical Co., one of the Licensees in this

)

proceeding) was in violation of "several regulatory requirements."

Those violations were asserted to include possession of source material at one-time in excess of the 15-pound limitation on such material, refusal to make records available to NRC, unauthorized disposal of DU (depleted uranium), and failure to maintain complete records.

Revocation Order,-at 2; 53 Fed. Reg. at 32126; Staff Exh.

1, at Exhibit 1, pp. 2-3; Flack, ff. Tr. 91, at 5.

87.

As a result of those asserted violations, the NRC on September 3, 1982 issued an Order to Show cause and Order 1

Temporarily suspending License (Effective Immediately) (Staf f Exh.

1, at Exhibit 1).

On October 25, 1982, based on the Licensee's promised corrective actions, the NRC issued an Order Rescinding Order to Show Cause and Order Temporarily i

Suspending License (Staff Exh.

1, at Exhibit 2, and. Staff-Exh. 1A).

Thereafter, on. December 15, 1982, the NRC issued a Notice of Violation (NOV) and Proposed Imposition of Civil Penalty for the aforementioned violations in the amount of

$500 (Staff Exh.

1, at Exhibit 3).

On March 11, 1983, the Licensee filed a response to the NOV and paid the proposed i

civil penalty (Staff Exh.

1, at Exhibit 4).

88.

The Staff takes the position that the Licensee (i.e., Orion Chemical Co), in its March 11, 1983 response, admitted the four violations and expressed the intent not to l

l 1

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. s'

,o i

h

violate any. regulations in the future (Staff Prop. F0F, $

14)..Although technically accurate, we do not regard three of the four so-called admissions as matters which-can be considered-adverse to the Licensees in this proceeding, for the reasons which follow.

89.

The Licensee stated that it did not deny the allegation of having more than 15 pounds of source material at one time.

As we concluded in the opinion section of this

?

Decision, however, the possession of more than 15 pounds at one time does not, in itself, constitute a violation of the 1

y general license authorization.

For this reason, this alleged violation is not considered adverse to the Licensees in this proceeding.

90.

The Licensee ~ stated that it did not deny the allegation of not making records available to NRC but it i

denied having " refused" to do so.

Mr. Larsen explicitly denied the statement in the OI Report (Staff Exh.

1, at Exhibit 5; Tr. 279 (Flack)) that he had refused to produce the documents because they were'" proprietary" (Tr. 392-93 (J. Larsen)).

The Licensee explained that the records were "at different places when the inspector arrived" and were not "together in any one place."

Also, the records were explained as needing updating.

The Licensee offered to make the records available the next morning, but the inspector l

l l

1

.a~,r

-w

+ - - - - -

.y l

E.

t stated that he needed them immediately.

Staff Exh.

1, at Exh. 4; Tr. 391-93 (J. Larsen).

91.- There is insufficient record support for us-to find that the Licensee " refused" to make records available.

The author of the statement in Staff Exh.

1, Exhibit 5 did not t

testify, and we are unwilling to evaluate the credibility of that statement against the sworn statements of Mr. Larsen.

92.

We find, however, that he was unable to make records available in a timely manner and hence was in violation of the requirements of 10 C.F.R. SS 40.61 and 40.62(b), which are applicable to general licensees.

Although this violation does not involve the willfulness of a " refusal," it nevertheless must be taken into account in assessing whether the general license should be revoked.

Since it is essentially the same violation as the fourth one listed here, it will be taken into account only once.

93.

With respect to'the allegation of " unauthorized disposal of DU," the Licensee acknowledged spillage outside the facility during the course of performing work, but it denied unauthorized disposal of compounds (Staff Exh.

1, at Exhibit 4).

We do not equate spillage with unauthorized disposal and find no evidence that the Licensee disposed of material in an unauthorized manner during the 1932-83 time frame.

To the extent that this allegation concerns improper

1t e.

7 s :

disposal, it cannot adversely be taken into account in the Revocation Order.

L

94. 'The Licensee acknowledged that it failed to

'A maintain updated records but indicated that it would improve its record-keeping.

This is essentially the same type of

-violation as the recording-keeping violation listed above and will be taken into account by us as one instance of an improper practice.

95.

Apart from the shipment violations discussed in Findings 36-40, infra, the history of violations was also l

. asserted to include other violations of the Utah specific i

. license that led to the Utah suspension order.

The Revocation order states that, on April 15, 1986, NRC received an allegation of-improper activities at Larsen Laboratories, and that this allegation was transferred to the State of_ Utah,_which performed inspections and found numerous violations.

