Motion to Dismiss or Affirm — Silkwood v. Kerr-McGee Corp.
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No. 81-2159
Supreme Court of the United ;
OcTosBer Term, 1981
BILL M. SILK WOOD, Administrator of the Estate
of Karen G. Silkwood, Deceased,
Appellant,
VS.
KERR-McGEE CORPORATION, a Delaware corporation,
and KERR-McGEE NUCLEAR CORPORATION, a Dela-
ware corporation,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
MOTION TO DISMISS OR AFFIRM
TABLE OF CONTENTS
PAGE
STATEMENT OF THE CASE 0000.0.....cccccccsscecsceeeseeeneeenees l
The Tenth Circuit Opimion .0.............cccccccceeeeeeereeneeenee 2
AD ceciiincrniiarttmegrenenmnemememn 3
MOTION TO DISMISS
Appellate Jurisdiction Does Not Lie for This Ap-
Ly | aa 7
MOTION TO AFFIRM
A. This Court Should Affirm the Tenth Circuit's
Ruling That an Award of Punitive Damages
Is Preempted in This Case ..............ccccccccceeeeeeeee 9
The Tenth Circuit Correctly Held That the
Imposition of Punitive Damages Is Pre-
empted by the Atomic Energy Act................ 9
The Purpose Underlying the Price-
Anderson Act Is Inconsistent With an
Award of Punitive Damages......................... 14
The Tenth Circuit Opinion Does Not De-
prive Citizens of Any Common Law or
Constitutional Rights....0.......0.......cccccceseeeeeee 15
B. It Was Unnecessary for the Tenth Circuit to
Reach the Federal Preemption Issue Upon
Which the Appellant Relies Here for Jurisdic-
Bein ccenctiiisiinrerenataibcctatmagnsentzceneisiiimeanenees 17
C. There Are Additional Non-Federal Grounds
Which Preclude Any Punitive Damage
PED serece cnnsstnennessgsressiptcsmamesnesempinees 20
Compliance With “Relevant AEC Regu-
lations Precludes the Award of Punitive
ee 20
Punitive Damages May Not Be Awarded
Without Evidence of Malice or Wanton
ee ee 21
LES SE ee es ee 22
APPENDIX
il
TABLE OF AUTHORITIES
Cases
Baxter v. Continental Casualty Co., 284 U.S. 578
Dire eleinctiresssinidcnsiesssintensnnididiidigtattenieeniniatnlicmantiiinal
Brown v. Higby, 191 Okla. 173, 127 P. 2d 195
City of Mesquite v. Aladdin’s Castle, Inc., 102
es ee ee certininsecnsistericiactinnatbbitiitancneiniiasitins
Dearmore v. Gold, 400 F. 2d 887 ( 10th Cir. 1968)..
Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59 (1978) .......cccccccceesseeeeees
Flournoy v. Wiener, 321 U.S. 253 (1944) .......ccc..
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...
Gilbreath v. Phillips Petroleum Co., 526 F. Supp.
Gr Gear Se CE Ca i censeciiberesstiicnnnccesinnententeinne
Harrison v. Indiana Auto Shredders Co., 528 F. 2d
gt ON REIS Eee soe
Hobbs v. Watkins, 481 P. 2d 746 ( Okla. 1971).......
Illinois v. Kerr-McGee Chemical Corp., 677 F. 2d
hE ern E TE
International Brotherhood of Electrical Workers v.
Po AE nee
Kulko v. Superior Court of California, 436 U.S. 84
May v. Anderson, 345 U.S. 528 (1953) ......cccccccceeees
McCluney v. Jos. Schlitz Brewing Co., 102 S. Ct.
OE CU Petetenseesccrecncenievendincncstetssnnieseneciitiiieersrene
Minnesota v. Hoffman, 543 F. 2d 1198 (8th Cir.
1976), appeal dismissed for want of jurisdiction,
sub nom., Minnesota v. Alexander, 430 U.S. 977
CFE F Pececacinasmnccrenenigpintitiiggntiitiinatincndjuitianiiaitens
PAGE
—— el
ill
Misco Leasing, Inc. v. Keller, “90 F. 2d 545 (10th
Ge GORD clecpretinsedinentenseestnnreinticmesiteemenmiinens
Nader v. Allegheny Airlines, Inc., 426 U. S. 290
Nader v. Allegheny Airlines, Inc., 626 F. 2d 1031
Cee ee Fae Ge etccsencccescieninenesscinssesnesscenmmnesnscses
New York Telephone Co. v. New York Labor Dept.,
eee PO Ciciicrtnnnceiptinisiinilinitinpmetenntsen
Nixon v. Oklahoma City, 555 P. 2d 1283 (Okla.
Northern States Power Co. v. Minnesota, 447 F. 2d
1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035
Ti ichniienrnnittiacenatnatitinstrnghinieniniinetasseppicnipaen
Pacific Legal Foundation v. State Energy Resources
Conservation and Development Comm., 659
F. 2d 903 (9th Cir. 1981), cert. granted sub
nom., Pacific Gas & Electric v. State Energy
Resources Conservation and Development
Comm., 50 U.S. L. W. 3994 ( June 21, 1982)......
Rice v. Sioux City Memorial Park Cemetary, 349
Se PD cheihinsentetsitcecedbbdindittnbetnpiientresiennne
San Diego Building Trades Council v. Garmon, 359
TD ed icitinietnisaiiipennstinniniiaregtaiatnniinaiies
Schuman v. Chatman, 184 Okla. 224, 86 P. 2d 615
Fe cerenscenesioneestnenitneenianagemanaienmereimienernnene
Siegel v. AEC, 400 F. 2d 778 (D. C. Cir. 1968) ......
Silver v. Silver, 280 U.S. 117 (1929) ....cccccccccsessenees
Train v. Colorado Public Interest Research Group,
Re ee
PAGE
19
14
14, 20
16
13
11, 12, 14,
15, 16
iv
United States Constitution
PAGE
EEE es en 16
I SY aL 8
Statutes
RR LS: EEE aman ae e ee 6, 7,8
SG ERENT eT CORE 8
EAE RSSRE NCC eeu eo 9
inte iniinierercineriainenenciiniinisemaiinanseniiideenms 10
UIT cesehcirteetieiddetintnitpeitininmetinitiatenidanioennn 10
ke ae 10
ities ticinentndenietdiiitinienstiniiatenestitantnints 10, 11
ais ST ccenisteilitaicesicbinianaitiiiaeeenitiapanniniiaieiimmameatin 10
Se Pe i Tt hacrintciethcahircrncunnerseminiteibadimtariaptiinabintiat 14-15
es Br ineccicnestecteniininittinenintatinitinnmiaiiimaninss 17
SA TITLE ictin socnnceceniinntiiannnntnseiaenatatntaneeniasennts 7
TIE cn seacinianssctnecemmniapeiiiiincibiaeenitentiinatii 18
I ets caimeniitiieninntae 18
Legislative Materials
S. Rep. No. 820, 86th Cong., Ist Sess., 12 reprinted
in 1959 U.S. Code Cong. & Admin. News 2872. 10
S. Rep. No. 650, 89th Cong. Ist Sess. 4, reprinted
in 1965 U.S. Code Cong. & Admin. News 3209. 14
Hearings before the Joint Committee on Atomic
Energy on Federal-State Relationships in the
Atomic Energy Field, 86th Cong., Ist Sess.
Vv
Other Authorities
PAGE
Restatement (Second) of Torts § 908(1), Com-
I D cectiicceteatinrciticnssnentsmeinimen
Comment, Jmplied Preemption of Punitive Dam-
ages for Nuclear Accidents, 29 American U. L.
Sis Set TT Pixsiciahinceniednciscennitinetabigienibiniliaaeitiiin
Wall Street Journal, March 22, 1982.............cccceceeees
No. 81-2159
Supreme Court of the Anited States
OctToser TERM, 1981
BILL M. SILK WOOD, Administrator of the Estate
of Karen G. Silkwood, Deceased.
Appellant,
vs.
KERR-McGEE CORPORATION, a Delaware corporation,
and KERR-McGEE NUCLEAR CORPORATION, a Dela-
ware corporation,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
MOTION TO DISMISS OR AFFIRM
The appellees, Kerr-McGee Corporation and Kerr-McGee
Nuclear Corporation, respectfully move to dismiss this appeal
or affirm the judgment below of the United States Court of
Appeals for the Tenth Circuit.
STATEMENT OF THE CASE
The appellant’s misleading statement of the case necessi-
tates an additional explanation by the appellees of the decision
below by the Tenth Circuit and the underlying facts.
2
The Tenth Circuit Opinion
The Tenth Circuit held that the district court should have
granted the appellees judgment notwithstanding the verdict on
the personal injury claim, since the evidence supported only the
conclusion that Karen Silkwood’s exposure to plutonium in
November, 1974, occurred either at the job site or in prepara-
tion of a urine sample at the direction of her employer. Because
all exposures were job-related, the Tenth Circuit correctly held
that exclusive jurisdiction over the claim for personal injuries
was vested in Oklahoma’s Workers’ Compensation Court.’
After reversing the underlying compensatory award for
personal injuries, the Tenth Circuit reversed the punitive dam-
age verdict because exclusive regulatory authority over radi-
ation hazards is granted to the Atomic Energy Commission
[“AEC”] by the Atomic Energy Act of 1954. The court below
reasoned that since punitive damages were designed to punish
reprehensible conduct and to deter others from similar conduct
in the future, they had a regulatory effect. The Tenth Circuit
held that a judicial award of exemplary damages under state
law to punish or deter alleged unsatisfactory practices involving
exposure to radiation was no less intrusive than direct legisla-
tive regulation of radiation hazards by a siate and was,
therefore, preempted by federal law.
The court affirmed an award in the stipulated amount of
$5,000 for property removed from Silkwood’s apartment during
the decontamination process.
' The appellant does not challenge here the correctness of the
Tenth Circuit’s holding disposing of Silkwood’s personal injury claim
on state law grounds. Moreover, that decision is not subject to review
here. See, e¢.g., City of Mesquite v. Aladdin's Castle, Inc., 102 S. Ct.
1070 (1982); McCluney v. Jos. Schlitz Brewing Co., 102 S. Ct. 624
(1982) (Stevens, J. dissenting from summary affirmance); Baxter v.
Continental Casualty Co., 284 U. S. $78 (1931).
3
Statement of Facts
The appellant has set forth a slanted statement of facts,
which is largely irrelevant to the current posture of the case.
Within the constraints of brevity, the appellees shall correct a
few of the more flagrant aspects of the appellant’s statement
(from which all record references are omitted ).?
Karen Silkwood was a laboratory analyst employed by
Kerr-McGee Nuciear Corporation at its Cimarron plutonium
fuel fabrication facility. She was exposed to plutonium? on
November 5, 6, and 7, 1974.4
By selectively citing and inaccurately paraphrasing the
testimony of James Keppler, the regional director of the AEC,
the appellant attempts to create the misimpression of unsafe
Operations, asserting that the appellees were cited for over
seventy-five violations of AEC regulations and that AEC in-
spectors expressed harsh criticism of the Cimarron facility’s
2 Citations herein are to the: report of proceedings in the district
court (“R. _._”]; the appellant’s jurisdictional statement [“J. S.
—__._."]; the appendix to the jurisdictional statement [“J. S. App.
”); and the appendix to this motion [“A. ___”].
3 Plutonium is an artificially-produced, radioactive chemical ele-
ment (R. 726) which has been instrumental in the development of
nuclear power. The use and possession of plutonium, like other
radioactive material, is carefully and comprehensively regulated by
the federal government.
“ An autopsy showed that the amount of plutonium in Silkwood’s
body at the time of her death, a week after the exposures, was 8.8
nanocuries. R. 7078; Defendant's Exhibit 37, A. 55. (Silkwood was
killed in an automobile crash unrelated to this appeal.) Under
standards established by the International Commission on Radio-
logical Protection (ICRP) and the National Council on Radiation
Protection (NCRP) and followed by the AEC, the permissible body
burden for occupational workers is 40 nanocuries. At this level no
adverse health effects are expected. E.g., R. 7080, 9177-78.
4
operation. In fact, Mr. Keppler testified that the AEC viewed
the plutonium plant as a “safe operation.” R. 8158. Moreover,
Kerr-McGee’s operation of the plutonium plant never resulted
in a fine by the AEC, or even a recommendation that such a
fine be levied. R. 8157. Mr. Keppler further testified that there
were no serious personnel exposures at the plutonium plant ( R.
8255-6); that Kerr-McGee did not exceed the regulatory
requirements with respect to exposure levels which would result
in significant health hazards (R. 8256); and that under regu-
lations and reporting requirements in effect at the time of trial.
there would not have been even one exposure incident in 1973
or 1974 serious enough to warrant reporting it to the AEC. R.
8257.
The appellant's charge of malice toward Karen Silkwood is
also totally unsupported., Indeed, it is fundamental to an
understanding of the record below to recognize that the plain-
tiff totally failed to offer proof on the mechanism of Silkwood’s
exposure or the contamination of her apartment and that the
plaintiff's counsel expressly conceded his inability to do so.
E.g., R. 3443. Having failed to prove how the exposures
occurred, it is axiomatic that they were not proven to be the
product of malice.
Instead of establishing evil intent, the record discloses that
Kerr-McGee acted with great care and concern for Silkwood's
safety and medical condition. E.g., R. 7034-7036, 7043. In
short, the undisputed facts are that when Silkwood was avail-
able, she received care and attention from Kerr-McGee; any
delay was attributable solely to her own actions. E.g., R. 7036,
7064.
Nor was there any evidence of malice or evil intent
towards employees in general. The design of the plant and the
equipment and processes utilized therein were “state of the art”
and were approved by the AEC. R. 5497. Allegations of
inadequate training and production at the expense of workers’
5
safety were thoroughly investigated by the AEC and found to
be unsubstantiated. The AEC specifically concluded that the
training curriculum emphasized health and safety procedures,
pointed out the hazards associated with plutonium, and includ-
ed adequate instruction on the biological effects of exposure.
Defendants’ Exhibit 38. The claim that Kerr-McGee concealed
the hazards of plutonium from its workers through the omission
of the word “cancer” and the use of arcane jargon in-
comprehensible to the workers is likewise baseless. The first
sentence of the section of its health physics training manual
dealing with the health effects of plutonium states, “... it is
presently felt the major hazard from plutonium in man is
malignancy.” Defendants’ Exhibit 5.
The appellant's discussion of the plant’s physical security
system in the context of this exposure is similarly misleading.
Obviously, the security system was intended to prevent diver-
sion of strategic quantities of plutonium, i.e. amounts which
through repeated intentional removal, over time, could provide
enough material to fashion a weapon. R. 7982. The physical
security system was neither designed nor intended (nor re-
quired by the AEC) to prevent the removal of the minute
quantity (less than .0003 grams) of plutonium involved in this
case. R. 7980-1. The principal safeguard for prevention of the
removal of minute quantities of plutonium was, in fact, self-
monitoring by those who had authorized access to the restricted
areas where plutonium was handled. R. 4531. Silkwood and
other employees were required to monitor themselves at least
five separate times between their work stations and the door to
the plant. R. 4529-30, Defendants’ Exhibit 144. Kerr-McGee’s
physical security system was in complete compliance with the
AEC regulations at the time of Silkwood's exposure. Defend-
ants’ Exhibit 37, A. 14.
Inexplicably, the appellant asserts that he established at
trial that the appellees violated the AEC regulations governing
6
radiation exposures with respect to Karen Silkwood. J. S. 11.
Not only is this untrue, it is flatly contradicted both by the
appellant’s counsel’s own admission at trial that he didn’t know
how Silkwood was contaminated (£.g., R. 553) and his
concession in the petition for rehearing below that:
“... [N]o express license condition was violated by KM.”
Petition for Rehearing, p. 14, n. 20.
As the appellant well knows, Kerr-McGee's license was “sub-
ject to all applicable rules, regulations, and orders of the
Atomic Energy Commission.” Defendants’ Exhibit 2.
The AEC made an exhaustive investigation into Silkwood’s
exposures to plutonium. Defendants’ Exhibit 37, A. |, ef seg.
The AEC’s final report of this investigation contains a detailed
chronology of the events relating to Silkwood’s contamination
and decontamination, analyses of bioassay data, and specific
factual conclusions. The AEC concluded that Silkwood re-
ceived less than one-half of the maximum permissible body
burden of plutonium from the exposure incidents and further
concluded that Kerr-McGee’s only violation of regulations was
the failure to maintain a record of the voiding dates on two
bioassay samples submitted by Silkwood. Defendants’ Exhibit
37, A. 17. This violation, which occurred because Silkwood
failed to supply Kerr-McGee with the voiding dates, was not
causally related to her exposure or alleged injury in any way.
There is, in fact, no basis for the claim that Kerr-McGee was
not in complete compliance with federal regulations as they
pertained to Silkwood.
7
MOTION TO DISMISS
Appellate Jurisdiction Does Not Lie
for This Appeal Under § 1254(2).
