ML20033F102
| ML20033F102 | |
| Person / Time | |
|---|---|
| Issue date: | 03/05/1990 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20033F103 | List: |
| References | |
| CON-#190-10014, REF-QA-99990004-900305 89-582-01-SC, 89-582-1-SC, EA-87-223, LBP-89-39, NUDOCS 9003160019 | |
| Download: ML20033F102 (22) | |
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UNITED STATES OF AMERICA
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.In the Matter of Docket No.. 9999004 c
(General: License Authority WRANGLER LABORATORIES, LARSEN of 10 C.F.R. 40.22)
LABORATORIES. ORION CHEMICAL COMPANY AND JOHN P. LARSEN E.A.87-223 ASLBP No.- 89-582-01-SC NRC STAFF BRIEF ON APPEAL-OF LBP-89-39 t
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Ann P. Hodgdon 4i Counsel for NRC Staff g<
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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'l Docket No. 9999004 In the Matter of lll of10C.F.R.40.22)
(GeneralLicenseAuthority WRANGLER LABORATORIES, LARSEN LABORATORIES, ORION CHEMICAL' COMPANY l l
' AND JOHN P. LARSEN E.A.87-223 ASLBP No. 89-582-01-SC NRC STAFF BRIEF ON APPEAL OF LBP-89-39 Ann P. Hodgdon Counsel for NRC Staff March 5, 1990 9
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i TABLE OF CONTENTS 4
PAGE
_ TABLE OF AUTHORITIES'...........................................
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.I.
INTRODUCTION 1
L'?
STATEMENT OF THE CASE 1
'III. STATEMENT OF FACTS.......................................
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.i LIV.
STATEMENT OF ISSUES ON APPEAL 3
V.'
ARGUMENTL 3
A.
The Licensing Board erred in concluding that Mr. Larsen's violations were merely technical a
and did not, therefore, merit the sanction of of revocation -imposed by the Staff in its immediately effective order
.............................. 3 1.
The Licensing Board's reading of 10 C.F.R. $ 40.22 is inconsistent with the wording of the regulation and with the Statement of Considerations 3
2.
The Licensing Board erred in redetermining final' dispositions of Staff actions on which the Staff's revocation order. depended for that order's finding of a history of-inability or unwillingness to comply with NRC requirements 8-
.i B.
The Licensing Board erred in failing to sustain the
- NRC Staff's revocation of Mr. Larsen's licenses 9
VI.
SUMMARY
AND CONCLUSION 14
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TABLE OF AUTHORITIES
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. REGULATIONS 10LC.F.R.-6 2,762'..........-.....................................
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'10 C.F.R.'PART 2, APPENDIX C 7, 9 110 C.F.R. PART 2, APPENDIX C Section V.C,(3)-
9-10!C.F~.R. PART 20 13 g
..................................... -13
?j 10 C F.R. 9 40.3 4
10'C.F.R.-6 40.20............................................... 4 10 C.F.R.' 9 40.22
-...................................... passim 10 C.F.R. 9 40.41 7
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i UNITED STATES OF AMERICA
' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 2
In the Matter of Docket No. 9999004 (GeneralLicenseAuthority WRANGLER LABORATORIES, LARSEN of10C.F.R.40.22)
LABORATORIES, ORION CHEMICAL COMPANY AND JOHN P. LARSEN' E.A.87-223 ASLBP No. 89-582-01-SC NRC STAFF BRIEF ON APPEAL OF LBP-89-39 1;
w I.
INTRODUCTION This matter is before the Atomic Safety and Licensing Appeal Board (AppealBoard)ontheappealoftheNRCStaff,filedpursuantto10C.F.R.
5 2.762, of the Atomic Safety and Licensing Board's (Licensing Board)
Initial Decision, LBP-89-39, NRC (1989).
II. STATEMENT OF THE CASE-On December 22, 1989, the Licensing Board issued an Initial Decision in which it modified the NRC Staff's Order of August 15,1988 (hereinafter Revocation Order), in which the Staff revoked the authority of Wrangler Laboratories, Larsen Laboratories, Orion Chemical Company and John P. Larsen to process depleted uranium under the general licensing authority of 10 C.F.R. 6 40.22.
l l-On January 2, 1990, the NRC Staff filed a Notice of Appeal.
III.
