ML20236E431
| ML20236E431 | |
| Person / Time | |
|---|---|
| Issue date: | 04/25/1989 |
| From: | Flack E NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20236E425 | List: |
| References | |
| REF-QA-99990004-890425 89-582-01-SC, 89-582-1-SC, EA-87-223, NUDOCS 8905040137 | |
| Download: ML20236E431 (6) | |
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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
In the Matter of Docket No. 9999004 ;
(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 l ASLBP No. 89-582-01-SC i TESTIMONY OF EDWIN D. FLACK RESPONDING TO QUESTIONS RAISED BY THE !
LICENSINGBOARDONREVOCATIONASAREMEDY1/
Ouestion 1 Under the Staff's revocation order, what is the time period under ;
which the Licensees' general licenses would remain revoked? Because a person need hot apply for the right .to utilfre a general license, how would the Licensees regain authority to operate under a general license, assuming they were to satisfy all the stated criteria? Does the revocation in effect constitute an indefinite blacklist? How broadly ,
would the revocation order permeate through Mr. Larsen's various j organizations? (Tr. 33-36.) -
l Answer j The time period under which Mr. Larsen's general licenses will remain j revoked is indefinite. As stated in my testimony and Dr. Spitzberg's testimony, the U.S. Nuclear Regulatory Commission (NRC) considers that Mr.
Larsen's activities should only be conducted under a specific license, !
with adequate controls, as specified in Dr. Spitzberg's testimony.
Furthermore, Mr. Larsen's actions have raised questions about Mr. Larsen, individually, and about hit et.,,..nes' fundamental trustworthiness and I
ability to comply with NPr Nguirements. Therefore, NRC will only 1/ Prehearing Conference Order, dated March 1, 1989.
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H consioer licensing Mr. Larsen's' activities under a specific license with adequate controls, oversight, and supervision by a individual or organization qualified in the radiation safety aspects of uranium processing. ]
. Question 2 !
What is the relationship in this case of the proposed revocation ;
remedy to the criteria set forth in 10 C.F.R. Part 2, Appendi:: C? (Tr. l t
36-37)
- a. Into what severity category (App. C. Supp. VI) do each of the ;
asserted violations fall? i
- b. In this proceeding, are there circumstances within the meaning ;
of App. C(III) which would warrant an increase in the severity level of violations. See also App. C(V)C(3).
- c. May actions of Mr. Larsen or the Licensees be deemed to be
" willful", wit.hin the meaning of App. C(III) and (V)? (SeeIssueA.7.)
- d. To what extent, if any, is the Staff relying on past violations for which a penalty has already been assessed to support the revocation order (Tr. 37)? (See Issue A.12.) '
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Answer As stated in my testimony on pages.7 and 8 the Fboruary 25, 1988 l Order Suspending License was issued in accordance with Section V.C of the j Enforcement Policy, which states that Suspension Orders may be issued for various reasons, including: (a) to remove a threat to the public health and safety, common defense and security, or the environment; or (b) when a licensee has not responded adequately to other enforcement actions. The !
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! Order was made effective immediately, in accordance with 10 C.F.R. 6 2.202 of the Commission's regulations and Section V.C of the Enforcement Policy, ]
since it was determined by the Deputy Executive Director for Regional Operations that the public health, interest, and safety required this action, and since the actions of Mr. Larsen's fims involved wi11 fullness, l l
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.exatiples of flagrant NRC-identified violations, and repeated poor ]
y i performance in an area of concern. *
!Section V.B oi f the Enforcement Policy states that: "In cases ,
involving wi11 fulness, flagrant NRC-identified violations, repeated poor performance in an area;of concern, or serious breakdown in management controls. NRC intends to apply its full enforcement authority where such action is warranted, including issuing appropriate orders and assessing civil penalties for continuing violations on a~per day basis, up to the statutory limit of $100,000 per violation, per day." Furthennore, in Section VI of the Enforcement Policy, it states that "in serious cases v/here the licensee's actions in not correcting or providing information raise qut;* ions about its commitment to safety or its fundamental trustworthiness, the Comission may exercise its authority to issue orders modifying, suspending or revoking the license.