This appeal should be dismissed for the reason that the
Court of Appeals below did not hold a state statute to be
invalid as repugnant to the Consutution, treaties or laws of the
United States. 28 U.S. C. § 1254(2).
The state statute asserted to provide the basis for junsdic-
tion here is the Oklahoma punitive damages statute, 23 O. S.
§ 9, which permits a jury to award exemplary damages where a
defendant has been guilty of oppression, fraud or malice. After
reversing the compensatory award for personal injuries, the
Tenth Circuit held that under the Atomic Energy Act any state
action that competes substanually with the Nuclear Regulatory
Commission in its regulation of radiation hazards is preempted.
The court then held that “punitive damages may not be
awarded in this case.” J. S. App. 24a. However, the court
below never addressed, analyzed or ruled on the validity of the
punitive damages statute itself. In fact, nowhere in the Tenth
Circuit’s opinion is the statute even mentioned. It is respect-
fully urged that this is mor tantamount to a holding that the
Oklahoma punitive damages statute is invalid.
In failing to demonstrate any consideration of the Okla-
homa statute by the Tenth Circuit, the appellant has failed to
establish any basis for an appeal under the narrowly-
interpreted § 1254(2). In comparable situations where jurisdic-
5 The transparency of the appellant's attempt to bootstrap appei-
late jurisdiction here is demonstrated by his argument that the
decision below violated “standards respecting preempuon of common
law rights” (J. S. 17); see also Judge Doyle's dissent (J. S. App. 32a)
(stating that the issue in this case is whether the Atomic Energy Act
umpliedly preempts part of Oklahoma's common law remedy ).
tion was claimed under § 1257(2), appeals have been dis-
missed. See, May v. Anderson, 345 U. S. 528, 530 (1953)
(appeal would not lie where the state statute alleged to be the
basis for appeal was not considered by the court below); Ku/ko
v. Superior Court of California, 436 U. S. 84, 90 (1978)
(appeal dismissed because opinion below did not purport to
determine the constitutionality of a California statute ).
Even where consideration of a state statute is clear, such
decisions limiting the applicability of statutes under the Su-
premacy Clause do not in all instances constitute a finding that
such statutes are invalid. In Minnesota v. Hoffman, 543 F. 2d
1198 (8th Cir. 1976), appeal dismissed for want of jurisdiction,
sub nom., Minnesota v. Alexander, 430 U. S. 977 (1977), the
Eighth Circuit held that the State of Minnesota was prohibited
by reason of the Supremacy Clause from applying state water
pollution regulations to the Army Corps of Engineers. The
appeal to this Court under § 1254(2) was dismissed.
The cases relied upon by the appellant (J. S. 2-3) are
readily distinguishable. In each, a specifically identified statute
is expressly held to be invalid, either facially or as applied, by
the court of appeals. In each, the challenged statute is fully
analyzed and is the focus of the court's holding. Here the
Oklahoma statute is never identified as being the subject of the
holding, nor is any consideration by the court below of the
statute’s validity or applicability to these unique facts arti-
culated or even disclosed. This is particularly germane where.
as here, the compensatory award for alleged personal injuries
upon which the punitive damage claim was premised, has itself
been reversed on state grounds.
9
MOTION TO AFFIRM
A. This Court Should Affirm the Tenth Circuit’s Ruling That
an Award of Punitive Damages Is Preempted in This Case.
The Jurisdictional Statement distorts the holding and
impact of the decision below respecting punitive damages and
seeks an unwarranted disruption in the orderly, and heretofore
consistent, growth of the law surrounding federal regulation of
radiation hazards. The Tenth Circuit simply held that the
imposition of punitive damages in this case constitutes state
regulation of radiological hazards which conflicts with the
regulatory scheme of the Atomic Energy Act and is therefore
preempted. In so holding, the Tenth Circuit was forging no
new legal principles, but merely following sound, established
legal precedent of this Court and the lower federal courts.
The Tenth Circuit Correctly Held That the Imposition of Punitive
Damages Is Preempted by the Atomic En. -v Act.
The Atomic Energy Act of 1946 codified Congressional
concern over the control of radioactive materials by providing
the AEC with a monopoly on the ownership, production and
use of all fissionable material. Ch. 724, 60 Stat. 755. Recogniz-
ing the great potential for peaceful use of atomic power,
* The Pacific Gas and Electric case, now before this Court on writ
of certiorari, does not present an issue which would affect the outcome
of this case. Pacific Legal Foundation v. State Energy Resources
Conservation and Development Comm., 659 F. 2d 903 ( 9th Cir. 1981),
cert. granted sub nom., Pacific Gas & Electric v. State Energy
Resources Conservation and Development Comm., 50 U.S. L. W. 3994
(June 21, 1982). There, a state statute was upheld by the Ninth
Circuit against a Supremacy Clause challenge on the basis that it was
enacted “for purposes other than protection against radiation haz-
ards.” 659 F. 2d at 923. Neither the Ninth Circuit's decision nor the
argument of esther party challenges the pnacipie of federal supremacy
in the regulation of radiation hazards. The issue of. certiorari is
10
Congress, by the Atomic Energy Act of 1954, 42 U. S. C.
§ 2011, et seg., allowed private participation in the devel-
opment of nuclear energy but only under a comprehensive
statutory program of federal licensing and regulaties described
as “a regulatory scheme which is virtually unique in the degree
to which broad responsibility is reposed in the administering
agency.” Siegel v. AEC, 400 F. 2d 778, 783 (D. C. Cir. 1968).
The expressed dual purpose of the Act was to foster the
peacetime use of atomic energy and to protect the public from
undue radioactive hazards. 42 U.S. C. §§ 2011-13.
The 1954 Act provided the AEC with extensive regulatory
and rule-making authority, and charged the AEC with the duty
to formulate regulations to protect public health and safety. 42
U. S. C. §2201(b). In 1959 Congress amended the Act by
adding Section 274 to clarify the responsibilities of the states
and the AEC with respect to control of by-product, source and
special nuclear material. 42 U. S. C. § 2021. This section
establishes procedures and criteria for the discontinuance by the
AEC (and “assumption” by the states) of certain specified
responsibilities, otherwise within exclusive AEC domain. But
such an assumption can only take place if a state enters into a
“Section 274 Agreement” with the AEC ( NRC).’ Oklahoma
has never entered into such an agreement and the Commission
has surrendered none of its authority to regulate nuclear
materials.
The exclusivity of the NRC's jurisdiction as well as the
need and purpose for such exclusivity was clearly enunciated in
7In favorably reporting the section 274 legislation, the Joint
Committee on Atomic Energy declared that “the Commission has
exclusive authority to regulate for protection against radiation hazards
until such time as the State enters into an agreement with the
Commission to assume such responsibility.” S. Rep. No. 820, 86th
Cong., Ist Sess., 12, reprinted in 1959 U. S. Code Cong. & Admin.
News 2872, 2883. See also, Hearings before the Joint Committee on
Atomic Energy on Federal-State Relationships in the Atomic Energy
Field, 86th Cong., Ist Sess., 287-316 ( 1959).
Northern States Power Co. v. Minnesota, 447 F. 2d 1143 (8th
Cir. 1971), aff'd mem., 405 U.S. 1035 (1972):
The nature of the subject matter regulated and the need for
uniform controls in order to effectuate the objectives of
Congress are additionally supportive of a finding of pre-
emption. In enacting the Atomic Energy Act of 1954,
Congress made specific findings concerning the devel-
opment, use and control of atomic energy. Included in
these findings are a number of statements to the effect that
the processing and utilization of source, by-product and
special nuclear material must be regulated by the United
States in the national interest because of their effect upon
interstate and foreign commerce and in order to provide
for the common defense and security and to protect the
health and safety of the public. (Emphasis in original ).
Id. at 1153.8
8In Northern States the preemption arose out of the Atomic
Energy Act of 1954, as amended. As far as state regulation is
concerned, the sole savings clause in the Act permits states to regulate
activities “for purposes other than protection against radiation haz-
ards,” § 2021(k) (emphasis added). See Hearings Before the Joint
Committee on Atomic Energy on Federal-State Relationships in the
Atomic Energy Field, 86th Cong., Ist Sess. 492-93 (1959) during
which the following exchange occurred:
Mr. Ramey: Is it not the Commission position, that without the
lead-off language of subsection [274]k, [that state regulation
was to be permitted only pursuant to the agreements authorized
by Section 274(b)], the same result is legally intended and
legally effective?
Mr. Lowenstein: Yes.
> . >
Chairman Anderson: You have preempted the field, have you
not?
Mr. Lowenstein: Yes, sir.
Here Silkwood does not even contend that the purpose of the punitive
damages award was to punish or deter activities other than those
involving radiation hazards.
12
The holding of Northern States was subsequently reaf-
firmed by this Court in Train v. Colorado Public Interest
Research Group, 426 U. S. 1, 16 (1976), where the Court
recognized the “absence of any room for a state role” in the
regulation of radiological hazards. Moreover, contrary to any
assertions made in the Jurisdictional Statement, recent circuit
court case law demonstrates the continued vitality of Northern
States. See Illinois v. Kerr-McGee Chemical Corp., 677 F. 2d
571, 581 (7th Cir. 1982) (“[T]he Atomic Energy Act has
expressly and impliedly preempted regulation by the states of
the radiation hazards associated with nuclear materials.”’);
Pacific Legal Foundation v. State Energy Resources Con-
servation and Development Comm., 659 F. 2d 903, 921 ( 9th Cir.
1981), cert. granted sub nom., Pacific Gas &.Electric v. State
Energy Resources Conservation and Development Comm., 50 U.
S. L. W. 3994 (June 21, 1982) (“[The legislative history of
section 274] demonstrate(s) Congress’s intent to assert ex-
clusive federal control over the radiation hazards associated
with nuclear materials.”’).9
Silkwood attempts to avoid the impact of Northern States
by noting that this case involves no state “regulations” or state
agency. J. S. 15. Certainly this is a distinction without a
difference and stems from a fundamental misunderstanding of
the nature and function of punitive damages. Unlike com-
pensatory damages, punitive damages “are private fines levied
by civil juries to punish reprehensible conduct and to deter its
future occurrence”. Gertz v. Robert Welch, Inc., 418 U. S. 323,
% Appellant argues that Northern States is no longer viable (J. S.
16-17), because the Clean Air Act Amendments of 1977 expressly
permit state regulation of radiation emissions under certain specific
and limited circumstances. Such specific delegation of limited author-
ity to the states by federal statute is entirely consistent with underlying
and continuing federal control of all nuclear radiation hazards not
covered by such specific delegation. In short, the doctrine of Northern
States is alive in all areas of control of nuclear radiation hazards,
except those specifically delegated to the states by federal statute.
13
350 (1974). The primary purpose for imposition of punitive
damages has been the regulation of conduct through punish-
ment and deterrence. Restatement (Second) of Torts
§ 908( 1), Comment a (1979); Comment, Jmplied Preemption
of Punitive Damages for Nuclear Accidents, 29 American U. L.
Rev. 741, 756 (1980). In fact, under Oklahoma law, if a
punitive award will neither punish nor have a deterrent effect,
the award will be disallowed. Nixon v. Oklahoma City, 555
P. 2u 1283, 1285 (Okla. 1976). The punishment-deterrent
rationale was explicitly recognized by the trial judge in his
instructions to the jury. J. S. App. 1 12a.
In imposing punitive damages, the jury and the district
court were prescribing the manner in which Kerr-McGee must
conduct operations in its plant. The regulatory intent and
impact of a punitive damages award is at least as forceful and
intrusive as a law issued by a state legislature or a regulation
promulgated by a state administrative agency. Indeed, the ad
hoc imposition of punitive damages is more pernicious than a
statute or formal regulation, because the arbitrary and uncon-
trollable features of the award, recognized in /nternational
Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 50-51
n.14 (1979), prevent a uniform system of regulation and are
not balanced with the stated Congressional purpose of promot-
ing nuclear energy.
In fact, the particular circumstances of this case illustrate
why the imposition of punitive damages is a form of regulation.
Here, not only is there no evidence of deliberate or even
reckless violation of a regulation causing the claimed injury to
Silkwood or her personal property, there was no evidence of any
violation which was shown to be the cause of Silkwood’s alleged
injuries or the damage to her personal property.'° See discussion
10 Significantly, the appellant has not cited a single case in which
punitive damages have been awarded despite compliance with a
(Footnote continued on following page)
14
pp. 5-6, supra. The alleged misconduct on which Silkwood
sought to base the punitive damage award had to do with the
general operation of the facility and the alleged general attitude
of the company with respect to safety. Thus, it is clear that any
award of punitive damages in this case would be nothing more
than an attempt to regulate generally the operation of the plant.
As such, it is clearly preempted under the Atomic Energy Act
and by the reasoning of the Northern States case and its
progeny.
The Purpose Underlying the Price-Anderson Act Is
Inconsistent With an Award of Punitive Damages.
The appellant’s reliance on portions of the legislative
history of the Price-Anderson Act is misplaced. The complete
legislative history of the Act demonstrates that its two basic
purposes are to assure the availability of funds to compensate
victims of a catastrophic nuclear incident and to encourage
private industrial participation in the nuclear energy program.
S. Rep. No. 650, 89th Cong. Ist Sess. 4, reprinted in 1965 U. S.
Code Cong. & Admin. News 3209, 3212. That the Price-
Anderson Act contemplates public liability protection for com-
pensatory rather than punitive damages is evidenced by section
( Footnote continued from preceding page)
preemptive federal regulatory scheme. Rather, he relies on this
Court’s decision in Nader v. Allegheny Airlines, Inc., 426 U. S. 290
(1976). J. S. at 19. That decision, unlike the subsequent court of
appeals decision in the same case, dealt with primary jurisdiction
rather than federal preemption, and did not address the question of
punitive damages. The Court simply held that a particular section of
the Federal Aviation Act was not inconsistent with and did not
abrogate common law liability for misrepresentation. The question of
punitive damages was subsequently considered by the court of
appeals, which held that the award of punitive damages was improper
because there had been compliance with the federal regulations
involved. Nader v. Allegheny Airlines, Inc., 626 F. 2d 1031, 1035
(D. C. Cir. 1980). See discussion at p. 20, infra.
15
2210(c) (limiting government indemnity to $500,000,000),
sectior 2210(e) (limiting total liability of licensees to
$560,000,000 ), and section 2210(0) (authorizing the district
court to supervise distribution of limited fund to claimants, and
to establish priorities between claimants and classes of claims).
If punitive damages were recoverable, the Act’s dual objectives
would be defeated. The risk of impediments to private
development would not be removed, and “windfall” punitive
recoveries to some claimants could reduce the amount available
as compensation to other claimants. In short, in this com-
prehensive Congressional scheme for public liability protection,
there is no justification—no raison d’etre—for punitive dam-
ages. Thus, the reference to state tort law in the legislative
history must be read as referring to state tort law for purposes
of compensation.
In focusing on Price-Anderson, the appellant has lost sight
of the legislative history of the Atomic Energy Act as a whole
(which specifically governs the operation of Kerr-McGee’s
plant). This history shows explicitly that Congress intended
that radiological hazards be subject to exclusive federal control.
Northern States, supra. Punitive damages would clearly conflict
with this intention. See Comment, /mplied Preemption of
Punitive Damages, 29 American U. L. Rev. 741, 767 (1980)
(“Although a goal of Price-Anderson may have been to keep
interference with state tort law to a minimum, it clearly did not
authorize states to regulate radiation hazards through the
granting of punitive awards.”’).
The Tenth Circuit Opinion Does Not Deprive Citizens
of Any Common Law or Constitutional Rights.
The appellant’s argument that the Tenth Circuit’s decision
on punitive damages deprives citizens of a fundamental night to
be compensated or made whole for wrongs committed against
them ignores the nature of punitive damages. As noted above.
the purpose of punitive damages is not to compensate the
16
plaintff. Indeed, to the plaintiff, punitive damages are a
windfall because their purpose is to punish the defendant and
to deter future conduct. They are, in effect, a common law
substitute for a legislative fine or penalty, except that the money
goes to the plaintiff rather than the state. The decision below
leaves intact whatever rights a citizen may have under state law
to recover for any loss or damage he has incurred, while at the
same time preserving the federal government’s exclusive inter-
est in deterring or punishing improper conduct relating to
radiation hazards. The appellant argues that the imposition of
punitive damages lies within a state’s “police powers” and
therefore, preemption should not be readily inferred. J. S.
17-19.11 The purposes underlying the Atomic Energy Act,
however, show that Congress specifically considered the health
and welfare of the public in determining that the AEC, an
agency with expertise and experience in radiological matters, is
best equipped to evaluate potential hazards and protect the
public health and safety. See discussion of Northern States,
supra.