STATEMENT OF-FACTS The proceeding that resulted in the issuance of LBP-89-39 was initiated by an Order of the NRC Staff revoking the general licenses authorized by 10 C.F.R. 5 40.22 and used by John P. Larsen, Wrangler Laboratories, Larsen
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2 Laboratoates and Orion Chemical Company.See Wrangler Laboratories, Larsen Laboratories, Orion Chemical Company, and John P._Larsen, Provo, Utah; RevokingLicenses,(August 15, 1988) 53 fed.; R g 32125 (August 23'1988 Mr. Larsen, the sole proprietor of all of the firms named in the Order
, had-been engaged in the chemical processing of depleted uranium (DU).
Mr.
Larsen received slugs of DU, dissolved the material in boiling nitric acid precipitated uranyl acetyl acetate (UAA) using 2, 4 pentanedione, dissolved the UAA precipitate in benzene to produce recrystallfred UAA, and subsequently dried, ground, packaged and shipped the pure UAA product.
This activity was conducted under the authority of 10 C.F.R. 5 40.22, which grants a general license for the receipt, use and transfer of small amounts of source material.
- After a 1982 inspection of Mr. Larsen's facility in Utah, the NRC Staff
. issued an Order to Show Cause And Order Temporarily Suspending License (Effective _-Immediately), subsequently rescinded,1/ etailing a number of -
d violations of the general license authority of 6 40.22 Mr. Larsen agreed to conduct future activities under a specific license.
When Utah became an Agreement State, it assumed responsibility for Mr. Larsen's specific license. Utah suspended that license in 1986.
2/
In.1987, while his Utah license was suspended, Mr. Larsen conducted his Lactivities in Evanston, Wyoming. Wyoming is not an Agreement State. After 1~/
The rescission was based on Mr. Larsen's commitment to take specified corrective actions.
Temporarily Suspending"Ticense, OctoberSee Order Rescinding Order to Show C 27, 1982.
2/
On December 31, 19b2 Board Notification 90-01,the license expired while under suspension.
See s
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Laboratories and Orion Chemical Company.
See Wrangler Laboratories, Larsen Laboratories,' Orion Chemical Company, and John P. Larsen, Provo, Utah; Order i
Revoking Licenses; (August 15, 1988)'53 Fed h 32125 (August 23,1988).
Mr. Larsen, the sole proprietor of all of the firms named in the Order, had been engaged in the chemical processing of depleted uranium (DU). Mr.
Larsen received slugs of DU, dissolved the material in boiling nitric acid, precipitateduranylacetylacetate(UAA)using2,4pentanedione, dissolved
. the UAA precipitate in benzene to produce recrystallized UAA, and subsequently dried,- ground, packaged and shipped the pure UAA product'. This activity was conducted under the authority of 10 C.F.R. l'40.22,'which l
grants a general license for the receipt, use and transfer of small amounts of source material.
After a 1982 inspection of Mr. Larsen's facility in Utah, the NRC Staff issued an Order to Show Cause'And Order Temporarily Suspending License (Effective Immediately), subsequently rescinded,1/ etailing a number of d
violations of-the general license authority of 5 40.22. Mr. Larsen agreed to conduct future activities under a specific license. When Utah became an Agreement State, it assumed' respons'ibility for Mr. Larsen's specific 2/
license. Utah suspended that license in 1986.
In 1987, while his Utah license was suspended, Mr. Larsen conducted his
. activities in Evanston, Wyoming. Wyoming is not an Agreement State. After y
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The rescission was based on Mr. Larsen's commitment to take specified e rrective actions. See Order Rescinding Order to Show Cause and Order Ten:porarily Suspending License, October 27, 1982.
2/
On December 31, 1988 the license expired while under suspension.
See
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Board Notification 90-01.
- learning of Mr. Larsen's activities, the NRC performed an inspection there 1
- in' November, 1987.
Subsequent to that inspection, the Staff held an enforcement conference with Mr. Larsen during which he agreed to perform a 1
number of actions, an agreement that was commemorated in a number of J
Confirmatory Action Letters (CALs) being issued on November 12, 1987 and December 8 and 31, 1987. Slip op, at 53.
After Mr. Larsen failed to perform the actions scheduled in the'CALs, the'. Staff, on February 25, 1988, issued an insnediately effective Order Suspending Licenses. Mr. Larsen filed a response but did not request a 3
hearing. Letter dated March 18, 1988.
Following its evaluation of Mr.
Larsen's response, the Staff on August 15, 1988 issued the immediately i
effective revocation order.that is the subject of this hearing. Mr. Larsen filed a timely request for a hearing. The Licensing Board issued an Initial-
- Decision,.LBP-89-39, from which the Staff appeals.