Revocation Order, at 3;'53 Fed. Reg.

at 32126.

96.

The Revocation Order goes on to recite that Utah found five of the Licensees' facilities to be contaminated and that, at one of these facilities, contaminated liquids were leaking from drums that had been stored on a truck for approximately two years.

Revocation Order, at 3; 53 Fed.

Reg. at 32126; Staff Exh.

1, at Exhibit 6.

The State of

s s

- 81 p

Utah was never notified regarding the use of licensed i

material at.the five facilities, as required by the Utah i

license (Tr. 699-701 (Jones)).

As a result, Utah issued the suspension order that is still in effect, imposing conditions.on further operations (some of which have not yet, been satisfied) (see Finding 38, supra).

[

v 97.

The Licensees have raised certain questions concerning the events which led to the Utah suspension order (J..Larsen,. ff. Tr. 342, at 5).

We are making no independent findings with respect to whether any of the Licensees have violated Utah requirements or whether (apart from shipments, as set forth supra) tnose violations would constitute violations of NRC general-license requirements.

We note that, under a general license, a Licensee would not normally-be required to notify the licensing authority that licensed operations were being-carried on at a given facility, although certain records would have to be maintained concerning receipt or shipment of materials.

We accept the Utah suspension order as indicative that some violations occurred (albeit of Utah standards) and thus as, reflective of the Licensees' ability to comply with governing regulatory requirements.

a-v -

i

! i i

98.

The NkC Staff did not categorize the level of l

severity of any of the individual alleged violations which i

collectively led to the Revocation Order (Flack Response to Board Questions, at 2-4, Question 2).

In 1960., the Staff i

described the " receipt and use" of source raterial beyond the limits of 10 C.F.R. $ 40.22 as a Severity Level III (Supplement VI) violation, the alleged " refusal" to make i

records of transfer of source material available to an NRC i

inspector as a Severity Level IV (Supplement VI) violation, improper disposal of source material as a Severity Level IV (Supplement VI) violation, c.nd the failure to keep complete records of the receipt of source material as a Severity i

Level IV (Supplement VI) violation (Staff Exh.

1, at Exhibit 3, pp. II-36 and II-37).

The Staff described the "most significant" of the 1982 violations as those involving the receipt and use of excessive amounts of source material and the failure to make available records of source material l

transfer (id, at Exhibit 3, p. II-36).

L 1

99.

None of the proven violations as set forth herein N

individually rests the criteria of Severity Levels I or II' (Supplement VI).

We find that the most severe of any of the proven violations is Severity Level III (Supplement VI).

1

L,

. II.

CONCLUSIONS OF LAW A.

Annlicability of 10 C.F.R. Part 20 to the Licensees 1.

The proviso of 10 C.F.R. S 40.22(b) limits the exemption of general licensees from the requirements of 10 C.F.R. Part 20 to general licensees who are not in possession of source material under a specific license.

The exemption is r.ct applicable to the Licensees because one of them was in possession of source material under a suspended Utah specific license, which had been initially issued under 10 C.F.R..drt 40 at a time prior to Utah's becoming an agreement stata-The circumstance that the Utah specific license is suspended does not defeat the applicability to Licensees of the exemption limitation set forth in 10 C.F.R.

S 40.22(b).

2.

The Licensees in their operations under a general license are subject to the requirements of 10 C.F.R. Part 20.

B.

Possession Limits for General Licenses Under 10 C.F.R.

E 40.22 3.

The. general license authorized by 10 C.F.R. S 40.22 limits the "use and transfer" of source material at any one time by a general licensee to not more than 15 pounds, and it limits the " receipt" of source material by a general licensee to not more than 150 pounds in any one calendar 1

J, c'

= '

year.

The general license authorization places no limits on i

" possession" of source material, either at any one time or annually.

The legislative history which refers to a i

possible annual limit is not sufficiently clear to overcome j

i the clearly-stated language of the regulation as written.

l J

C.

Adasumev of Facilities and Oualification of Personnel Under a General License 1

4.

No regulatory requirement governs the adequacy of facilities or the qualifications or training of personnel under a general license authorized by 10 C.F.R. S 40.22.

The requirements of 10 C.F.R. $$ 40.32(b) (concerning qualifications of a proposed licensee) and 40.32(c)

(concerning adequacy of equipac7t, facilities and procedures) are applicable only to specific licenses.

D.