Nor does the Tenth Circuit’s decision create equal protec-
tion or due process problems for failure to provide a substitute
for punitive damages. J. S. at 26-27. As this Court stated in
Duke Power Co. v. Carolina Environmental Study Group, Inc.,
438 U. S. 59, 88 (1978), “it is not at all clear that the Due
Process Clause in fact requires that a legislatively enacted
compensation scheme either duplicate the recovery at common
"! Appellant claims that when state police powers are involved,
“the presumption should be against federal preemption of the state
law,” J. S. 19 & n.27. The cases cited for this proposition, however,
merely state: “in the absence of compelling Congressional direction,
we could not infer that Congress had deprived the States of the power
to act.” San Diego Building Trades Council v. Garmon, 359 U. S. 236,
244 (1959); New York Telephone Co. v. New York Labor Dept., 440
U. S. 519, 540 (1979). Im the area of radiological hazards, the
relevant legislative history and case law clearly demonstrate a com-
pelling Congressional! direction that state law be preempted.
17
law or provide a reasonable substitute remedy,” citing several
cases, e.g., Silver v. Silver, 280 U. S. 117, 122 (1929) (the
“Constitution does not forbid the creation of new rights, or the
abolition of old ones recognized by the common law, to attain 4
permissible legislative object”). Moreover, there is a quid pro
quo here. Extensive regulation by a federal agency for the
protection of the public has been established, with sanctions
such as heavy fines and license revocation available and often
invoked, to secure compliance, deter prospective wrongdoers.
and punish offenders. See, e.g., Wall Street Journal, March 22,
1982, at 14 ( Boston Edison pays $550,000 fine levied by NRC).
The appellant’s argument that an NRC licensee could
intentionally contaminate someone and be immune from pun-
ishment (e.g. J. S. 12) is fatuous. Such an assertion has no
application to this case, where there was no evidence that either
Silkwood or her personal property were deliberately con-
taminated by Kerr-McGee. R. vol. 52, pp. 3-4. If some other
case arose in which the evidence did show that a licensee
deliberately contaminated someone, it is inconceivable that the
NRC would fail to take action, including federal criminal
prosecution, to punish the offender. See 42 U.S. C. §§ 2272-73.
The appellant cites no authority for the proposition that
there is a constitutional right to punitive damages. Moreover, it
is this Court’s policy to avoid unnecessary adjudication of
federal constitutional questions where independent state
grounds support the decision below. See City of Mesquite v.
Aladdin’s Castle, Inc., supra, 102 S. Ct. at 1077.
B. It Was Unnecessary for the Tenth Circuit to Reach the
Federal Preemption Issue Upon Which the Appellant
Relies Here for Jurisdiction.
The Jurisdictional Statement here is fundamentally flawed.
The appellant has sought to present questions for review here in
a posture that erroneously suggests that the only action of the
court below was to reverse the punitive damage award. ignor-
ing the first holding of the Tenth Circuit that Silkwood's
exclusive remedy for personal injuries was under Oklahoma's
worker's compensation laws. By virtue of this holding under
state law, which is not presented here for review, the underlying
basis for a punitive damage award no longer exists and any
federal question presented is not substantial.
The court below correctly reversed the award of com-
pensatory damages for personal injuries awarded to Silkwood
because the exclusive remedy for such claims is provided under
the Oklahoma worker’s compensation laws. In fact. the same
exclusivity applies to punitive damages as well as compensatory
damages. The liability prescribed under the worker's com-
pensation laws is“. . . exclusive and in place of all other liability
of the employer and any of his employees, at common law or
otherwise. .. .” 85 O. S. §§ 11-12, A. 63.
Moreover, in Oklahoma as in virtually all jurisdictions.
there is no independent cause of action for punitive damages.
they being only incidental or collateral to an underlying
compensatory damage claim. Gilbreath v. Phillips Petroleum
Co., 526 F. Supp. 657, 659 (W. D. Okla. 1980). In the absence
of compensatory damages, there can be no recovery of ex-
emplary damages. Brown v. Higby, |91 Okla. 173, 127 P. 2d
195, 196 (1942). The only compensatory damage award which
remains in this case, as it is presented to this Court, is the
stipulated sum of $5,000 for Silkwood’s personal property.
which was removed from her apartment by Kerr-McGee during
the decontamination process. It cannot seriously be contended
that the contamination of this property, under circumstances
unexplained by the plaintiff, could be a proper predicate for an
award of $10,000,000 in punitive damages.
Oklahoma law requires that punitive damages must bear a
reasonable relationship to the injuries sustained by the plaintuff
“and the cause thereof.” (Emphasis added). Hobbs v. War-
19
kins, 481 P. 2d 746, 754 (Okla. 1971). See also Misco Leasing,
Inc. v. Keller, 490 F. 2d 545 (10th Cir. 1974); Dearmore v.
Gold, 400 F. 2d 887 ( 10th Cir. 1968). The $10,000,000 award
of punitive damages has no relationship, much less a reasonable
relationship, to the compensatory award for property damage
or its cause. Indeed, the appellant not only failed to prove how
the property damage came about, but his counsel readily
conceded that he had no explanation of the circumstances of
the apartment’s contaminatioa:
[ W Je concede to the jury and concede to the Court that we
can’t satisfy the mechanism by which the plutonium got
from the Cimarron Facility into Karen Silkwood’s apart-
—= and into her lungs, and we concede that point.... R.
This case was tried as a personal injury action. The
complaint, the evidence, the instructions, and the rulings on the
post-trial motions all point to the inescapable fact that the
asserted basis for the punitive damage award here was the
relationship between Kerr-McGee’s alleged misconduct anc the
alleged personal injury of Silkwood, not the comparatively
nominal damage to her personal property. See, e.g., J. S. App.
at 42a, 44a, 85a, 94a, 95a, 96a, 99a, 103a, 109a.'2 Since the
only possible basis for a punitive damage claim, the claim for
personal injuries, is barred, the punitive damage claim based
thereon is likewise barred.
The federal preemption issue, although correctly decided
by the Tenth Circuit, need not have been reached below as the
‘2 The court’s affirmance of the property damage award of
$5,000 was on the theory of strict liability and not on any wrongful act
or omission by Kerr-McGee. J. S. App. 18a-21a. Indeed, the jury was
instructed that recovery can be had under such a theory even though
the defendant “has exercised the utmost care to prevent the harm to
the plaintiff.” J.S. App. 99a. Manifestly, the required fraud, malice or
oppressive acts in relation to the property damage and its cause are
not present.
20
punitive damage award could not stand in any event under
controlling state law principles. See, e.g., Flournoy v. Wiener,
321 U.S. 253, 262 (1944). Plenary consideration of this case is
clearly inappropriate where any decision would be purely
academic or advisory in nature. Cf. Rice v. Sioux Ci
Memorial Park Cemetary, 349 U.S. 70, 74 (1955) (“This Court
does not sit to satisfy a scholarly interest in such issues.”). This
Court should decline the appellant's invitation to explore a
tangential federal question not necessary to the summary
affirmance of the decision below.
C. There Are Additional Non-Federal Grounds Which
Preclude Any Punitive Damage Award.
There are two further independent grounds for denying
punitive damages, which were not considered by the Tenth
Circuit. Since the appellant is barred from recovering punitive
damages on these alternate grounds, this Court should summar-
ily affirm the decision below.
Compliance With Relevant AEC Regulations
Precludes the Award of Punitive Damages.
The record is clear that Kerr-McGee was in compliance
with AEC regulations as they related to Silkwood’s alleged
injury and property damage. The AEC conducted an exhaus-
tive investigation, ( Defendants’ Exhibit 37, A. |, et seg.) which
conclusively establishes compliance by Kerr-McGee with AEC
regulations relevant to Silkwood’s claims. Where there has
been substantial compliance with a pervasive regulatory
scheme, punitive damages cannot be awarded, irrespective of
preemption. The regulated party may not be condemned as a
wanton wrongdoer for conforming to the standards set and the
practices approved by the agency charged with the duty of
regulating the conduct. Nader v. Allegheny Airlines, Inc., 626
F. 2d 1031, 1035 (D. C. Cir. 1980).
21
Even if not preempted by statute, punitive damage awards
are prohibited where they have the potential of interfering with
a regulatory scheme and of creating a chilling effect, impairing
the activities of parties otherwise subject to regulation. /nter-
national Brotherhood of Electrical Workers v. Foust, 442 VU. S.
42, 52 (1979) (setting aside a punitive award against a labor
union for alleged breach of duty of fair representation ): see also
Harrison v. Indiana Auto Shredders Co., 528 F. 2d 1107, 1123-
26 (7th Cir. 1976) (where proper regulatory agency finds a
licensee to be in compliance with license requirements, a court
cannot go behind such a finding and award punitive damages
based on the regulated conduct). Here Kerr-McGee’s com-
pliance with relevant AEC regulations is clear and precludes
any recovery of punitive damages.
Punitive Damages May Not Be Awarded Without
Evidence of Malice or Wanton Conduct.
Punitive damages are authorized in Oklahoma only where
the very act causing the injury was actuated by or accompanied
with evil intent or was the result of such gross negligence as to
be the equivalent to evil intent. See, e.g., Schuman v. Chatman,
184 Okla. 224, 86 P. 2d 615, 618 (1938). At trial, the appellant
did not prove or even attempt to prove any act causing damage
and conceded that no such act or omission of Kerr-McGee
could be identified. E.g., R. 3443. A fortiori, there could not be
any proof of evil intent. Even if the doctrine of federal
preemption had not been applied. and even if Oklahoma's
worker’s compensation laws had not been held to be the
exclusive remedy for personal injuries, the punitive damage
award could not stand. Simply stated, the appellant may not
concede a total failure of proof of the conduct underlying a
claimed damage and recover a punitive award based solely on
the fact of the damage.
22
CONCLUSION
For all of the foregoing reasons, this appeal should be
dismissed or, in the alternative, the judgment below should be
summarily affirmed.
Respectfully submitted,
E.uiorr C. Fenton
FENTON, FENTON, SMITH,
RENEAU
Sy -- os, Kerr-McGee Corpo-
raron ard -McGee Nuclear Corpo-
Kerr-McGee Nuclear Corporation is a wholly-owned subsidiary
of Kerr-McGee Corporation. The following are non-wholly-owned
subsidiaries or affiliates of Kerr-McGee Corporation: Kerr-McGee of
Canada Northwest, Ltd.; Kerr-McGee Oil (U.K.) Litd.; San-Ann
Premium Center, Inc.; Sunningdale Oils ( Abu Dhabi), Ltd.; Sunning-
dale Oils ( Ireland ), Ltd.; Transocean Drilling Company, Ltd.; Trans-
ocean Drilling (Curacao) N.V.; Transhore Drilling (Curacao) N.V.;
Transworld Drilling Company ( Nigeria), Ltd.; White Shoal Pipeline
Corporation; Basic Management, Inc.; Bitita Minerals ( Private ), Ltd.;
Crescent Petroleum Company; Downtown Airpark, Inc.; Little Medi-
cine Development Company; Oklahoma Stations, Inc.; and Texoma
Al
+ . DEFENDANTS’ EXHIBIT #37
RO INVESTIGATION REPORT NO. 74-09
DIRECTORATE OF REGULATORY OPERATIONS
REGION Iii
Subject: Kerr-McGee Nuclear Corporation Cimarron Plant
Crescent, Oklahoma
License No. SNM-1174 (Docket No. 70-1193)
An employee and her residence vere found to be contaminated
with plucenium on November 7, 1974.
Period of Iavestigation: November § to December 4, 1974
Investigators: hi zi J Lathe La Le. ¢ 2¢¥
Sifcm alaloy
74 Mud HO / 7¥
. A. Aiagway (Date)
© Lahe/7¥
Reviewed 38y: . A. Hind (Dace)
Materials & Planc
Protection / 2
/. ibn SB > 1b Po
. M. =v} i (Date)
tological and Eavirersenzal ,
Protection Section
A2
SCOPE OF INVESTIGATION
During the period November § to December 4, 1974, Regulatory Operations :
imvescigaced che radiation protection and materials safeguards aspects of an
incident imvolving contamination of a Kerr-McCee Nuclear Corporation employee
(Individual A) and her apartzenct, and lesser contamination of her roommace
(Individual 8). The tmvestigation was intended to discover the cause
and extent of the contamination and to determine whether significant
exposure resulted to employees. Individual A died in an automobile
accident on November 13, 1974. The cause of this death is noc within
the jurisdiction of the AEC and therefore was noc pursued during the
investigation.
The investigation did not reveal exactly how the contamination occurred.
However, several conclusions have been drawn from available evidence:
1.
3.
4.
- -
Individual A's personal contamination on November 5, 6, and 7 probably
did sot result from an accident or incident within the planc.
Two urine samples submitted by Individual A contained plutonium which
wes not presenc in the urine when it vas excreted.
Individual A did not inhale a significant quantity of plutonius.
Individual A did ingest some plutonium on or about November 7, 1974.
Individual A's body organs and tissue contained « small amount of
plutonium; less chan one half che saxioum permissible body burden.
Individuals B and C did not receive a biclogically significance internal
deposition of plutonius.
The quantity of plutonium released to the Edmond, Oklahoma, sewage
treatment planc vas probably insignificant.
No more than 0.0003 grams of plutonium were idencified in the contamination
of che individuals and their apartment.
No contamination was detected external to the apartmenc shared by Individua
A and B and the bodies of these individuals and only « very small amount
of contamination vas found in individual A's automobile.
A 3
REASON FOR INVESTIGATION
Based upon telephone notification by the licensee on November 7, 1974,
thac: an employee was found to have contamination on portions of her
body upon reporting to work that sorning; bioassay samples she broughc
with her showed significance levels of radioactivity through a pre-
liminary check; and, the apartmenc she shared with another female
employee was found contaminated, Region III immediately initiated an
investigation.
SUSCIARY OF FACTS
At approximately 6:30 p.m. Tuesday, November $, 1974, a Lab Analyst, here-
after referred to as Individual A, who was vorking in Glove Box No. 3 in
the Metallography Laboratory, Room 135, of the licensee's plutonium plant
checked her hands on a sonitoring instrument mounted on che glove box
and discovered that they were contaminated. She so informed another lab
analyst who nocified the plant Health Physics Office and requested
assistance. Individual A was taken to the Health Physics Offices for
decontamination and Room 135 was placed on respirator status, that is,
tespirators must be worn to enter, while two glove box gloves, which vere
found to be contaminated on their outside (handside) surfaces, vere
replaced. These gloves vere subsequently tested by Xerr-McGee personnel
and no leaks vere found. Smear surveys of Room 135 showed no contamination.
The air sample filter papers from the two air sample heads in the room showed
essentially no airborne activicy had been detected during the time
Individual A had been in the room. By 9:00 p.a. Room 135 was taken off
of respirator status and Individual A's decontamination compleced. She
Teturned to the laboratory, developed film and performed other siscellaneous
papervork buc performed no work in the glove boxes. She stated she
monitored herself as she left the plant at about 1:10 a.m. and decected
me contamination. She was provided urine and fecai kits, specifically
made up for her by a health physics technician. As a precautionary
@easure she was placed on a total collection bicassay program for che
following five days because of the contamination occurrence.
On Wednesday, November 6, she arrived act the plant at about 7:50 a.a.
and spent che next hour examining metallographic prints and performing
paperwork. She performed no glovebox work that day. Act 8:50 a.m. she
prepared to leave the laboratory to attend a union negotiating meeting
with plant management in her capacity as a representative of Local 5283
of the O11 Chemical and Atomic Workers Union. While monitoring herself
as she exited, she detected contamination on her hands. A survey sade
by health physics personnel revealed some contamination on her hands,
tight forearm, and the right side of her neck and face. Her hands
were successfully decontasinated and since the other spots were fixed
contaginacion she was released by Health Physics to attend the seeting
——
with the understanding she would report back to Healch Physics before
going home.
She reported back to the Health Physics Office at approximately 4:30 p.a.,
undervenc further decontamination of the earlier identified fixed con-
tamination and vas released by the health physics technician when
contamination had been reduced to less than $00 d/m (disincegrations
per sinute).
At her request a health physics technician checked her locker act the
plutonium planet and her personal auto and no contamination was found.
Prior to leaving the plant, she was instructed to report to the Health
Physics Office the next morning for another nasal smear before going
into che laboratory to vork. ;
Qn Thursday, November 7, she reported to the Health Physics Office act
about 7:50 a.m. bringing with her a urine kit containing four urine
samples and one fecal kit. When a sasal smear was taken sign: )) cans
contamination levels vere detected in and around her nose and lever
levels of contamination were found on other parts of her persen. For
this reason, while she was undergoing decontamination, the bioassay
samples vere given a prelisinary check on a wound counter and found
to have high levels of activity. Her locker and automobile were again
checked and essentially no contamination was found.
Following her decontamination on November 7, she was accompanied by
Kerr-McGee Health Physics personnel to her apartment in Edmond, Oklahoma
which she shared with another lab analyst, hereafter referred to as
Individual 38. A survey of the apartment revealed significant levels
of contamination in the bathroom and kitchen and spots of lower level
contamination in other rooms. No contamination was found outside che
apartment.