As stated in my testimony on page 10, the August 15, 198'8 Order Revoking Licenses.was issued in accordance with Section V.C of the -
Enforcement Policy, which states that Revocation Orders may be issued for various reasons, including: (a) when a licensee is unable or unwilling to comply with NRC requirements; or (b) when a licensee refuses to correct a violation. In addition, as discussed previously regarding the suspension of the licenses, revocation orders may be issued in serious cases where the licensee's actions in not correcting or providing information raise questions about the licensee'* comitment to safety or its fundamental trustworthiness.
Although the facts described in an NRC Order almost always constitute violations of various NRC requirements, the Order usually does not
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- I specifically, by delineation, cite violations or categorize violations into severity categories. Categorization of violations into severity categories is normally done only with the other basic enforcement sanctions, i.e., notice of violations and civil penalties. As stated in Section V.C of the Enforcement Policy Orders are issued to direct a licensee "to cease and desist from a given practice or activity; or to take such other action as may be proper."
As stated previously, the NRC staff concluded in its Orders that the actions of Mr. Larsen and his firms involved willfulness, as specified in Section III of the Enforcement Policy, which states that the "... tenn willfulness as used here embraces a spectrum of violations ranging from
~ deliberate intent to violate or falsify to and including careless disregard for requirements."
-In both the February 25, 1988 Order Suspending Licenses and the August 15, 1988 Order Revoking L'icenses, the NRC staff'took into consideration Mr. Larsen and 'his firms' past poor performance, which included: (1) Mr. Larsen's past enforcement history and noncompliance in 1982 under a general NRC license; (2) Mr. Larsen's past enforcement history and noncompliance in 1986 under a State of Utah's specific license; (3) Mr. Larsen's failure to fulfill commitments made on behalf of his firms to NRC and the State of Utah; (4) Mr. Larsen's contradictory statements to NRC and the State of Utah authorities; and (5) Mr. Larsen's firms processing uranium in an unsafe manner with inadequate controls and resulting contamination.
Question ?
What are the public health and safety implications, if any, of each of the alleged violations? Of all the alleged violations considered collectively? Are the alleged violations each considered to be equally serious for purposes of ascertaining an appropriate sanction? Is a 5 lb.
excess transfer as serious as a 61 lb. excess, for purposes of imposing sanctions? (Tr. 37-38.)
Answer As stated in the answer to Question 2, in Orders, NRC usually does not cite specific violations. However, the actions of a licensee are considered collectively, in Orders. As discussed in the answer to Question 2 and as stated in Sections V.E and VI of the Enforcement Policy, Orders may b'e issued "In cases involsing wi11 fulness, flagrant NRC-identified violations, repeated poor performance in an area of concern, or serious breakdown in management control"; or "... in serious cases where the licensee's actions.in,not correcting or providina information raise questions about its commitment to safety or its fundamental trustworthiness." Collectively, the actions of the licensee met these standards.
Question 4 The Staff should develop for the record its rationale for seeking revocation (the most severe sanction) rather than some lesser sanction o (Tr.38). Did the Staff give consideration to other sanctions--i.e.,
operation subject to specified conditions? If so, provide details. Would any other sanction have been appropriate?
Answer As discussed in the answer to Question 2 and in my testimony, Mr.
Larsen and his firms' past actions have involved willfulness, examples of flagrant NRC-identified violations, and repeated poor performance,
resulting in: (1) NRC issuing, on September 3, 1982, an Order to Show Cause and Order _ Temporarily Suspending License; (2) NRC issuing, on December 15,19EE, a Notice of Violation and Proposed Imposition of Civil Penalty; (3) the State of Utah, on November 5,1986, issuing an Order Suspending License (Effective Immediately) and Order Imposing Civil Monetary Penalties in the amount of $13,000; (4) NRC issuing Confirmation of Action Letters on November 12, 1987 December 8,1987, and December 21, 1987; and (5) NRC issuing, on February 25, 1988, an Order Suspending Licenses (EffectiveImmediately). Because of these past enforcement actions and because Mr. Larsen's actions have raised questions about Mr.
Larsen, individually, and about his companies' fundamental trustworthiness and ability to comply with NRC requirements, the NRC staff did not consider that any sanction other than revocation would appropriately protec- the public health and safety.
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