Antherity for Prohibitina Activities Under a General License 5.

In enacting a predecessor version of the general-license authorization currently appearing at 10 C.F.R.

S 40.22, the Commission determined that activities utilizing small quantities of source material, to the extent specifie'd therein, "can be conducted without any unreasonable hazard to life or property."

25 Fed. Reg. 4619 (September 7, l

1960).

5 f

~.

Io a

6.

Although the commission is generally authorized to issue orders establishing safety standards and modifying or revoking any license because of conditions which would warrant the refusal of an initial license or for violation of Commission regulations (see Atomic Energy Act of 1954, as amended, SS 161b, 1611, las and 187, 42 U.S.C.

SS 2201(b),

2201(1), 2236 and 2237), that authority does not authorize the Commission, through its Staff, to place additional restrictions on licenses beyond those determined by the Commission to be adequate in Rules governing such licenses i

(including general licenses).

Nor does that authority authorize revocation of a license for violation of L

regulations not governing the license in question.

1 l

7.

None of the Licensees' activities have been found to violate the standards of 10 C.F.R. Part 20.

The activities l

which have been shown to violate 10 C.F.R.

$ 40.22 do not l

represent significant violations of that regulation and are not sufficiently serious, absent any showing of intentional l

violation, to warrant the severe penalty of revocation.

0 l.

l-l l

o

, )

i j

QRDER l

i on the basis of the foregoing Findings of Fact, conclusions of Law and opinion, and the er. tire record, it

{

is, this 22nd day of December, 1989 ORDERED:

1.

The Staff's Revocation Order, dated August 18, 1988, i

g is hereby sustained in eart and reversed in eart.

2.

The Licensees shall not be permitted to carry on operations involving the chemical processing of DU under authority of 10 C.F.R. S 40.22 until the Staff determines that they have complied with conditions as described in Part IV of the opinion portion of this Decision.

3.

In accordance with 10 C.F.R.

SS 2.760, 2.762, 2.785 and 2.786, as amended, this Initial Decision shall become effective immediately and will constitute the final decision of the Commission thirty-(30) days after issuance hereof, subject to any review pursuant to the above-cited Rules of Practice.

4.

Any party may take an appeal from this Initial Decision by filing, within ten (10) days of service of this Decision, a Notice of Appeal with the Atomic Safety and Licensing Appeal Board.

Each appellant must file a brief supporting its position on appeal within thirty (30) days

U o-

, after filing its Notice of Appeal (forty (40) days if the staff is the appellant).

Within thirty (30) days af ter the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of, or in opposition to, any such appeal (s).

All i

briefs must be in substantial compliance with requirements as to form and content set forth in 10 C.F.R. S 2.762(d) and (e).

THE ATOMIC SAFETY AND i

LICENSING BOARD l

1 1, A u l' h $

Charles Bechhoefer, gpitirman

~

ADMINISTRATIVE JUDGE M

.pr. Jerry'R.Kline ADMINISTRATIVE JUDGE l

A

\\

A)

Frederick J. S ri ADMINISTRATI JUDGE Bethesda, Maryland I

December 22, 1989 e

b

k ti APPENDIX A List of Witnesses and Profiled Te11152;*iY l

Witness Direct Testimony Fisher, Darrell R.

Fisher, ff. Tr. 98 Flack, Edwin D.

Flack, ff. Tr. 91 i

Flack, Responding to Questions Raised by the Licensing Board on Revocation i

as a Remedy, ff. Tr. 92 Griffin, H. Brooks Tr. 103 (no prepared testimony; Professional Qualifications ff. Tr.

106)

Jones, Craig Tr. 660 (no prepared testimony; Professional Qualifications, ff. Tr.

660); narrative report of Deputy Dennis Harris, provided by Mr. Jones, ff. Tr. 667 Lamastra, Michael A.

Stipulation, ff. Tr. 209; Affidavit and Professional Qualifications, ff.

Tr. 210 l

Larsen, John P.

Tr. 124; Tr. 337; Larsen, direct i

testimony, ff. Tr. 342; Professional Qualifications, ff. Tr. 344; letter responding to Staff suspension order, dated 3/18/88, ff. Tr. 348;-letter responding to Staff revocation order, L

dated 12/26/88, ff. Tr. 350 Larsen, Sally Tr. 636 (no prepared testimony)

Noack, Kevin J.