Individual 3, who was asleep is the apartzent having vorked fros sidnight
co 8 a.m., was awakened and checked for contamination. Two areas of
low level contamination were found on her person. Individuals A and 3
and the Health Physics personnel returned to che licensee's plant where
Individual 3 was decontaminated and preparations were sade to iniciace
decontamination of the apartment. Individuals A and 3 were placed
on a bicassay sampling program by the licensee.
Decontamination of the apartment was begun November 7 and continued
intermittencly to December 2. Final surveys by the licensee on
December 3, 1974, showed no contamination levels greater than 2 d/o
per 100 square centimeters. Representatives of the Stace of Oklahoma Depar'
ment of Health and Region III concurrently performed direct reading and
swear surveys of the apartment on December 3, 1974. By letter daced
—
A §
December 10, 1974, Region III advised che Scace of Oklahoma Deparcmenc
of Health thac the Region III survey results showed contamination levels
within the aparssenct are below those specified in an AEC guideline for
the release of facilities and equipment for unrestricted use.
Two individuals who had visited che apartment during the period November 5-7
were subsequently checked. No contamination was found on either individual.
One individual had visited the apartment on November 5 and the other, here-
after referred tc as Individual C had spent the aight of November 6 in
the apartsent. On November 9, Individuals A and 3 were seen by the
licensee's sedical consultant, and by a medical consultanc retained by
the Region office on this case. Arrangements were sade for Individuals
A, 3 and C to go to the Los Alamos Scientific CamesneeEy & November 11
for in vivo counting.
Oa November 12, the three individuals returned from Los Alamos. Individuals
A and B returned to work on November 13 and were restricted from further
radiation work by Kerr-“McCee. Betveen 7 and § p.m. on Novesber 13,
Individual A died in an automobile accident. The State of Oklahoma
Medical Examiner's Office certified the death as accidental and stated
thac che accident was in no way related to radiation exposure.
The daca obtained chrough analysis of urine samples sutsitted to the
Health Physics Office by Individual A, ac about 8:00 a.a. on November 7
indicated a significant inhalation of plutonium sight have occurred. A
examination of health physics records for the plutonium plane for the
period July lS-November § including all employee personnel bicassay .
data, air sample records, constant air sonitor records, as well as smear
and survey records and interviews with plant personnel provided no
inforsation regarding an occurrence to which an inhalation of plutoniua
of the aagnitude indicated by Individual A's November 7 urine samples
could be attributed.
The in vivo counts performed by Los Alamos Scientific Laboratory on
November 1l revealed no detectable plutonium (i.e., less than the
Minigus Detectable Activity of 8 nanocuries) in any of the three
individuals. However, Individual A's lungs were found to contain
about 0.3 nanocuries of Am-241. An examination of tissue and internal
organs obtained through post-mortem of Individual A on November 14
revealed the presence of some plutonius, prisarily in the lungs and iiver.
Data obtained through analysis of urine samples submitted subsequent to
Novesber 7 indicate that a significant inhalation did not occur. This
inconsistency, together with the whole body count data and the post-sorten
exazination, indicates that two urine samples (Appendix I, No. 25 and No. 27)
contained activity that had been added to the samples. This investigation,
however, did not establish how or by whom the activity was added.
A 6
Am evaluation of che bicassay data indicates that Individual A did ingest
sowe plutonium in the recent past. This investigation, however, did not
establish how or when this occurred.
All of che bicassay data and in vivo count data relating to Individuals
B and C showed thac neither of them had received a biclogically significance
internal deposition of plutcniua.
The total amount of plutonium found in
personal and apartment contamination is estimated to have been less
than 0.0003 grams.
An effort has been msde to include all available inforsation in this
tTeport. However some data, such as additional bicassay information,
which was not available at the cine this report was prepared vill be
furnished at a later date.
The Department of Health, State of Oklahoma was notified of the incident
by the licensee on November 7, 1974 and representatives of that office
participated in parts of this investigation.
Region III issued a news release on November & regarding the incidence and
provided informacion and responded to press inquiries during the ensuing
imvestigacion. The incidenc received wide coverage by all news media.
As a result of this investigation certain activities under License
No. SNM-1174 appear to be in violation of AEC requirements as indicated
below. A violation considered to be of Category III severity is as follows:
Condition No. 22 of AEC license SNM-1174 requires « urinalysis prograz.
Atomic Energy Commission regulations, 10 CFR Part 20.401(c), require that
". « « « Pecords of bico-assays ... . shall be preserved... .."
Contrary to the above, the voiding dates and identity of two highly significance
urine samples are not known by the licensee. (See “Urine and Fecal
Analyses.”)
Personnel Contaczed
Forty Kerr-McCee exployees, including nineteen sembers of asnagemenc,
were contacted during the investigacion. Others conctacced included:
A representative of the Oil, Chesical and Atomic Workers international Union
An apartzent building owner
Am Oklahoma State Highway Patrol Trooper
A Ford dealer
The Oklahoma State Medical Examiner
Kerr-McGee Nuclear Corporation's sedical consultant
Three representatives of the Department of Health, Stace of Cklahona
Sources of Informacion
Iaformation contained in this report was obtained through interviews,
examination of records, observations, and independent seasuresen:s by
the AEC.
Ghroncloey of Evencs
On November $, 1974, Individual A, a Laboratory Analyst, reporsed for
work at the licensee's plutonium plant az 1:20 p.s. after having deen
absent from vork during the period November 1-4, 1974. At that cine
she was presented with a repricand by her supervisor for having ‘saken
&@ prescription drug, Tylenol 3, at work on October 31 without. iaforzin
her supervisor as required by company policy.
Individual A proceeded to perfor=s siscellaneous papervork in che Metal-
lography Lab, Room 135, while wearing a smock. At about 2:45 9.5., as
Individual A and her supervisor monitored themselves as they were Leaving
the work area to take a break, the supervisor detected 2 contaminacedc
shoe cover. They remained in the work area while the supervisor changed
shoe covers and called the Health Physics Office. A health physics
technician checked the laboratory floor and the supervisor's feec. At
3:15 p.m. Individual A and the supervisor left the laboratory to sake a
work break and in sonitoring herself, she found no contamination on her
person. She returned to the laboratory ac about 3:30 p.2., performed
some paperwork and labeling. Ac 3:45 p.m., she put on coveralls and
lightweight plastic gloves which she taped to her wrists. She started
working in the glove boxes, first grinding plutonium samples in glovebox
No. 6. Later sne polished samples and cleaned thes ultrasonically in
glovebox No. 3. At 5:30 p.s., Individual A checked her hands and araus
and found no contamination. She removed her coveralls and took a break.
ry about 5:45 she returned to the laboratory, put on coveralls and
perforsed sore sample grinding in glovebox No. 6. She also performed
more sample polishing and ultrasonic cleaning in glovebex No. 3. After
perforuing some polishing work in glovebox No. 4, she returned to glovebox
No. 3 for glovebox cleanup.
A 8
At about 6:30 or 6:45 p.a., she withdrew her hands from glove box No. 3}
gloves and, as procedures required, checked her hands with a sonitoring
instrument sounted on the front exterior of the glovebox. She found
them contaminated and called another lab analyst working in an adjacent
laboratery room to obtain a health physics technician for assistance.
Upon arrival, the Healch Physics Technician found contamination up to
20,000 d/m* (disintegrations per minute) on the right sleeve and shoulder
of her coveralls. A female safeguards clerk was called in to assist in
surveying and decontaminating her. When changing coveralls, Individual
A's left hand was found to be contaminated. Because of this, she put
on a clean pair of gloves, which she did not remove until she entered the
shower. A survey before showering revealed contamination on che left
hand, right wrist, and upper arm, neck, face, and hair, the highest
level being 10,000 d/m om the right wrist. Nowe smears showed a nax-
imum contamination level of 160 d/ma. Nasal irrigation reduced this
to a maxim of 3 d/m. During the course of irrigating her nostrils,
Individual A informed the health physics technician her left nesctril
was blocked as a result of a broken nose she received as a child.
After showering and washing her hair, she was placed under a hair
dryer for 30 to 45 minutes. A final survey revealed no contamination
greater than 500 d/m. She was released to return to work.
A urine kit and a fecal kit were prepared for her use by a health
physics technician and she vas requested to begin a total collection
program which was to last for the next five days. Between 9 and 10 5.2.
these kits, which bore a label with her name and badge number, vere
placed on a shelf sicuaced for this purpose in the hallway leading to
the air lock through which all persommel aust pass.
The extra kits were provided to Individual A so that she could begin a
five day total collection program even though it was recognized thac she
probably had ac least one urine kit at home, since she had earlier been
placed on a weekly sampling schedule because of an occurrence on
July 31, 1974. Additional information concerning that occurrence is
pro\.ded elsewhere in this report.
When Individual A reported her contamination at 6:45 9.2., the filter
papers in the two air sample heads in Room 135 were changed. The room
was placed on respirator status, a routine precautionary measure which
is taken while the room is checked to find and eliminate the source
of che contamination. A health physics technician surveyed the room
and found no contamination except on two of the three gloves in
glovebox No. 3. The right glove read 5,000 d/m direct reading and
the siddle glove to which it was tied showed 2,000 d/m direct reading.
The two gloves were found entwined which is normally done when an
individual withdraws from them to prevent chem from being pulled into
the box by negative air pressure. Two shoe covers were found in the room, one
reading 2000 d/= and the other about 500 d/m. With che assistance of
a lab analyst, @ health physics technician removed the two contaminated
*The licensee's decontamination release limit is $00 d/m. The AEC's
decontamination release lisits for facilities and equipment are given in
Appendix F, pages 3-6.
A9
gloves from the glove ports, stored chem inside the glovebox and
installed new gloves. The room was taken off respirator status at
9 p.m. and the air sample filter papers vere changed again.
The following are the results of the air samples for the ones
4:00 p.m. to midnight, November 5, 1974.
Concentration
Tine Sampler No. {eicrocuries per miliiiicer)
4:00 p.m.-6:45 p.a. 18 6 x 10713
19 6 x 10713
6:45 p.m.-9:00 p.a. 18 3 x 10-12
19 <7 x 10-13
9:00 p.m.-Midnight 18 $ x lo~13
19 $s x 10713
AEC regulations permit sverage airborne plutonium concentrations in
occupied, restricted areas up to 2 x 10°~** microcuries per millilicer for
forty hours in any period of seven consecutive days.
The gloves removed from glovebox 3 were visually examined by Kerr-McGee
personnel and tested for holes by filling them with water on November 7.
No holes were found. A Region [II representative witnessed a second
test of the gloves on November 12 and no holes were found. (Appendix A)
After being decontaminated, Individual A returned to Room 135 ac 9 p.2.,
developed fil= and performed miscellaneous paperwork but did no more
work in the gloveboxes. She stated she left work at 1:10 a.2., sonitored
herself as she exited and found no contamination.
On Wednesday, November 6, Individual A arrived ac work at about 7:50 a.n.
She put on a smock and performed miscellaneous paperwork. Ac 8:50 a.s.
upon leaving the laboratory to attend a meeting, Individual A detected
contamination on her hands. She vent to the Health Physics Office for
decontamination. Surveys performed there detected contamination levels
up to several thousand d/m on her hands, right forearm and the right
side of her neck and face. Her hands vere successfully decontaminated
and since the other spots were fixed contamination she was released by
the health physics staff co attend a meeting which was being held in the
office area in the Uranium Plane Building. The meeting, which she
attended as 4 representative of Local 5283 of the O11 Chemical and
Atomic Workers Union along with two other representatives, was a negotiating
seeting with plant sanagemenc.
The seeting recessed ac noon and Individual A obtained pernission from
the healch physics office to leave the site for lunch with the other
union representatives. The seeting was resumed at about 1:30 p.m. and
was concluded ac 3:15 p.m. She and the other union representatives left
the planc fot further discussions and returned to the plant ac 4:10 9.2.
A 10
Individual A then went to the Health Physics Office as she had been
instructed that gorning. She was surveyed with the assistance of a female
employee and contamination up to 5,000 d/m was found on her right
forears, neck and face. A survey after decontamination indicated so
contamination greater than 500 d/m. Ic was decided she should allow
her skin and hair to dry sore thoroughly and to survey her again. A
final a2 perforned 30 minutes later showed no contamination greater
than 500 d/a.
After decontamination, Individual A requested that a nasal smear be taken.
The smear from one nostril showed about 170 d/m and the other showed about
30 d/s. A vresmear of the higher reading nostril showed about 30 d/a.
Since Individual A appeared to the health physics technician to be upset,
he pursued che aatter so further. The healch physics technician, however,
was concerned that the sose smears had shown anything, since she had sot
been in a radiation sone except for one hour that sorning. He therefore,
requested chat she return to the Health Physics Office for another sasal
smear when she reported for work the next sorning. As she prepared to leave,
Individual A requested a health physics technician survey her locker and
her automobile. These surveys vere sade and essentially soe contamination
was detected. She left the plant at about 7 ».s.
On Thursday sorning, November 7, Individual A reported to the Health
Physics Office at about 7:50 a.a. She brought with her one fecal sazvle
which was voided Wednesday night and four urine samples. Nasal smears
et each nostril were taken and they snowed 45,000 d/m. Direct surveys
showed 40,000 d/m om and around her nose and 4,000 d/m on the back of
her right hand and the thumb side of her left index finger. Nasal smears
taken after sasal irrigation showed a saximum of 300 d/m. A survey of
individual A's bedy showed contamination levels from 1,000 to 3,000 d/s
on her hands, arms, chest, back, neck, and right ear. Showering reduced
the contamination to less than 500 d/m. Nasal smears then showed a
@axiaus of 150 d/a.
Tle view of the nasal smear results, the outside surfaces of the urine
and fecal containers were smeared and found to be clean. The samples
were taken to the plant's emergency building where a preliminary check
of the samples was sade using « sodium iodide scintillation wound counter.
The four urine Jemples which were collected Tuesday night, Wednesday sorning
and night, and ursday sorning showed count rates of 170, 204, 137,
and 159 counts per ainute indicating significant activity in the samples.
Since all count rates vere similar, the samples were composited, and half
of the combined sample or 500 al was sent to the Kerr-McGee Technical
Center for analysis. A 250-al aliquot was subsequently sent to the
AEC Health Services Laboratory for analysis. The remainder, about 250 al
was retained at the planc.
eet toe
The fecal sample which was obtained Wednesday night, November 6, vas
alse checked with the wound counter. Count rates of about 30,000 co
40,000 counts per sinute vere seasured with the detector againsc the
container. This sample was also sent to the Kerr-McGee Technical Center
for analysis.
While Individual A was undergoing decontamination, surveys were sade of che
women's locker room, including the inside of her locker, the explovee
lumch room and her automobile. No contamination was found. Preparations
were then sade for health physics personnel to accompany Individual A
to survey her apartment which she shared with another lab analyst,
Individual 3B, who had worked from aidnight to § a.m. that sorning.
Upon arrival at the apartment at about 2 p.a., Individual 3 was awakened
and surveyed. Two areas, hands and buttocks, were found to be contaminated
te about 2,000 d/a.
The initial apartment survey revealed spotty contamination throughout
the apartment, but primarily in the bathroom, kitchen and Individual A's
bedroom. The highest contamination levels found were 100,000 d/m on ch
toilet seat and 400,000 d/m on a package of cheese and bologna in the
refrigerator.
Tadividuals A and 3 and the health physics personnel returned to the plant
where Individual 3 was decontaminated. A resurvey cf Individual A at this
time showed so contamination levels above 500 d/m. Nasal smears obtained
from Individual A showed a saximus of 24 d/s.
Preparations were sade for apartment decontamination which vas begun
‘later that day. From that time on, the two employees did sot again
occupy that apartment. They did, however, return to the apartmenc thac
evening to be present while the apartment's contents were surveyed and
various contaminated items removed for storage at the Kerr-McCee Planc.
Individual A did not re-enter the apartment but remained outside.
On November 6, Individual 5 had worked from midnight to 8 a.c. After
leaving work, she had stopped to feed her horse in che stable where ic
was kept. During the day, she had attended classes at a nearby college.
She also cleaned the apartment using two vacuum cleaners and washed some
clothes. Ina the late afternoon or early evening she fell asleep on the
couch and was awakened by Individuals A and C at about 10 p.m. Individuals
A and C left the aparteent and returned with pisza, beer and soft drinks
which the three of them consumed while sitting on the living room floor.
Individual 8 prepared « ham sandwich using bread and seat frome che
refrigerator, placed it in a plastic bag and in turn into a paper dag
along with some orange juice for her lunch at work. She left the apart-
Gent at about 11:30 p.s. to report for work at sidnight. Upen arrival
at the planc, she placed her lunch in the lunch room refrigerator.
A l2
Individual 3 stated that she left work at about § 4.a. on November 7,
stopped co feed her horse again and went immediately to the apartment.
As she entered che apartment, she beard the telephone ringing and ansvered
it using the instrument located in Individuals A's bedroom, Individuals
A and 3 having separate bedrooms. Individual 3 stated that the telephone
call was from Individual A informing her that planc personnel would be
coming to the apartment to check for contamination. Individual 3 stated
thac she chen wenc to the bathroom and from there into her bedroom where
she disrobed and went to bed.