IV. STATEMENT OF ISSUES ON APPEAL s
. A.
Whether the Licensing Board erred in concluding that Mr. Larsen's violations were merely technical and did not, therefore, merit the i
sanction of revocation imposed by the Staff in its insnediately effective order.
B.
Whether the Licensing Board erred in failing to sustain the NRC Staff's revocation'of Mr. Larsen's licenses.
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V.
ARGUMENT In reaching its decision in this matter, the Licensing Board improperly segmented the bases underlying the Staff's order. Then, through an incorrect interpretation of the applicable regulation and a view of the 4 V w
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i nature of Mr. Larsen's conduct that is inconsistent with the record, the Licensing Board found the sanction imposed unwarranted.
A.
The Licensing Board erred in concluding that Mr. Larsen's violations were merely technical and did not, therefore, merit the sanction of revocation imposed by the Staff in its imediately effective order.
Central to the Initial Decision is the Licensing Board's interpretation of the governing Comission regulation,10 C.F.R. I 40.22, an issue that the Licensing Board raised on its own initiative.
In interpreting 10 C.F.R.
I 40.22, the Licensing Board:
- 1) devised a reading of 10 C.F.R. I 40.22
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that is inconsistent with the wording of the regulation and with the i
StatementofConsideration;and2)useditsreadingof640.22toredeter.
mine prior Staff actions on which the Staff's revocation order depended with respect to the licensee's history of inability or unwillingness to comply 5
with NRC requirements.
1.
The Licensing Board's reading of 10 C.F.R. I 40.22 is inconsistent with the wording of the regulation and with the Statement of Considerations.
The Comission's regulations in 10 C.F.R. I 40.3 provide that no person subject to Part 40 shall receive title to, own, receive, possess, use, transfer or deliver source material, except as authorized in a specific or general license issued by the Comission.
Section 40.20 provides that general licenses are effective without f1iing of an application or issuing licensing documents to particular persons; specific licenses are issued to named persons upon application filed in accordance with Part 40.
10 C.F.R.
I 40.22 grants a general license for 'Small Quantities of Source Material:"
(a) A general license is hereby issued authorizing comercial and industrial firms... to use and transfer not more than fifteen (15) pounds of source material at any one time for...
comercial or operational purposes. A person authorized to use or transfer source material pursuant to this general license, may e----
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I not receive :n than a total of 150 pounds of source material in any one calet.Lar year, i
e (b) Persons who receive, possess, use or transfer source material i
pursuant to the general license issued in paragraph (a) of this section are exempt from the provisions of Parts 19, 20, and 21 of this chapter to the extent that such receipt, possession, use or transfer are within the ter:::s of such general license:
Providod. however. That this exemption shall not be deemed to apply ;o any such person who is also in possession of source material under a specific license issued pursuant to this part.
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The Licensing Board interprets i 40.22 as providing implicit auth6rity to " possess" source material without quantity limits.
Seg LBP-89-39, Slip op, at 12-15. The Staff disagrees that 10 C.F.R. 6 40.22 provides an l
implicit general license to possess source material, other than the authority to possess inherent in and coextensive with the authority to use, to transfer and to receive, which do have quantity limits specified in 10 C.F.R. 6 40.22.
The Statement of Considerations cited by the Staff in its Proposed Findings, which provides the history of that regulations is in accord with l
the Staff's reading and not with the Licensing Board's. Staff Proposed Findings, at 39-40. The Statement of Consideration reads:
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The proposed amendment would generally license the possession and use of up to 15 pounds of contained uranium or thorium or any combination thereof at any one time by certain classes of users This general license is subject to an annual possession limit of 150 pounds of contained uranium or thorium or any combination thereof. Under this provision many users of small quantities of uranium would be relieved of the necessity of obtaining a specific license....
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The Licensing Board's reading of this provision in the Statement of Considerations -- that it apper.rs to authorize " possession" generally and without limit and "use up to 15 pounds" (Slip op, at 14-15) is strained, creating ambiguities where none exist.
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L As part of the rationale for its interpretation of the rule, the Licensing Board cites the Comission's finding in promulgsting 10 C.F.R.
I 40.22 "that general source material license activities in the specified quantities can be conducted' without any unreasonable hazard to life or property'." Slip op. at 13. From this, the Licensing Board concludes that the " Staff cannot rely on public health and safety concerns to impose i.
additional public health and safety conditions." M.