Noack, ff. Tr. 559 Spitzberg, D. Blair Spitzberg, ff. Tr. 101 (Inspection Reports 99990004/87-04 and 99990004/88-21, and Confirr.ation of Action Letters dated 11/12/87, 12/8/87, 12/31/87, 3/1/88 and 3/18/88 supporting Spitzberg testimony, ff.

Tr. 102); rebuttal testimony, Tr. 710 A-1 l

l

o

.o

}

i APPENDIX B List of Fvhibits Identified Admitted HSA Descrintion gagg At Tr.

At Tr.

N.R.C.

Staff Fvhibits 1

Office of Investigations 8/23/88 103 114 Report 99990004/87-04, with attachments, together with letter from NRC to Dept. of Justice dated 8/23/88, and response from Dept. of Justice dated 10/20/88 1A Page omitted from 10/22/82 221 221 Staff Exhibit 1 2

Photograph:

outside of 11/4/87 114 351 Evanston facility 3-Photograph:

Evanston 11/4/87 114 351 facility with adjacent buildings 4

Photographs outside of 11/4/87 114 351 Evanston facility 5

Photograph:

close-up of 11/4/87 114 351 Evanston facility 6

Photograph:

inside of 11/4/87 114 351 Evanston facility 7

Photograph:

inside of 11/4/87 114 351 Evanston facility, with Mr. Larsen 8

Photograph:

inside of 11/4/87 115 351 L

facility, including space heater and storage rooms 9

Photograph:

inside of 11/4/87 115 351 L

Evanston facility, including buckets on top of bench B-1 T

~ _.

L :D w

o 1

Identified Admitted I

E2m Description Date At Tr.

At Tr.

N.R.C.

Staff Fvhibits (cont.)

10 Photographs inside of 11/4/87 115 351 Evanston facility I

11 Photograph inside of 11/4/87 116 351 Evanston facility, including stainless steel buckets 12 Photograph close-up of 11/4/87 116 351 bench inside Evanston facility 13 Photographs inside of 11/4/87 116 351 Evanston facility, including Dr. Spitzberg during his inspection 14 Photographs inside of 11/4/87 116 351 Evanston facility, with Mr. Larsen present 15 Photograph inside of 11/4/87 117 351 i

Evanston facility, with

)

Mr. Larsen and Dr.

spitzberg present 16 Photographs inside of 11/4/87 117 351 l

Evanston facility, with

)

Mr. Larsen present 17 Photographs inside of 11/4/87 117 351 Evanston facility Licensees' Exhibit 1-Proposed process 11/86 359

360, description for future Linden, UT facility B-2

7-.

O w

APPENDIX C Tranmeriet Corrections Eagg Lint Chance 123 23 "Spitzberg" to "J.

Larson" 152 6

"Becchoefer" to "Bechhoefer" 221 13 "8704" to "87-04" 225 17 Delete " JUDGE BECHHOEFER:"; combine remainder of line with statement on line 16 (of Dr. Spitzberg).

239 5

"new Reg. 08.74" to "NUREG 0874" 285 24 "OCG" to "OGC" 315 19 "BECHHOEFER" to "KLINE" 388 25 "that" to "than" 398 19 "becuase" to "because" 399 19 "otuside" to "outside" 711 6

"87.04" to "87-04" I

I i-1 C-1 1

L

w 0 e

UNITED STATES OF AMERICA C CLEAR RESULATORY COMMISSION in the Matter of I

I WRANGLER LAB., LARGEN LAB., CRION I

Docket No.(s) 9999004 CHEMICAL COMPANY AND JOHN P. LARSEN (General Lic. Auth. of 10 CFR 40.22 i

E.

A.87-223) i I

CERTIFICATE OF SERVICE l hereby certify that copies of the foregoing LB INIT!AL DECISION (LDP-89-39 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

\\

Atomic Esf ety and Licensing Appeal Administrative Judge j

Board Charle?

Bechhoefer Chairman U.S. Nuclear Regulatcry Cometslion Atomic Safety and Licensing board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 i

Administrative Judge Administrative Judge Jerry R Kline Frederick J. Shon Atomic Safety and Licensing Peard Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l

Washington, DC 20555 Washington, DC 20555 l

l 1

L John P. Larsen i

Office of the General Counsel Orion Chemical Comoany U.S. Nuclear Regulatory Commission 652 Ecuth. 850 East i

Washington, DC 20555 Oram. UT 84057

)

l i

a i

l Dated at Rockville Md. this

[

22 day of December 1999 Office of th ecretary of the Commission l

L L

1 l

l

-

ML20011D945

Text

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