Individual A stated that she had collected the fecal sample, which she
brought to the plant on November 7, immediately following her arrival at
the apartment at about 7:30 p.m. om the evening of November 6. Individual
C stated that when he arrived at the apartment at about 9 p.a. Individual
A was talking on the telephone. When she finished her call, they
avakened Individual 3 and went out for the pizza. Individual C staced
thac he and Individual A remained in the apartment after Individual 3
had departed for work. They listened to records and retired at about
lor 2 a.m. Individual C said they arose the follewing sorning about
6:50 a.m. Individual C went to his residence, changed clethes and vent
te work.
Individual A stated that she obtained a urine sample on the sorning of
November 7 and spilled some of the contents of the container. She wiped
off the container and bathroom fleor with tissue which she disposed of
in the commode. She also recalled having taken some bologna from the
refrigerator with the intention of preparing a sandwich for her lunch.
She carried the bologna into the bathroom, placed i¢ on the closed
commode top. While is the bathroom she recalled that she had part
of her Tuesday, November 5, lunch still at work and decided not to
make a sandwich. She then returned the bologna to the refrigerator.
She stated that she went directly to the Health Physics Office upon
her arrival at the plant on the seorning of November 7.
Through inicial surveys at the apartment on November 7, a health physics
technician ascertained that the pizza box and che empty beverage containers
which were found in the waste basket, were sot contaminated. The refrig-
erator in the plant lumch room, which was checked on the sorning of
November 7, was found free of contamination. The automobiles owned by
Individuals 8 and C were surveyed by Kerr-ticGee Health Physics personnel
on Nevember 7 and seo contamination vas found.
At their request, the vehicles of twe other employees vere surveyed on
November 7’ since Individual A hed ridden in them on November 6. They
wert found free of contamination.
During the evening of November 7, Individual C was requested te come
te Individwal A's apartmenc where he and his sutomeblie were surveyed by
to~
Kerr-“McGee personnel. lc contamination was found. A Kerr-“cCee health
physics technician accompanied Individual C to his residence and surveys
performed there detected so contamination.
On November &, Individual A was absent from work. She was, however, intervieved
by AEC representatives on that date. During this interview she requested
that boch she and her automobile be surveyed (See Appendix 3). individual
A provided assurances that the total collection bicassay program was
being continued. At the conclusion of the interview she provided four
urine samples which she stated she had collected during the sight of
November 7 and on November §. Individual A also stated that there were
two urine samples in her locker at the plant and provided the locker
key. These samples were obtained from the locker and sent to che
Kerr-McGee Technical Center for analysis. Dwring « subsequent parcial
interview with Individual A on November 13, she idencified che larger of
samples taken from her locker as having been collected during the
of October 27 - November 2. She stated the smaller sample hac been
ted while at the plant on November 7.
i
9 Individuals A and 5 were seen by the licensee's sedical
and an AEC sedical consultant, who was retained by Region III
Arrangements were sade for individuals A, 3 and © to be
Alamos Scientific Laboratory. The three
the Licensee's sedical consultanc departed
10 and were counted on November 11 and 12.
Tom these counts are contained is Appendix ©. Data
er in vive counting of these individuals by Helgeson
Nuclear Services, Inc. are contained in Appendix 5.. They returned to
the Oklahoma City area on the sight of November 12.
id
te
pe
Individuals A and 8 reported for work on November 1) and were restricced
from further radiation vork. Individual A left the plant about 5 9.2. on
November 13 and attended a union seeting in Crescenc, Oklahoma. Upon
the conclusion of the seeting at about 7 p.a., she left alone in her
@utomobile. At 8:05 p.m. the Oklahoma Stace Highway Pacrol received
notification of an accident involving Individual A's car. The sccident
Teport indicated that 7.3 ailes south of Crescent, Individual A's car,
traveling south, had run off the east side of the highway and had traveled
hitting « concrete retaining wall.
The Medical Examiner's report prepared by Dr. Robert £. Ringrose who
the bedy ac the Logan County Memorial Hospital, Guthrie,
on 13 indicates che probable cause of deach as aultiple
Ill represencacives
by « treeper of the Oklahous
State Fighway Pactrel performed surveys of Individual A's sutomebile and
was impounded in Crescenc.
Oklahoma. The accident scene, the Guthrie fire department ambulance and
the personnel who had removed and transported che corpse were also surveyed.
No contamination was found.
On November 14, « post gortem examination was performed at the State of
Oklahoma Medical Examiner's Facility, Oklahoma City. Representatives
from che AEC’s Los Alamos Scientic Laboratory participated in the post sortes
examination to obtain samples for analysis at the Los Alamos Sciencific
Laboratory. Amalytical data are being furnished to the AEC aedical consultant
for inclusion in his evaluation.
Licensee personnel completed decontamination of the apartment on December 2.
A report was prepared by the licensee containing data on the contamination
found, the action taken and the results of smear surveys performed upon
completion of the decontamination effort. A copy of this report is
attached to this report as Appendix E.
On December 3 representatives of the State of Oklahoma Health Department
and Region [II concurrently performed direct reading and smear surveys
of che apartment. By letter daced December 10, 1974, Region III advised
the Stace of Oklahoma Healch Department that che survey results showed
contamination levels within the apartmenc are below those specified in
an AEC guideline for the release of facilities for umrestricted use. A
copy of the December 10 letter with che Region III survey results and
the guideline are attached to this report as Appendix Ff.
Physica) Protection
The Licensee's Physical Security Program was last inspected in September
1974. Two icems of noncompliance which did not represent significance defects
in the program were idencified. The licensee's response in « letter dated
October 26, 1974, indicates corrective action has been initiated which
should bring the licensee's physical protection program inco full compliance
with requirements. The contamination found in the employee's apartment could
have been caused by less than 0.0003 grams of plutonium. No larger amounc
of plutonium was idencified off-plant during this invescigation.
July 3h, 2976 Occurrence
Prior to August 7, 1974, Individual A was assigned to the Enission
Spectrography Laboratory, Room 133. On July Ji-August 1, 1974, she
worked from 4:00 p.m. to 4:00 a.m. The two air sample filter papers
from Roos 13) for che 4:00 p.m. to aidmight shifc were found to have
high activity counts when analyzed. Individual A along with two other
A 15
employees who were also working in Room 133 during part of that period
of time were requested co submit urine and fecal samples for the next
four days. Individual A submicced fecal samples for August 1 and 6.
The first urine sample submitted was from an August 6 voiding.
On August 16, 1974, the licensee informed Region III by telephone of the
July 31 high air samples and stated that autoradiographs of the two air
sample filter papers showed patterns not expected for a typical air
sample. SBicassay samples from the three employees involved did noc
indicate an uptake of plutonium. In addition, an in vive count (lung)
of Individual A aade by Helgeson Nuclear Services, Inc., on Augusc 1,
1974, showed no detectable plutonium 239 or Americium 241. The licensee
stated he did sot consider this a valid exposure. The Region [Il
Tepresentative advised him that his evaluation would be reviewed during
@ subsequent iaspection.
On October 10, 1974, the licensee telephoned Region III to state chac
results of urine samples submitted for August 15 and August 25 had juse
been received. These results indicated possible uptake of plutoniun.
On the basis of the August 15 and August 25 sample results, the licensee
submitted a report to the Commission dated October 16, 1974, which is
attached to this report as Appendix G. Individual A is idencified in
the licensee's report as Employee A.
Ie that report che licensee stated: “The high-count air sample papers
were alpha autoradiographed and che resulting photograph showed «a
pattern not expected for a typical air sample.” A copy of that photo-
graph was obtained and is attached to this report as Appendix 4.
Bicassay sample data for Individual A for this period is as follows:
Dace Sample dos _per Sample Quantity of Samole
8/1/74 Fecal 0.5 148 grams
8/6/74 Fecal < 0.3 214 grams
8/6/74 Urine 0.4 1000 al
8/15/74 Urine 3.5 1100 al
8/25/74 Urine $.0 700 al
9/12/74 Urine ~ 0.1 800 al
10/8/74 Urine <0.1 900 al
Results on the urine samples subeicced on September 12 and October & vere
received by the licensee subsequent to his submission of che October 16
report to che Commission. These samples as indicated above shoved less
than 0.1 disintegrations per minute per sample.
Decontamination Facilities and ‘ethods
Personal decontamination at the plutonium plant is performed in a roca
adjoining the first aid room. Facilities include a sink, a bathcub with
shover, and a respirator dryer which can alse be used as a hair dryer.
If contamination is not removable by normal washing with soap and water,
further decontamination is performed usine Clorox and Tide. Potassius
permanganate is available if needed for extremely persistent contamination.
Decontamination wastes flow to holdup tanks, which are sampled for analysis
before discharge to the sanitary lagoon.
Rerr-“cGee Radiochemical Analytical Capability
The Kerr-cGee Technical Center is responsible for analyzing urine and fecal
samples for uranium and plutonium. The Kerr-McCee employee responsible for
the program is a Ph.D radiochemist. The program was established during
the spring of 1972.
Plutonium analysis is based on s paper entitled “Determination of Plutonius
im the Enviroment by Extraction and Liquid Scintillation Counting” by J. P.
Gaysels {pinGastzies Acomiaues snd tees seseh, 2a Additional alpha
liquid scinc tion counting techniques are based on work done by J. L.
McDowall at ORNL. The resultant procedures yield a chemical recovery of
98.52 + 1.5%. Greater than a two thousandfold separation from the ocher
actinides is obtained. The alpha detection limit is about 0.3 + 0.13 d/a/l.
Standardization is based on plutonium 239 reference sources (238-Pu + 261-a0
<4 Ui, 240-Pu < 42) obtained from Amersham Searle.
Before extraction, the ashe’ solids are acidified and filtered, resulcing
in liquid and solid fractions. The Kerr-McCGee radiochemise stated, con-
cerning oxides, the plutonium in the solid fraction would consist of material
thac had been fired at a temperature in excess of 700 C for at least one hour.
Plutonium in the liquid fraction yould consist of material that had been fired
at 4 temperature of less than 500°C for at least one hour. Plutonium fired
betveen 500 and 700°C would appear in both fractions. Plutonium in any other
form is expected to be solubilized by the wet ashing procedure.
As stated previously, bicassay samples are normally counted by liquid
scintillation. Other counting systems at the Technical Center which may
be employed are a low background, gas flov, proporational counting systes
or a 1,024 channel analyzer coupled with either a 400 mm” surface barrier
or Nal scintillation detector.
Urine and Fecal Analyses
Appendix I contains results of urine and fecal analyses performed for
Individual A from the beginning of her employment at Kerr-McGee in
A 17
August 1972 umcil her death on November 13, 1974. DOuring the period
November 5 through November 13 she was on 4 total collection progras.
Analytical differences among the participating laboratories cause zinor
difficulties in evaluating the bicassay data. For example Kerr-McCee
and United States Testing report total plutonium, while Los Alamos
reports Pu-238 and Pu-239 (the latter presumably including Pu-240), and
the AEC Health Services Laboratory reports Pu-239/240 and Pu-238.
Where possible, Los Alamos and the Health Services Laboratory analyzed
for Am-241 as well as plutonium. In some cases, samples having very small
plutonium concentrations were not analyzed for americium, whose smaller
concentration would have been difficult or impossible to seasure.
The licensee was unable to identify voiding dates for sample Nos. 20,
22, and 23. Further, identity of the latter two samples was lost such -
thac the analytical results cannot be assigned with certainty to th.
proper sample. The licensee, whose AEC license requires a urinalysis
program, is therefore in violation of 10 CFR Part 20.401(c), which requires
thac records of bicassays be preserved.
Appendix J contains results of urine and fecal analyses performed for
Individual 3 from the beginning of her employment ac Kerr-McCee through
November 1974.
Appendix K concains results of urine and fecal analyses perforsed for
Individual C while employed by Kerr-McCee from August 1969 to Sepcember
1974, and during November 1974 as a result of the incident under
invesctigacion.
Isotopic ratios found in fecal and urine samples are compared in Appendix L
with ratios found 1a other samples. Good agreement of Pu-239 to Pu-238
ratios was found. Except for two urine samples submitted by Individual A,
(Appendix I, Nos 25 and 27) Pu-239 to Am-241 ratios agreed reasonably vell
The two urine samples submitted by Individual A contained a higher percentage
of Am-241.
Kerr-HeCee Health Physics Records
A thorough audit of health physics records covering the period July 15
through November 22, 1974, revealed no plant conditions chat could have
caused a significance incake of plutonium. More than 3,600 pages of
tecord material. outlined in Appendix M, were reviewed. Except for che
instance described in the section of this report on Urine and Fecal
Analvses, these recurds effectiveiy cocument radiclogfcai condicions in
the plant and the effect of such conditions on persons within tne planc.
wince the incidence prompcing this audit did not involve radioactive
effluencs, neither effluenc nor environmencal records were reviewed
in depth during this invescigation.
Ae evidenced by 1866 pages of “Air Sample Data Sheets” containing the
tesulcs of about 40,000 routine and special air samples, the licensee
conducts an extensive in-plant air sampling program. The air samplers,
located throughout the plant, frequently reveal slight airborne radicactivity.
This occurs less frequently in the laboratory areas in which Individuals
A, 3B, and C worked than in some other portions of the plant.
With the exception of the July 31, 1974 occurrence, these records contain
no evidence thac significant airborne radioactivity occurred in the
laboratory during the period reviewed.
“air Sample Work Sheets” contain special calculations of airborne concentracti
Air sample data are used to determine MPC-hours of acutal or potential
exposure. These records contain no evidence of airborne concentrations
that could have caused significant exposure.
"Pluconium Special Air Test Report” forms document the taking of special
air samples. The forms do noc contain the air sample results, which are
recorded on the “Air Sample Data Sheets,” but do contain information regarding
che need for the special air sample. These records show no conditions
that might have caused significance exposure.
Health Physics sonthly reports for the sonths July through November, 1974
contain no evidence of conditions that might have caused significant
exposure.
Other records, including the "Contaminated Personnel or Personal Effects
Report” and the “Shift Log” show evidence of minor contamination probleas,
buc show no evidence of significant exposure.
Sever Svsces Survey
On November 14, samples for analysis by Kerr-McGee Technical Center and the
AEC Health Services Laboratory were obtained from the Edmond, Oklahoma
sewer system and sewage treatment plant by an RO: III representative,
a Kerr-McCee representative, and a representative of the Edmond Sewer
Departsenc.
The sewer system serving the area of Edmond in which the apartment is
located flows encirely by gravity to the treatment planc. The extended
aeration Coffee Creek Plant, which opened during July 1974, accepcs
sevage from two independent systems having a total flow of about 1.8 x 10
gallons per day. The sewer network for the area in which the apartmenc
is located accounts for about 6 x 10° gallons per day. Processing tine
is about two hours. Planet effluent, consisting of a clarified liquid,
discharges into Coffee Creek. Solids generated ac the plant are released
to a settling pond at specified intervals. No solid macerial leaves the
planc.
The following samples were taken: (1) sewer line approximately 400 feer
downstream of the apartment (first access point); (2) lift station at che
treatment plant; (3) settling pond at the treatment plant; (4) final
clarification pond ac the treatment plant; and (5) Coffee Creek approxi-
mately one quarter mile downstream of the plant discharge poisc.
Samples (3) and (5) were about half liquid and half solid. Samples (1)
and (2) contained small amounts of suspended solids. Sample (4) was
clear liquid.
In addition to the above samples, liquid samples were obtained on
November 12 from the apartment bathroom sink trap and kitchen sink
trap. The samples were taken by Kerr-McGee ezployees with a RO:III
representative present. Also on November 8, the liquid in the toilerc
bowl was collected by Kerr-McCee employees. On November 14, an R0:III
representative obtained a sample of this liquid.
Analysis of the samples by the AEC Health Services Laboratory yielded
the following results:
739 - 260 238
Semple Pu Pu
Sever line 3.9 + 0.3 x 1073 3+1x 10
Lift Station 2.4640.3 2 107 $+2x 1074
Settling Pond 1.0 + 0.3 x 107? 5.7 +3 x 10-4
Clarification pond
Coffee Creek
Bathroom sink trap
Kitchen sink trap
Toilet Bowl
9+2x 1074
3.9 + 0.7 x 1079
16.6 + 0.9
6.8 + 0.18 x 1072
4.3 + 0.2 x 107!
2+2x 107
8+3x 107%
2.02 + 0.12
7.6 + 0.4 x 1079
$.5 + 0.2 x 10-2
(1) Total activity per sample. All solids put into solution.
The above data provide no evidence that significant amounts of radio-
activity was released via or is presenc in the public sewer syste.
- Vv ok
A syrvey by Kerr-McCee health physics personnel on ‘iovember 7, 1974, of the
locker assigned to Individual A revealed no contamination. A survey of 106
ee ce we _—— -.
A 20
employee lockers made by Kerr-“McCee on November 14, 1974, revealed no con-
tamination except 2000 d/m in « locker assigned to an employee sot involved
in the occurrence under investigation. The contamination vas resoved.