The Staff disagrees. The Comission's finding in authorizing a general license for small quantities of source material, that such generally licensed activities "can be conducted without any unreasonable hazard to life or property" is not a Comission finding that there are no circumstances in which such activities cannot be abused or carried on in a manner that can give rise to public or occupational radiological safety concerns.
Moreover, in applying this determination, the Licensing Board ignores the predicate for the Comission's determination, which the Board itself has cited - activities limited to "specified" quantities; it is because of the limitation on quantity that these generally licensed activities were thought to be capable of being conducted safety. Thus, contrary to the Board's conclusion (at B), it was proper for the Staff to have found that Mr. Larsen violated i 40.22(a) by being in possession of material beyond the use limit and to have considered the health and safety implications of Mr. Larsen's activities.
The Licensing Board appears to conclude that because of the Comission's general overall safety conclusion reached in the rulemaking on the granting of general licenses, such activities are exempt from the a.
< Commission's authority to impose additional requirements to protect health and safety under 10 C.F.R. I 40.41 (Slip op. at 11) and are apparently shielded from any other authority of the Comission to assure public health I
and safety through any mechanism other than rulemaking. See Slip op, at 13
- 85. 3/
The Staff does not agree that the Commission is without authority i
except by rulemaking to correct problems found in the conduct of generally licensed activities. While a license may be generally authorized through rulemaking, these is no apparent limitation on the exercise of the Commission's authority to impose appropriate conditions and otherwise take enforcement action against specific, individual users of the general license authority when necessary to protect the public health and safety. Section 40.41 subjects all licenses issued pursuant to Part 40, be they general or specific, to requirements that may be imposed by order. See 10 C.F.R.
il40.41(a)and40.41(e).
Further, the Commission's Enforcement Policy, embodied in 10 C.F.R. Part 2, Appendix C recognizes informal regulatory actions such as confirmatory action letters as useful supplements to the NRC's enforcement 3/
It should be noted that the license condition imposed by the Board (Slip op. at 86) will have no operative effect. As described in the Staff's Board Notification 90-01, Mr. Larsen's specific license to operate in Utah has expired. Thus, the specific license proviso in 10 C.F.R. 40.22(b) to which the Licensing Board attached its condition will no longer have effect. Acccrdingly, the general license enjoyed by Mr. Larsen could not be conditioned under the Licensing Board's theory. As the Utah order is now a final order, as explained in the attached affidavit of Larry F. Anderson, the Appeal Board may and should take official notice of the facts in the order and the affidavit on which the Staff relies for its argument here.
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program. TheLicensingBoard'srejectionoftheforegoing(Slipop.at11),
l however, is unexplained and should be reversed.
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2.
The Licensing Board erred in redetermining final dispositions of Staff actions on which the Staff's revocation order depended for that order's finding of a history of inability or unwillingness to comply with NRC requirements.
In its proposed findings 84-86, the Staff discussed the testimony of l
record showing Mr. Larsen's unwillingness to fulfill his commitments, the
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NRC Enforcement Policy underlying the August 15, 1988 revocation order and 1
the conclusion that other enforcement sanctions havitig failed in the past, the Staff had concluded that revocation was necessary.
]
However, the Licensing Board dismantles the enforcement history on which the Staff based its findings with the following language:
With respect to the alleged history of violations, three of the four alleged 1982 violations may not be considered as adverse to the Licensees in this proceeding.
The first involves possession of more than 15 pounds of source material and does not violate applicable standards. Two others involve the availability of records and are essentially the same violation. A violation did i
occur with respect to records, but the asserted " refusal" to make l
records available was not proved, only an inability to do so in a timely fashion. The fourth, involving the unauthorized disposal of material, was not proved; the spillage of a small amount of material outside the facility does not, in our view, constitute unauthorized disposal. Slip cp. at 22.
It was error for the Licensing Board, particularly in the absence of a request by Mr. Larsen, to reopen the disposition of the 1982 show cause l
j order, as the settlement, by which Mr. Larsen admitted to the violations and the Staff agreed to rescind the order, was a final disposition. As such, the 1982-83 matter was not available to the Licensing Board for redetermination d_e novo.
Further, the Staff had no notice that the Licensing Board would form such an expansive view of its jurisdiction and, nothwithstanding the vague suggestion in the Licensing Board's March 1,1989
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9 Prehearing Conference Order, was not prepared to defend its 1982 order with the appropriate witnesses at the hearing in 1989. The Staff did not see the need to offer an in depth defense of an enforcement action that was undisputed and final in 1982 and was at the time of the hearing seven years j
old.
B.
The Licensing Board erred in failing to sustain the NRC Staff's revocation of Mr. Larsen's licenses.
Criteria for license revocation are set forth in 10 C.F.R. Part 2 Appendix C.Section V.C(3) and are relied on by both the Staff and the l
Licensing Board. M Sej, Slip op. at 18. These criteria include:
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(a) When a licensee is unatle or unwilling to comply with NRC requirements; (b) When a licensee refuses to correct a violation.
The Licensing Board also references the Enforcem*ent Policy as stating that suspension or revocation is normally imposed only for violations that are " willful." Slip op, at 17. Under Section III of the Enforcement Policy, wi11 fulness is defined as embracing "a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements."
l There are two principal bases for upholding the revocation of Mr.
Larsen's general license:
1)Thehistoryofrepeatedviolationsofquantity limits of his general license and of radiological monitoring and record l
requirements of his specific license, including those requirements made part 4/
The Licensing Board is incorrect in stating that Appendix C
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specifically denominates revocation as a penalty that may be imposed only for Severity Level I or II violations. Slip op. at 16-17.
o i of the general license by 10 C.F.R. I 40.22(b), and the history of repeated failure to correct deficiencies despite comitments to undertake corrective action reflected in CALs which demonstrate an unwillingness to comply with requirements and a " willful" violation amounting to a careless disregard for requirements; 2) even if one grants Mr. Larsen the benefit of all doubt on the matter of wi11 fulness, the record amply demonstrates, as reflected in the Licensing Board's findings, that Mr. Larsen is unable to comply with NRC requirements.
The Licensing Board found the Licensees' violations to be the result of carelessness. Slip op. at 2.
The Licensing Board agreed with Mr. Larsen's assessment that he (Larsen) was unable to comply with all of NRC's requirements.
FindingofFact76(FF76). El The Licensing Board also found that the Wrangler enterprise was too complex to be operated by one man with limited equipment, resources and technical knowledge. The Licensing Board found that Mr. Larsen was unable to comply with requirements imposed by the Staff because of inadequate technical qualifications and resources within i
his company (FF78). The Licensing Board also found that failures in the urine sampling program resulted from the Licensee's misunderstarding and I
inability to comply with NRC requirements. (FF78)
Notwithstanding that the Licensing Board's findings logically lead to the conclusion reached by the f
L Staff, the Licensing Board instead preferred to regard what the Staff found to be an attitude inconsistent with being an NRC licensee as merely l
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" mitigating circumstances." (FF76) The Licensing Board states:
"Mr. Larsen freely acknowledged error whenever confronted with an alleged I'
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The Licensing Board's Findings of Fact are referenced as FF.
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a violation but pleaded inadequate capability and understanding throughout the f
proceeding as mitigating circumstances. The Board finds that Mr. Larsen's self-assessment was correct."
(FF76,77).
j In addition to the above, the NRC Staff presented evidence showing that Mr. Larsen did not adhere to the commitments to the NRC in the form of f
Confirmatory Action Letters (CAls) and that he could not be relied upon to fulfill even the simplest of these commitments. The record is replete with j
the details of these failures..The Licensing Board found additional failures to meet CAL commitments in the following areas:
(1) failure to carry out the 3-day urine sampling program specified in the December 13, 1987, CAL (FF53);
i (2) failure to obtain baseline urine samples as required (FF53);
i (3) failure to obtain background samples as required (FF53);
(4) failure to report bioassay data to NRC as required (FF69).
Also, the Staff proved, but the Licensing Board did not address:
4 (5) the failure to perform lapel air sampling as required (Staff Proposed Finding 36),
i The Licensing Board gave insufficient consideration to the cumulative health significance of the failures and of Mr. Larsen's repeated failures to fulfill his commitments.
l The Licensing Board erred in failing to find that Mr. Larsen's violations and failures to fulfill commitments justified license revocation as a remedy.
The Licensing Board, substituting its own technical judgment for the evidence of record, found that Mr. Larsen's failure to continue the 3-day urine sampling schedule specified in the December 31, 1987 CAL had no l'
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! practical health significance for the two individuals (FF66) and, further.
discounted the significance of this failure (FF70). These findings appear j
to be predicated on the Licensing Board's conclusion that the missing l
samples likely had no significance in preventing possible kidney damage to Mr. Larsen and his son because operations at Wrangler Laboratory were halted on December 31, 1987 and there was rapid biological excretion of uranium by
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the two individuals thereafter (FF70). Further, the Board concluded that j
the two high urine samples of 161 ug/l for J. Larsen and 282 ug/l for his son, which preceded the cessation of sample collection, were significant outliers that were inconsistent for individuals exposed together (FF66).