Apartment Surveys snd Decontaszination
Shortly after noon on November 7, 1974, Kerr-McGee Health Physics repre-
sentatives sade a survey of Apartment No. 2 at 908 North Washington,
Edmond, Oklahoma. Later on the same day, more comprehensive survey and
decontamination efforts were begun by Kerr-McCee. These efforts continued
through December 2 and required a crew of 2 to 7 exployees.
Surveys in the vicinity of the apartment showed no radicactivity outside
the apartoent. Included in the surveys were an adjacent laundry and the
trash container used by the apartment complex. The highest levels of con-
taimination were found in the bathroom and the kitchen. Only smincr levels
of contamination were found in other rooms.
The following sajor contamination levels were found:
Lecation {¢em)
Bachroos Toilet Seat 100, 000
Sink 1,000 to 2,000
Tub (2 spots) 2,000
Mac 40 , 000
Floor 20,000
Kitchen Cabinet Top 20,000 7
Inside Refrigerator 3,000
Floor (sax. ) 20,060
Counter Top 1,000
Stove Sides 25,000
Chicken Package 6,000
Cheese Package* 600
Cheese 1,500 - 2,500
Bologna Package* 800 to 38,000
Bologna 400 to 2,500
Bedrooa Pillow Cases $00 = 1,000
Individual A Bed Sheets $00 = 2,000
Vacuum Cleaners Canister Type Noching Detectable
Seall Cleaner 40 - 50
Ductwork Filcer 1,000
Duct Wipes 8-10
* When initially surveyed while in the refrigerator, a wrapper containing both
the bologna and cheese packages was found to be contaminated to about
400,000 dpm. The lower levels were seasured after removal from the aparssent.
A 21
Air samples vere taken. throughout decontamination activities. The
air concentration on November 7, 1974, was 2.4 x 10°** sicrocuries per
millilcer. Full face respirators were vorn on thes date. Air con-
centrations on later dates were less than 4 x 10°*” agicrocuries per
willilcer.
Contamination was removed by repeated scrubbing where possible. Items
considered not decontazinable or difficult to survey were removed by
Kerr-McGee for treatment as contaminated waste. Furniture retoved
included the sofa, tables, television set, bedding, refrigerator, and
Tange. Carpeting was removed, as were a few tiles from the bathrocz.
About twelve fifty-five gallon drums of smaller articles were removed.
These materials were taken to the Cimarron Facility pending final disposiscion.
The heating system ductwork was cleaned and filters were replaced. Fach
apartoenc has its own heating system.
Direct reading surveys and smear surveys were made continually during
the encire period. Final direct reading surveys sade by Kerr-McCee showed
<€200 disintegrations per minute per probe area of 60 ca* (sinisus
dectectable). Of a total of about 1100 smear surveys, 140 showed
positive results. The highest was 24 disiategrations per sisute.
Areas smeared ranged from 1,000 ca? to 10,000 cm?. Details are
in attached report from Kerr-McCee to the Oklahoua State Deparssen:
of Health. (Appendix £)
On December 3, 1974, RO:III made radiation surveys of the apartnen:.
All direct measurements were less than 300 disincegrations per sinute
per probe area (60 cm“) (minimum detectable). Thirty-five smear
samples were taken and counted at Argonne Nacional Laboratory. Of these,
only 4 showed positive results. The highest was 0.36 dpm per 100 c=~.
Sample results are in the December 10, 1974 letter from RO:III to the
Oklahoma State Department of Health (Appendix F).
Resurvey_of Articles Removed from The Apartzent
On December 2, 1974, twelve S5-gallon drums of materials removed
from the apartment were inspected and spot contamination surveys
were gade. Contaminated furniture was not resurveyed ac this tine.
Several articles were obcained by Kerr-McGee to help in their
investigation. Included in these were several vials. The caps of
the vials were removed and the vials checked with a portable alpha
survey meter; no contamination was detected. Portions of the bach
mat and the toilet seat cover were retrieved by Kerr McGee to obtain
radioactive saterial for analysis by Bactelle-Norcthwest, a Kerr-McCee
consultant. Spot survey checks made during the inspection revealed no
radioactivity above that previously identified during the apartment
surveys. F
2 = oe.
A 22
Handling of the drums and caterials was done by Kerr-McGee Healch
Physics personnel, who wore protective clothing and full face
tespirators. <A representative from Region III and a licensee con-
sultant from Bactelle-Northwest were present as observers. All
other observers were Kerr-McGee personnel. A plastic tent for
contamination control had previously been erected near the door in
Room 123, the Fabrication Room. Observers stationed in the corridor
were able to see chrough the door windows. Air samples taken during
the operation were all less than MPC.
Exposure Evaluation
The results of bicassay analyses, lung and whole bedy (in vivo) counts,
and analysis of tissues obtained post-cortem are being evaluated by a
medical consultant to the AEC. Since all such data are sot yet available,
final conclusions cannot be drawn. However, the sedical consultant has
tentatively concluded that: :
1. Individual A's body contained a small amount of plutonius,
probably less than one half the maximum permissible body burden
ef forty nanocuries.
2. Plutonium concentrations found in urine samples subsictted after
8:00 a.a. of November 7, 1974, appear to be consistence with
preliminary post-mortem findings and with in vivo findings.
(Appendices C and I)
3. Plutonium concentrations found in certain urine samples subsicted
from mid-October 1974 through 8:00 a.cq. on November 7, 1974, do
mot appear to be consistent with preliminary post-mortem findings
and with in vivo findings. (Appendix I, Nos. 22, 23, 28, and 27)
These concentrations probably resulted from exogenous contamination.
This conclusion is supported by the fact that plutonium-co-americiva
ratios in urine samples 25 and 27 is not consistenc with ratios found
post-mortem in body tissues.
No conclusions have been drawn concerning the source of plutonium
found in fecal samples or the relationship of fecal, in vive, and
post-mortem data.
Bicassay analyses and in vivo counts have not indicated significance
uptake of plutonium by either Individual 3B or Individual C. Since
all data are sot yet available, final conclusions cannot be drawn
concerning the nature or extent of these exposures.
All bioassay, in vivo counting, and post-mortem sample data are being
furnished to the AEC medical consultant for inclusion in his evaluation
of the medical aspects of the case. When received, his report will be
appended to this report as Appendix \.
Attachments:
Appendices A through
A 23
APPENDIX A
Examination of Cloves Removed Free Giove Box 43, Roos 125
A survey of the gloves on glove box 3, Room 135, on November 5, 1974,
showed direct readings of 5000 disintegrations per ainute on the right
glove and 2000 disintegrations per ainute on the left glove. The gloves
were replaced on swing shift, November 5. The removed gloves were
placed in a bag and left in Glove Box No. 3. ;
On November 7, 1974, the gloves were visually inspected and were chen
tested, first by trapping air in each glove and then dy filling with
water to test for leaks. No leaks vere detected.
On November 11, 1974, a Region III represencative observed a repeat of
the tests performed on November 7. No leaks were detected. The gloves
appeared to be in very good condition.
APPENDIX 3
Contamination Survevs
ledividual A - At approximately 2:30 p.m. on November 8, 1974, an AEC
inspector surveyed Individuals A's arms, face, neck, hair, and outer
clothing for alpha contamination. None was found other than a trace
(probably less than one disintegration per second) on her forearms and
neck.
Serer of tt - On November 6, 1974, the licensee surveyed
ividual A's car at her request. The survey revealed no contamination
greacer than the licensee's release limit of 500 disintegrations per
@inute. The survey was repeated on November 7. No contamination vas
found. At approximately 6:30 p.a. on November 8, an AEC inspector surveyed
the car for alpha contamination. None was detected using @ survey inscrumenc
having « sensitivity of about one disintegration persecond. A tore sensitive
survey made by the licensee on November 9 revealed slight removable
contamination, the maximum being 0.7 disintegration per second found on
some svitches. ’
A survey by an AEC inspector of the wrecked car and contents at approximately
1:00 a.m. on November 14 revealed no contamination.
v . A - A survey of Individual C's car and
aparcmenc by che licensee on November 7, 1974, revealed no contaminacion.
Bese Ste ~ A ® rvey of Individual 3's car by the licensee on
November 7, 4, revealed no contamination.
Accident Sie etait ts - A survey by AEC inspectors of the.
accident site, ambulance, ambulance crew, and sheets used to cover
Individual A's body revealed no contamination.
A 24
APPEND I ¢
in Vive Counts At Los Alamos
Individual Time Area Count Nanocuries*
~Sounted. Date of Dey Counted Tise (Min) Ap _ Pu Commencs
¢ 11/11/74 1017 Lungs 30 < MDA <MBA
11/12/74 0930 Lungs 20 < MDA <A
11/11/74 1429 Whele Body 30 Nornal body
activicy
3 11/11/74 1104 Lung % < MA CMA
11/12/74 0950 Lung 1s (MA 6 MDA
11/12/74 1008 Suctocks 5 No detectable
activity
11/12/76 1015S Hands 5 No detectable
' activicy
11/11/74 1500 Whele bedy 30 Normal body
activity
A 11/11/76 1140 Lung 30 0.3540.07 «MDA :
11/12/74 1025 Lung 30 0.3340.06 <MDa
11/12/76 1134 Left Chest 30 0.1540.03 (Ma
11/12/76 1056 Right Chese 30 0.1650.03 MDA
11/12/74 1235 Left Abdomen 20 No detectable
activity
11/12/74 1212 Right Abdomen 30 No detectable
activity
11/12/74 1256 Pubic Ares 5 No detectable
activity
11/11/74 1536 Whole body 30 Normal body
activicy
“Minimum Detectable Activity (MDA) for americium and plutonium were about
0.3 and 8 nanocuries, respectively.
A 25
in Vive Counting Sv Helgeson Nuclear Services, inc.
Individual
Counted “ Pase
A 8/1/74
3 8/5/74
¢c 2/24/72
1/29/74
Nanocuries*
“2 Py
<0.05 “<6
“40.06 <1
0.15 <6
<0. 06 <7
*"Less than” values are based on « SOE confidence level.
KERA-MOGEE °° 8) uGiTURATOS
December 4, 1974
Mr. Dale McHard
Occupational and Radiological Health Service
Cklahoma State Departrnent of Health
N. E. 10th and Stonewall
Cklahoma City, Oklahoma 73105
Dear Mr. McHard:
This letter is notice that the apartment dwelling #2 located at
908 N. Washington, in Edmond, Oklahoma, has been cleansed ~
free of plutonium contamination to the extent that only back-
ground levels of radioactivity are now detected.
Very truly yours,
Gerald Sinke, Coordinator
Radiation Health and Safety
CJS imbd
Appendix E£ 1 of 3
_—*
———
A 27
KERR-MeGEE ( JRPORATION
INTERNAL CORRESPONCENCE
To Morgan Moore pats December 3, 1974
prom A. W. Norwood - suostct Release of Edmond Apartment
This correspondence is notice that the apartment dwelling #2
located at 908 N. Washington, in Edmond, Oklahoma has becn
cleansed free of plutonium contamination to the extent that
only background levels of radioactivity are now detected.
Listed below is documentation of the instrumentation used to
make the rele: ¢ surveys: : ;
1. The equipment used to obtain the smear survey data in this
ort consists of a five inch NAI crystal coated with tinc
sulfide for alpha scintillation detection. The detector
is powered by a Ludlum 2500 power supply. The equipment
was calibrated daily with a Pu 239 (660 d/m) standard source.
The equipment operates with a counting efficiency of 25%
and with an average background of 0.2 d/a.
2. The direct reading surveys were made with an Dberline PRN-¢6
portable alpha survey instrument. This instrument has pre
nade | to make positive detection of 200 d/m per 60 cx
a
above background.
Smears of the apartment were taken with 4.25 cm Whatgan t)
filter paper. @ areas smeared varied from 1,000 cm* to
1 sq. meter. Listed below is a summary of the smear results
obtained:
. Number Level of Number of
of 0 d/m Smears Smears Total
Date Location Smears Above 0 d/m Above 0 d/m Smears
Nov. 20 Bathroom 9 4-8 d/m 1 10
Front 7s 0 d/a 0 7$
Bedroom
Back 7$ Q d/a 0 7$
Bedroom :
Bathroom 69 4-8 d/a 6 75
Hall 34 4-8 d/m 2 36
Bathroom 4 4-8 d/am 3 ?
Kitchen 99 4-24d/m j 100
Dining $0 0 d/a fe) $0
Room and
Kitchen
Closets
Appendix £ 2 of 3
MuCilee Giving
sw mee ee
A 28
Morgan Moore
December 3, 1974
Page 2
Number of Level of Number of
0 d/m Smears Smears Tota
Date Location Smears Above O d/m Above O.d/m Sm
Nov. 29 Dining Room 27 4-8 d/a a 31
Kitchen 27 4-l2d/am 13 40
Living Room 47 4 d/a 3 $0
Bathrooa 40 4-l2d/m 10 $0
Hall 17 4-8 d/a 3 20
Front Bedrooa 44 4-8 d/a 6 $0
Back Bedroom 46 4-l2d/a 4 $0
Dec. 2 Dining Room 42 4-8 d/m 8 +t]
Kitchen 36 4-8 d/m 14 $0
Living Roos 67 4-8 d/m 8 7s
Bathroom 41 4-l2d/m 9 $0
Hall 21 4-8 d/a 4 2s
Front Bedroom 38 4-8 d/m 12 so
Back Bedroom 41 4-l2d/a 9 $0
Ventilation System 9 8 d/a 1 10
Dec. 3 All Areas 31 4-1l6d/n 19 so
On December 53,1974, the apartment was turned over to representative
of AEC and the State Ilcalth Department for their inspection and
approval. Direct readings show no detectable contamination in the
apartment.
The smears taken by AC will be sent to Argonne National Lab. for
nee tee | and there will be some time delay before the results are
received.
On December 4, 1974, smears with detectable levels that were
taken on December 3 were recounted for ten(10) minutes. Smears
which had shown 12 to 16 d/m on December 3 showed only 0.9 to 1.2
on December 4. The natural Radon-Thoron daughter activity had de-
cayed off leaving only 0.9 to 1.2 d/m on the smears.
aA. ~/, fo.
A. W. Norwood
AWN/ raj
Appendix E 3 of 3
A 29
ome svares
_* “aTomic ENERGY COMMISSION :
_* . “&
\ DIRECTORATE OF REGULATORY OPERATIONS ,
a ; REGION II! ; ;
. > tye 798 ROOSEVELT ROAO roo
- . ca** ad " imp @aa-cece
4 ; gus Pees | — oum LINO 60137 -
ae? camhs R* et tt pets ’ ™ ™
. , .*3 Ss Fm PS ot ; . ~
-#" . es Se ‘Deceader 10, 1974 . "ts
* . Ze 2 o ve, atae,? * "»@ -. ’
. - — “¢ so dee, OF .. ° , . .* Ps
“4 aa a . . oS wv. del hd ?. "hs . +e Se . , ‘ ~<
' . % +* se . . . me'%e of ow we . : 7 d
. é ‘+. ®@es e® + °s
este ‘Me. Dale J, MeBerd, Désector a : , 4% 3
-"-« » @geupational & Radiological Realts ; oe , ooo ; -
‘el Bavdedon aad cu ar J + oo,
ae ‘.. State of Cklahoca ates & faye ohbs .
ve . Departeest of Ucalsh : “ee a ee
wht. ¥ 3400 Morth Eastern Avenue co Hs og ete.S &
“. °° Qehahoma City, Oklahoma 73105 . . oy
°. *~« —_ k the * « ‘s 7. es % fe .
7 habeoad Me. MeHard: i -. , . f : "0 eo: ‘, . ' Pa P : ‘oe ' * -
ok Qn Decenber 3, 1974, 7 “sepreseazative ¢ thie office wade radietion surveys
"ss tL: @f Apartment Ne. 2, 908 NM. Veehdacten Street, Edmoet, Okichosa,
ow 8 eoucurreatly vith surveys perforsad by 4@ Tropresentative of your office.
-* 0°
“ody, | (Owe direct radistion seasuresests vere sade vith an Eberline Model PAC=2¢
eet <, @lpha survey cater, Serial Ho, 931. The ceter vas calibrated with a
‘+ > * * phusenium calidratios a Serial to. P5753, provided by the OkLahesa
-uccel: State Usalth Department. ae wecousenente were less thas
——s “. 308 dpa per prota ares (60 es were “s
a. 8 Scat samples for removable ‘eoutantnestes were made over areas of 1600
~" "°° equate ceatiseters. The sasples were counted at Argonse National
~ % .°. -Laberatery. Only four_semples were higher chan the ainieus detectable
‘s" o @f 0,05 dpm per 100 2, The highest was 0. 36 dps per 100 en?, Rosults
— ane attached to this letter. 4 8 Se
Ang. ,* The tesults of this survey shov that contamination levels within the
; ' epartsent are below the levels epecified in the attached AEC Cuidelines
e.° -« for Decontamination of Facilitieo and Equipment Prior To Nelosee for
- «++ Unrestricted Vec or Termination of Liceuses for Bypreduct, Source, or
ee” " Spectad Nuclear Material.