These findings are not supported by the record and are, indeed, technically insupportable. Nothing in the record supports the Licensing Board's
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implicit finding that Mr. Larsen and his son were exposed together. The Licensing Board erroneously used this implicit finding to support its declaration that the two high urine sample results are significant 1
outliers"(FF66). The Staff testified as to the importance of the missing samples and noted an increasing trend in the samples prior to Mr. Larsen's discontinuing sampling.
(Tr.~179-182). M Consequently, the Licensing Board without any record basis should not have substituted its own judgment i
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The Board Notification of December 11, 1989 notifying the Licensing
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Board of uranium contamination found at Mr. Larsen's residence bears careful consideration with respect to the bioassay issues. This notification, among other things, raised the specter of Mr. Larsen's basement having been used as a uranium processing laboratory.
Mr. Larsen and his son, both of whom lived in the house during this time, may have been exposed either acutely or chronically at home, in addition to their exposure at the Evanston facility. Therefore, the assumption that all intakes had ceased as of December 31, 1987 may not, in fact, be true.
In any event, the record does not support the assumption.
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1 for that of the Staff's experts concerning the safety significance of stopping the urine sampling prior to obtaining sufficient data to analyze dosimetrically.
This matter becomes more important when considered in connection with the Licensing Board's findings that no showing was made that the radiation standards of 10 C.F.R. Part 20 were violated.
(FF56; Conclusion of Law 7).
The bioassay program imposed on Mr. Larsen's activities by the CALs was designed to yield data that would support a conclusion regarding the uranium intakelimitsspecifiedin10C.F.R.I20.103(a)(2).
In the absence of vital serial bioassay data that was to have been obtained, it was not possible to draw any conclusion regarding whether or not the dose limits of 10 C.F.R. Part 20 were exceeded. Staff's Proposed Finding 66.
The Licensing Board's conclusions concerning the two high bioassay samples of 161 ug/l for J. Lassen on December 31, 1987, and 282 ug/l for his son on January 3,1988, are not technically valid. The Licensing Board found that the results of the two samples were consistent with the possi-bility of contamination because the Licensing Board found them to stand as significant outliers to what it regarded as an otherwise generally consistent trend and range of analyses (FF66). The Staff believes this nonconservative assessment is unwarranted. Moreover, it is not based on any evidence of record.
The Licensing Board also concluded, however, that the record does not support Mr. Larsen's belief that there was general contamination of samples from an extraneous source (FF63). The record suggests that the samples L,
leaked in transit to the assay laboratory (Larsen, ff. Tr. 348 at 5). Thus, the Licensing Board's other findings rule out every possibility except that
4 " cross contamination" existed from one sample to another. There is nothing in the record to suggest that anything other than uranium was measured in j
the samples. Staff Proposed Finding 63.
The record-establishes that it is not possible for cross conthmination to result in either of two samples containing higher concentrations than the higher concentration present in the samples prior to cross contamination. Therefore, it is a virtual certainty that one of the samples in the leaking shipment contained at least 282 ug/l uranium. This is several times greater than levels indicating a potential for uranium in the body exceeding those generally considered to be safe. Staff proposal finding 59.
The Licensing Board's conclusions that the Licensees' urine sampling failures during this period had no practical health significance for the two individuals (FF66, 70) ignore the testimony of the Staff's expert witnesses regarding this matter.
VI.
SUMMARY
AND CONCLUSION The Licensing Board appears troubled by the severity of the penalty I
imposed by the Staff. But this case is not one where the Staff simply found violations and innediately proposed license revocation. The Staff's initial response to Mr. Larsen's operational misunderstandings and problems was not to revoke his general license but to seek his agreement to operate under a specific license, where conditions are much more clearly controlled. When further problems arose even under these conditions, the Staff did not recommend revocation but agreed to Mr. Larsen's comitments for corrective actions'. Only after Mr. Larsen again failed to live up to his commitments t
did the Staff suspend and then revoke his general license.
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The Appeal Board.should reverse the Licensing Board's Initial Decision as discussed above and should uphold the NRC Staff's Order Revoking License.
Respectfully submitted.
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WL Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland j
this 5th day of March, 1990 1
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