. Ty . ,
» "a we teh. ©" ss Fo th
. » wee TR ete) ee Sdaceraly yours,
‘ fa ° S&S * ‘ -. 2 ® ‘ ‘
. # >. o @e ie * ' wit sys "- @: @.s B* 2 i
nal . . 4 . "ee © * 2 .ePree eo’ << — .
4 tes *.G 45 2 @e 8 eee . .
e "« .* 0% 10 Oe . . . es . ‘ '
* echt, . ‘ogee ogee S88 "es Jemee GC. Keppler. ¥ :
as " Fem Ss 8S Ragdonal Director © ns .”
a . Attachsents: > ws _ ok gets . be
—eee ‘e Bi- ao —
. _—— eee *> a ** Cas -_ - * * “ss: «© e e
. . a : .
, Appendix F 1 of 6
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BYSSEUBESSeSENEBe Ete tEEs
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ms 2 * ob Volt"
*
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* Less than 0.05 dpe
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‘Tleer Near “Refrigerator
' Wall Near Refrigerator
_ | Sink Counter
. Cabinet Shelf
Dishwasher
' Top of Toilet
"+ Imgdde Door Bell Cover
"Base of Toilet
Tub
, Sink end Counter
Floor by Toilet
‘Ceadling Near Air Return
. Wall
Wall -
per 100
. =: eae -APRenddx r
Yloor Near Refrigerstor
Yloor Near Range
Wall By Range
Sink :
Floor Near Sink.
36
Top of Dresser
Doerknobs
Floor Near Door
Windew $ill
a
—
5
eee: eseeses
Windew $ill
=.
ses fe 2 2 © =
oa
Wall
Wall
Knobs
Cabinet
Floor :
Cabinet Shelf
a8
.
- af 2 .
° ‘
2 . °
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:
au
5 @
2 of 6
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GUIDELINES FOR
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2 ve on - Pad
re °. ee 7 & & ‘ * 9. *. .
ae so. 3. The radioactivity on the interior surfaces of pipes, drain lines,
"Se Pe*.. /v',@@ ductwork shall be determined dy aaking seaturezents st all traps, —
~~‘ = 7° -& Y'and other appropriate access points, provided rhat contavinstion ac
Ge “Sthese locations is likely to be representative of contacinscion on
a ant the interior of the pipes, drain lines, or ductwork. Surfaces of
ope’ “ssa bUt are of such size, construction, or location as to aake the surface
5, OO ‘s% My include, but would not be limited to, spect
aed
A
*
.
e ®@
Se ae * - © a : - gee“ ‘ 9
. °° The dnatructions in this Guice in conjunction with Tobles I and IT
— specify the radioactivity end radiation exposure rate limite which
should be used in accomplishing the decontssinatiun and survey of sur-
. faces of premises and equipzent prior cto sbandenmuunt or release for
. wntestricted use. The lisits in Tables 1 end IT vo noe apply to presices,
£.¢ , @quipasnt, or scrap containing induced rediosetivity fer which the tadioe
.% + Mogdeal considerations pertinent to their use may be differeat. The
‘ gelease of such facilittes or items froa regulatory control «ill be con-
‘+ gddered on a case-by-case basis. tee +"
.4:° Pi ° ° “= ? “as a . . ’ ” . .
*.%* Ly The licensee shall mske 2 reasonable effort to climinate residual
“ge ‘Tes tp Contamination. . - ao
’ : a:,@
“ - a of at, Pee ‘ fo? . ;
¢ m4 © . a" “+, . . a s . ° e” % . ° % ? . .
ae 2. Radioactivity on equipment or surfaces shall not be covered’ by pains,
oem. \ plating, or other covering material unless concasinetion levels, 3s
j «., “.:4m Tables I or IZ prior to applying, the covering. A reaconsble effort
wet lhe 2? eet be made co mininise the contamination prior to use of sny
Figs, 2. -. covering. — ; .
.
e % .? .
” #¢ a ' 9S ., *qen ~~
mre 8 ak premises, equipment, or scrap which are likdly co be cont taineted
Rete *: “i: ipaccessible for putposes of measurement shsll be presuzed to be
7 . . *@e*
oe" y's a °. € v
.
oe he 4 ‘Upen Tequest, the Comission Gay authorize Py licensee to relinquish
Ft . &..7 pessession or control of Premises, equipment, or scrap having surfaces
"Je Contaminated with materials in excess of the licite specified. This
al cdircumerances such
i \ “¢. @® razing of buildings, transfer of Premises to another orpanizat ion
yo? ~ “* continuing work vith radioactive materials, or conversion of faciliites
“sme ®s *.. 5 80 @ long-term storage or standby status. Such tequesss sust: oe
* = ps _—- ° . . 1
- * tee pitas Provide detailed, specific inforwation describing the premises,
° DP . «0-: @quipment or serap, radiosetive Contaminants, and the nature,
“, ++ @tent, and degree of residual surface contamination.
>. . . . .
a e . . 7 . —
+t. 5 "be Prewide » detatled health and safety analysis which reflects that
tee o:" the residual amounts of materials on surface areas, together with
: “* 2"° @ther considerations such a8 prenpective use of the premises, ,
©. 68 “9 > @qeipment or serap, are welikely te resulr in an unreasonable
*., a Fisk to the health dud safety of the publie. ‘
A | , * A re ee rin’ “ys ye o< a ; *
~ Po “oo* ec. *+ ** eee - 7 ‘ Appendix r . ‘4 et $ :
°. ° ioo* *; . *, “1 r ° .
” of « “s woe Tees Met EN es ¢ ;
> - ont cnn, s . .7e
et . . a e be ‘A 33 ° .
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a P " A . —" A .° 30." e e , t: ° ’ :
# . m ‘, . *, . al - me 7 . ° ta Ae . . 3 4 : P
5. Prior to relesce of promices for unrestricted vse, the licensee shall
~ . make a comprehensive radiution survuy which estcdliches that contan-
ot inetion is within the limits specified in Tubles I or Il. A copy of
a . the survey report shall Le filed with the Director, Moterials Srench,
_ Dadveetorate of Licensing, 'ISAEC, Weabingto:, D.C. 20545, and also
a . the Director of the Regions] Office of tha Directorate of Reguletory
, * , Operations, USAC, having jurisdiction.’ The report should be filed
, wet Ot least 30 days prior to the ron date of abandonment. The
2's, 4 Se sugeus verey, ot. « § serene, r¥ ete als .
a eer ee Oe ke iy ~ <8 ree | ,
> ‘hee Identity the premises. _™ a rs ats “tan Ay z. caf :
ee : ee -e* : on ee, ; F j “* . s
pa "be Show that reasonable effort has been nade to iséinete residual
pot MT ae “ qgatanfnetion. "hE, res
ce ee. ae’ oe, . e 2 o%. i * Lo a *
Ps oe. res Describe the scope of the wurve? and gener! gocesteres followed.
A a State the findings of the surevey, in waite + pect fied in the
\- A * instruction. wr ; :
Lt i 27%, %8 ets ms eo ie Sao :
so" . Follewing review of the sepert, the “AEC “wild sonsices visting the
an facilities to confirm the survey. + ere eee : .
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‘+, -Mr, Donald F
A 35
° * - : \
{ages} KERR-MCGEE NUCLEAR CORPORATION
October 16, 1974
ee” : > ep * a . -
- Knuth, Ofrector
. Directorate of Regulatory Operations |
* United States Atomic Energy Commission
Washington, 0.C. 20545
Re: License #SNM-1174, Docket #70-1193
.* +" ve. «a '
Dear Mr. Knuth: 7 oe See Lee Pe
-
Kerr-MeGee Muclear Corporation hereby reports that two
employees were potentially exposed to airborne concentra-
noe of insoluble plutonium 239 in excess of the applicable
: mits. ° re a es ° .
.* bets 34 2. be . +" a®
,.,, The potential exposure data is as follows: LA eee
~. g Emplovee . Exposure Period Average 40 Hr. Concentration
(Te AT) duly 28 © Aug. 3,°1974 3.71 x 10°10 uetym
LRP TB LST auly 28 + Aug. 3, 1976 * 1,59 x 10°! ucts
This possible exposure to these enplagets occurred during the
4:00 p.a. - midnight work shift on July 31, 1974 in room #133
of the laboratory section in the plutonium plant. Employee A
worked over-time until 4:00 a.m. the next morning. She spent
approximately 7 hours in the room before midnight, and nearly
4 hours after sidnight. ©... og. :
.»* * . ** * wey @*. “a
Employee 8 spent 3 hours in the room before midnight. Another
person (employee C) spent 10 minutes in the room and his
exposure was esticated to be 8.8 MPC hours. Set Z.
Employee A was working in glovebox Z, preparing samples for
emission spectrography. Not once did employee A, 8 or employee
C notice anything which could have caused an airborne problem.
Self monitoring with instruments showed no contamination.
; © ° id
Appendix G 1 Of 3
. The two afr samples {in the room were changed by a health
...was done. This contamination was not considered to be a
' . , Contributor to the high air-count samples.
es for the next 4 days. These samples were analyzed for
“ gan uptake of Pu. In addition, employee A was in-vivo lung
.* Counted later in the day on 8/1/74. The lung count results
A 36
Mr. Donald F. Knuth
October 16, 1974 “
Page Two .
physics technician shortly before midnight. These samples
were latcr found to have high counts. ithe air samples fer
the previous work shift were normal and the next samples,
from midnight to 8:00 a.m., were also normal).
After the high samples were discovered on the 8:00 a.m. -
4:00 p.m. shift of 8/1/74, room 133 was posted as a
respirator use area, and a careful survey was cade for con-
tamination. No contamination was found on box Z, on floors,
walls, room exhaust filters or other equipment. A small
area on top of glovebox Y had some contamination as did a
flange to the vacuum systems above box Y. Decontamination
Employees A, 8 and C were placed on a daily bicassay sampling
u by a procedure having a lower sensitivity of 0.5 dpom/!
(for urine) and 0.5 dpm/kg (for feces). These are rapid
procedures. The sample analytical results did not indicate
were negative for both 239 Pu and 241 Am.
The high-count air sample papers were alpha autoradiographed
and the resulting photograph showed a pattern not expected
for a typical air sample. The high count papers were then
subjected to a solubility test and the contaminate was found
to be 3.43 soluble and 96.6% insoluble.
The lack of evidence confirming exposure prompted the collectio
of follow-up urine samples to be analyzed by a lengthy auto-
radiographic method giving a lower sensitivity of 0.1 dpm.
Employee A submitted urine samples on 8/15/75 and 8/25/74.
The results of these samples were received on 10/10/74. The
results were 3.51 dpm/1100 ml. for the 8/15/74 sample and
4.98 dpm/700 ml. for the 8/25/74 sample.
| | om + ” Appendix ¢ 2 of 3
>
we
Mr. Donald F. Knuth
October 16, 1974
Page Three
oe’: 4, :
‘~e ° am. «
Employee A is now on a vaskty bioassay sampling program
whi ch will be sustained until enough data hes been eccumu-
' . lated to assign a burden value or until three consecut iv
$ samples have results less than 1.0 dpm. ;
An initial estimate of intake for employee A from the air
sample data is 2.6 penccurtes hex ‘the he | seven hour period
in room 133; as follows: . rR
The air concentration averaged 19, 475 dpm with a volume of
27,187 liters (960 ft?) resulting in a concentration of
o. 7165 dpm/liter. A woman's light activity breathing rate
is 19 liters/minute. In seven hours, 7,980 liters of air
containing 5,718 dpm could have been breathed. This is
+ equivalent to 2.6 nanocuries.
Since lung retention of insoluble partiestetes ($0-500 day
‘ 1/2 life) is 1243 of the intake, the ultimate lung burden
‘could hardly be more than 0.31 nanocuries. 16.0 nanocuries
is the maximum permitted lung burden. .
Employees 8 and C will be bloassay sampled further to
determine if any internal deposition of plutonium is present.
Employee A is no longer working with unencapsulated plutoniun
materials. She now works in an area of very low exposure
potential. This work restriction will remain in effect until
we are certain that it is no longer necessary.
S A ‘eapy of this report will be supplied to employees A and 8
in accordance with Part 19 regulations. Im accordance with
. Part 20.405, the employees’ identification and exposure data
are Visted on the enclosed aaaueareas
Wd. Shelley, Director
gulation& Contro}
rr-McGée Nuclear srpHren Ss
WJS:a1 . ” if a
cc: Mr. James Keppler
Mr. Dale McHard
; : h | | ns ie ‘ Appendix GC 3 of 3
A 38
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| A 48
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A 49
“air Sample Data Sheet”
“Air Sample Work Sheet”
“Plutonium Special Air Test Report”
Health Physics Monthly Reports
"Contamination Incident Report”
“Contaminated Personnel or Personal
Effects Report”
“Special Radiation Survey Report”
A 50
RO INVESTIGATION REPORT NO. 74-09
DIRECTORATE OF REGULATORY CPERATIOwS
, REGION LIZ
SMOMARY REPORT OF EVALUATION OF BIG@MEDICAL
ASPECTS OF THE KERR-McCEE PERSONGEL
CONTAMINATION INCIDENT REPORTED NOVEMBER 7, 1974
A 51
Summary Report
To: Mr. James Allen
Aoi “i Regulatory Commission
on 4 i
2. PY dee
From: Niel Wald, neha Consultan
Date: 6 February 1975
Subject: Summary Report of Evaluation of Siomedical Aspects of the
Kerr-McGee Personne! Contamination Incident Reported
Movember 7, 1974
This is a report of the investigation of the biomedical aspects of
an exposure incident at the Kerr-McGee plutonium facility in Cimarror,
Oklahoma which was carried out in accordance with “our telephone instructions
of 10:30 AK, 8 November 1974. Individual A was the employee directly
involved, but evaluations were also made for Individual 8, ner roormate,
who wes also a Kerr-iic®ce employee, and Individual C, a friend and former
employee of the facility.
n ils of ncident:
R.O. Investigation Report No. 74-09 provides a summary of the facts
in this incident.
ical ltant Investication:
In view of the unusual contamination histery of the preceding several
days, beginning on 5 November 74, the preliminary gross bioassay results
which suggested a possible intake of 100 microcuries or more of mobile
plutonium-239; and Individual A's reported umrillingness to return to work,
collect excreta, cr accept OTA therapy without some guidance yn
her health status, arrancaments were made to travel to Oklahoma City en
8 November 1974. Attempts to talk with the company medical consultant
via telephon2 prior to departure in mid-afternoon were not successful. On
arrival in Oklahoma City ct 10:30 PH discussions were held with the AEC
Regulatory Operations (R.0.) investigating team concerning the current
Status of their work. An interview was arranged with Individual A at
9:00 AH the next morning. At midnight the company medica! consultant was
reached by telephone. He had not yet seen the individual involved in the
incident and was planning to arrive in Oklahoma City from Albuquercue at
about 11:30 AM on 9 iovember. He gave approval to the planned meeting with
Individual A, agreed to meet with me following his arrival, and asked me
to infyuinw Individual A that he would be available to her thereafter.
A 32
At 9:30 AM on 9 November Individual A was interviewed. At her
request the legislative assistant to the Of], Chemical and Atomic Workers
Union, and Individual C, whe accompanied her, remained in the room as cic
a member of the 2.0. team who accompanied me. Individual A epcesred
tense and anxious, frequently see.ing support and reassurance ‘rom
Individual C and the Union staff member.
Pertinent historical information included a history of brencnial
pneumonia and asthma from about 6 conths to 15 vears of age whi. living
in Corpus Christi area of Texas. Treatment with gemma globulin seened
to be helpful. Then the asthma gradually disappeared Sut nilder episoces
of hay fever persistad. An old left nasal fracture resulted in unilatere!
chronically impaired breathing.
More recentiy, about October 1973, Individual A had a ‘ung infection
for which diagnostic chest x-rays were performed. She recoveres Sy sumrer.
About Octoter 1974 a lung infection recurred lasting about 2 to 4 weeks,
with diagrostic chest x-rays performed about 2 weeks ago. She was under
the treatment of a physician in Oklahoma City. An additiona! odservation
was of hypertension for which he had given her some relaxant sadication.
This was discontinued on November Sth because of some side effects
interfering with her work. She showed me a container with severa! tyocs
of capsules and pills including one she identified as Tyleno! no. 3
in analgesic containing acetaminophen, 3CO mg. and codeine pmosohate,
mg.). She was a cigarette smoker, using about a pack a day.
Individual A appeared intslligent snd had completed 2 years of college
training aimed at medical secine logy when she stopped for marriage anc 3
children. Following dissolution of the marriage she moved to Oklansma City
about 3 years ago and began working at Kerr-McGee as a technician.
Individual A stated that she was concerned by the plutonium contamina-
tion findings and the ted decontamination procedures which began on
S$ November. Shé also felt that the company's response to the incident by
a counse! take a deposition from her more promptly than they
vi what she considered knowledgeable medica! counse! was not he'pful.
the morning of liovember #th, therefore, she decided not to report
to work unti] she had received such knowledgeable guidance concerning
her health status. She was informed of the company medical consultant's
expected arrival and agreed to meet with him in the early afternoon.
Discussions were then held with the Kerr-McGee medical consultant ans
their Coordinator of Radiation tiealth and Safety in the course of which |
arra ts were confirmed for whole body and chest counting as wel! as
additions! bioassay sampling to Le carried out at Los Alamos Scientific
Ladera for Individuals A anc C. Individual @ was then interviewed by
the Kerr-McCee medical consultant and me. In view of her concerns about
the covtamination of the aparteont she shared with Individual A it was
decided to included her in the in-vivo counting arrangement. Individuals
A and C then returned along with several mumbers of the O1!, Chemical and
A 53
Atomic Workers Union. Following general discussion aimed at clarifying
the health issues involved and the eopropriate diagnostic procedures,
the Karr-iicGee medical consultant arra for aporopriate clinical
laboratory and x-ray examinations at a local hospital that afternoon. it
was also planned by him to administer one dose cf CTPA to Individual A at
that tise. Ne had indicated that this was to have Seen given on ‘overser
a y | clinic near the plant but Individual A nad not reported for work
t :
Following departure of Individuals A, 8 and C and their associates,
discussion was held with the Kerr-McGee medical consultant concerning tne
Kerr -icGee am for responding to personne! exposure incidents. He had
indicated to company that the relative isolation of the plant and the
nature of the work there justified an in-vivo counting facility in the
vicinity to provide quick resolution of problems like this one. However, he
noted t 1t took many years even.to develoo the capedility to de Sicasssy
analyses at & nearby researrn center of "ne company. ate mecica: cere,
he incicated that the pnysician who operates a citnic in the plant's vicinity
served adequately as a source of primary medical care, supoorted ty the
consultant's availability to provide technical aid when needed. jece!
Syesetes was to have nm the AEC-sponsored short course in Medica!
ra of Radiation Accidents. The Kerr-McGee medica) consultant was
unable to explain the local physician was not involved in our discuss‘ons
with Individuals A, 8 and C or with each other. He indicated that his delay
tn seeing Individual A was due to her not having reported to work on
November ‘th as requested.
Biunedica Evaivations:
My further participation in the biomedical investigation and evaluation
of results included continuing discussions with the Kerr-McGee medica!
consultant; the leader of the Health Division at Los Alamos Scientific
Laboratory, and associated radiochemistry personne); and personne! of
Regulatory Operations staff.
Individual A:
In this individual, the evaluation of the magnitude of exposure
and of any resultant body burden involved examinations of five sets of data.
These arc: A., the information obtained by monitoring the home and work
environment of the individual (Appendices A and 8), &., the results of
urine and fecal excretion bioassays (Appendix [), C., the results of the
in-vivo internal radioactivity measurements (Appendices C and 0), 0., the
@easurements obtained from radiochemical analyses of tissues and organs
Obtained at autopsy (Attachment A to this report), and E., the isotopic
ratios of various samples (Appendix | and Attaciuent A).
A. Environments! Mcasurements:
Beginning with the first contamination episode involving
Individual A on the evening of November Sth, 1974, smears and air samples
from her work room did not indicate airborne activity. tier autenobile
Showed only slight contamination of sone switches at a maximum cf .07 dps.
A 54
In her apartment the air concentration on November 7th was 2.4 x 10°!2
microcuries per milliliter, just slightly above the level of 2 x 10°12
microcuries per milliliter which is permitted by AEC regulations for
average airdorne plutonium concentrations in occusted restricted areas
for 4G hours in any period of 7 consecutive days. No mora than 9.0003
grams of plutonium were identified in the contamination of the Indivicuels
or their apartnent.
8. Bioassay data:
1. @ ~ Individual A showed no urinary plutonium above
background on 12 5 —e performed between August, 1972 and “ay, 1974.
Following a possible smal! inhalation exposure on 3) July 1974, the
urinary Dioassays showed a gradual increese {n activity, reaching @ peek
of $.0 dpm/70Gn]. on the 28th of August and subsiding to baseline levels
in samples of September 12th and October 8th.
The next two samples, I-22 and I-23, collectec between
October 15th and October 3ist at home, showed levels 4 orders of magni nde
above baseline. Sample [-24, collected at work in the same time period and
left in Individual A's locker, was less than | dpm. Then [1-28 and [-27,
collected in the next week at home, were again 4 to § orders of magni tuce
~~ The remaining urine samples showed a return to fractional dom
valves in a@ steadily descending order.
2. Feces - The samples collected shortly after the exposure
incident of July 31s. showed no difference in plutontum activity from that
collectec in the previous year. The remaining samples were co! lected
beginning on November 6th in the course of the investigation of the recent
contamination incident. Beginning at plutonium levels about 7 orders of
magnitude above background, they showed a rapid fal! with time over the
following 7 days before Individual A's death.
C. IneVivo Count Data:
In-vive counting was carried out on Individual A on the 11th
and 12th of Movewber, 1974 at Los Alamos Scientific Laboratory. Their
results are presented in Appendix C of the investigation report. Americium
was Getected equally in both sides of the chest, while plutonium was below
the detection limit. Extrapolation from the americium level, using the
isotopic distribution of a nasal smear as being representative of the
Sananes entartet, resulted in estimation of 6 nCi of plutonium and .24 nci
of americium.
0. Post-Nortum Tissue Analyses:
Following the death of Individual A on 13 November 1974, an
autopsy was performed. Tissues were removed to Los Alamos Scientific
Laboratory for radiochemical analysis. The results of the tissue analyses,
aS susmaurized in the Los Alumos Scientific Laboratory report on Table 4.1
anc Table 4.2, and their Appendix A sumaarizing al] of tne tissue data
are appenicd as Altachsent A te this report. a A will Be noted that the
Anoy nd ix 4
A 55
fecal sample collected within the large intestine showed very similar
activities to those obtained from pre-mortum feca! samsies on “icverser
12th and 13th. It should also be noted that the lung carenchytan con-
tained at least § times as much activity as dic the tracheo-Oroncnia!
lympn nodes.
The estimated organ burdens for plutonium are 3.6 mci in
liver, § aC{ in lung, and less than 0.2 nCi in the bone. Since these are
the major areas of plutsnium deposition in the body, the Los Alamos
Scientific Laboratory report cencluced that the total plutentum >ecy
burden was uncer 10 Ci or less than 25 percent of the maximum cert ssitie
body burden for occupational exposure (40 mCi). The low value in the tore,
and the relatively low value in the tracheo-tronchial lymoh nodes compares
to that in the lungs, suggestec to Los Alamos Scientific Latoratory
1 that tha major portion of the plutonium expcture was of recent
origin, prooadly less than 30 days prior to death. The Los Alaros
Scientific Laboratory report pointed cut that Secause of the sma!’ samcie
size analyzed thus far and the resulting extrapolation uncertainties, tre
results mist be used cautiously.
E. Isotopte Ratios:
Isotopic ratios were calculated ‘rom the results of the
radicchemical analyses of envirenmentz! samples, excreta and post-cortun
tissue samples. Ratios examined were those cf slutonium-239 (plutonium-229,
240 in HSL ansiyses) to pluterium-238; and plutonium-239 to americium-26'.
The plutonium-239 to 238 ratio ranged from §.9 to 10.9 with
a mean of 7.9. There were no systematic deviations from the mean @‘tner
by type of sempie analyzed or by laboratory performirg the analysis.
In general, the plutonium to americium ratios showed a
greater range. Environmental samples, nasa! smear and fecal samples hac
an average ratio of 16 with a range from |! to 26. Samoles collected at
aa showed ratios of 16 for intestinal feces, 32 for liver and 19 for
ung.
Isotopic ratios could be determined in avo of the urire
samples, 1-25 and I-27, both of which had high activity levels. The ratios
were 5.7 and 6.0.
{ lusi
1. The environments! levels do not suggest a high likelihood of
the acquisition of a internal body burden of plutonium exceeding the
occupational permissible limit by orders of magnitude, as the initial
urine and fecal counts associated with this incident (1-26, I-27) suggested.
2. The results of in-vivo counting and tissue analysis are in
reasorab!y good agreement as to magnitude of interna! contamination, t.e.
Yess than 10 nCi or 25 percent of the cecupational “permissitic body burcon”.
Apes ou i ¥ y
oad
A 56
3. The plutonium-233 to 222 ratios of a1! samples are in genera!
agreement. The plutonium-americium ratios of nasal smears, feca! samples,
tissues and samples of home and work environment are also in reasonably
good agreement. The fecal and urinary radioactivity levels after 7 Novenper
and the autopsy find! are compatible with the ingastion and inhalation
of radioactive saterial a short time earlier than that cate. These data
suggest that the environmental contamination, the intake, the internal
deposition and the fecal excretion could a!) heve involved the same radio-
active material. The fact that the Pu-Am isotepic ratios in tre rt 20
urine cme in which the enalysis could be obtained are §.7 and 6.0,
could reflect a different contaminant and/or the body's greater fact!‘ ty
for renal excretion of americium compared with plutonium.
4. Analyses of urine samples 1-22, I-23, 1-25 and 1-27 gave
results which are not in accord with the above mentioned internally con-
Ht pe data. Oiscerdant findings related to the samiles include the
‘ol lowing:
a. The — levels of activity in urine samples [-22 and 23
preceded the detection of any personal contamination of Individual A wher
monitored at her work place.
b. The-one samnie,, 1-24, which wes apparently collected and
kept at the plant has an ectivity level 4 orders of magnitude below the
others mentioned. Such a variation in the excretion of plutonium and
americium from high level to low level to high level over a few cays is
biologically unlikely.
¢. It is biologically unlikely that the smal! decy Surden
of a comparatively insoluble olutontum compound measured by in-vivo counting
and in post-mortum tissue could have been so much larger 4 or 6 days earlier
as to result in the high level of rad‘cactivity seen in sarple [-27.
S. Based on the above findings, it is inferred that activity
found in urine samples [-22, I-23, I-25, and I-27 represents exogenous
contamination and that remaining bic ssay, environmental, in-vivo counting
and post-mortum tissue findings are the result of a recent intake of
Pu-Am material resulting in a plutonium body turden of less than 10 nCi
or 25 percent of the occupational exposure limit.
Individue) 8:
In this individual the evaluation of the magnitude of exscsure
and of any resultant body burden involved examination of four sets of Cats.
These are A., information obtained by monitoring the home environnent of
the individual (Appendix 6), G., the results of urine and fecal excretion
bioassays (Appendix J), C., the results of the in-vivo internal radio-
activity measurement (Appendices C and 0), and 0., the isetusic ratios of
various samples (Appendix L).
A $7
A. Envtronments) Nessurenents:
Contamination levels in the apartment which Incividual ©
shared with Individual A have been included in the 8.0. investigation
report. Individual 8's car showed no eviderce of contamination.
8. Bioassay Dasa:
1. ine ~ Individua! 6 showe¢ no plutonium activity in 2
samples tested in treen January and July. Slight plutonium activi ty
was detected beginning November 8th and peaking on November 9th. By
Noverber 11th and 12th the activity had fallen below detection limits,
where it remained through llovember 20th.
2. - The first fecal sample, collected at Los Alamos
Scientific Laberatory on November 11th. showed a level of radicactivity 3
orders of magnitude above background. Sudsequent fecal samples, deginning
with that of November |2th, showed very little or no activity.
C. IncVive Count data’
In-vivo counting was carried out on Individua! & on the 11%h
and 12th of November 1974 at Los Alamos Scientific Laboratory. The results
are presentad in Apoendix C of the investigation report. ‘oc internal con-
tamination was found.
0. Isotoote Ratios:
Two fecal samples, J-10 and J-23, revesled isotesic ratios
of plutonium to americium cf 18 and 15. These are well within the range
of those found in the environmental samples of the epartzent and in the
feca! samples of Individual A, which averaged a ratio of 16.
j lusi
1. Environments! levels do not suggest a high likelihcod of the
acquisition of a body burden of plutonium exceading the permissible
occupational limit by orders of magnitude.
2. The results of the urine and fecal bioassays, an¢ the isotopic
ratios suggest that Indivicual 8's contamination probably involved tie sane
radicactive material as found in Individual A and that the ingestion end
inhalation took place shortly before the first positive bioassay result.
3. In view of the aappetes in-vive counting result, and the
relatively low level quantity of radioactive contaminants in the urine
and feces, any internal deposition would have to be of a very low order
of magnitude or a few percent of the ponsissible occupational burden at
most. Since most of the yon | simply passed through the gastrointestinal
tract where absorption is minimal, the body burden, if any, is so smal!
that there is no significant health hazard from this exposure.
Anu ned tx N
a + —
cata. These are: A., the i:formation ottained by sonitcring he
meant of tha indivicual (App urix 3), B., the results of urine and
bicacsays (Appandix K), C., \im results of the in-vivo invernal activitiy
measre-2nts C .w¥l 0), and D., the isotopic ratice of varicus
saxples (App Ld.
3
Fy
B. Bioassay Dato:
2. Mee ;, N1- niin K sovenio ne plusuniun devesvable in
urine samples collected it:ssuictently frem Jine 1971 until September 20th,
1974, afver which the incivi.iail verminated his exployment with Kert~Mcdee.
Urine samples produced on kw wher lith through 13th showed no increase
over the past.
anc e@rericiua contaminati~:. Subsequent samples on the 12th and lth of
November showed virtually i+) .ctivity.
C. EpVive Count’ lun:
In-vivo count! ii, was carried out on Individual C =~ the Lith
and 12th of Novenber, 197" ..| Los Alamos Scientific Laboratory. The results
are precented in Appendix «'. the investipation report. No plutenium cr
@ericivm activity was doth. tid,
D. Leovenie Rut js:
A pliutoniim |. .mriciun ratio of 9 was reported for the one
fecal sample in wid stat: iit. could be obtained
Diccustione ie!) += usions:
1. Ths crwitiew atl levels in the of Individual A and B
were uufficiently low aini ite: ,manwt of time spent thare by Iniividual C wis
Companitively small go tle lik tihood of the acquisiticn of a significant
bo:ly lwaskan onceading Ue \simiundble Limit by orders of magnitwke is wry lew.
2. The abtonee ot .ttmetable activity in inevive counts and uvine
bias: cuygenes deat te ciynitdent internal contamination eceurred in
.
Apov im! ix N
A 59
Individual C. The very poor absorption to be expected Sy the passage of a
latively small amount of activity through the gastrointestinal tract
| — rgneen that no significant body curden accumulated in this
individual.
3. The comparatively low plutonium-americium ratio from the one
analyzable stoo! sample is of uncertain significance since it is based on
the analysis of a small sample with rather low levels of activity.
1 Cone lus i { { ical nt:
1. Although the medical consultant for the Kerr-McGee company /s
knowledgeable and experienced, having served as medica! director at the
site im the past, his present location in another state makes it difficul:
to provide useful early input into the handling of contaminated indfvicuels.
In the present instance the nitude and significance of the incicent did
mot become clear and recognizable to the Kerr-icGee medical consul tant
unti! well beyond the time when his early intervention could have facilitated
evaluation and disposition procedures for the three individuals concerned.
2. Capability of the local physician and climic could not be assessed
since the former was not a party to the interviews made in connection with
this investigation.
3. Gress bioassay information was available locally through the
Kerr-HeGee research center with reascnable promptress. Their capability
for carrying out accurate refined chemical isotopic analyses is ume cercain
and should be tested.
4. The lack of local availability of any means for-inévivo assesstont
of plutonium and amtricium internal contamination is a major drawback in
the a and psychological mana it of contaminated individuals ct
this facility. Reliance on the capability of the Los Alamos Scientific
Laboratory is a cumbersome means for obtaining such essential information
although the reliability of the results is good.
5. Results of the biomedical investigations were provided to Individuals
8 and C in satisfactory fashion orally and in writing by the leader cf the
Health Division, Los Alamos Scientific Laboratory, and orally by the Kerr-HicGee
medical consul tant.
A 60
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A 63
Oklahoma Worker’s Compensation Law*
85 Oklahoma Statutes § 11 [in pertinent part}
Every employer subject to the provisions of this Act
shall pay, or provide as required by this Act. compensation
according to the schedules of this article for the disability
or death of his employee resulting from an accidental
personal injury sustained by the employee arising out of
and in the course of his employment. without regard to
fault as a cause of such injury, and in the event of disability
only, except where the injury is occasioned by the willful
intention of the injured employee to bring about injury to
himself or of another. or where the injury results directly
from the willful failure of the injured employee to use a
guard or protection against accident furnished for his use
pursuant to any statute or by order of the State Labor
Commissioner, or results directly from the intoxication of
the injured empicyee while on duty ...
85 Oklahoma Statutes § 12
The liability prescribed in the last preceding section
shall be exclusive and in piace of all other liability of the
employer and any of his employees. at common law or
otherwise, for such injury. loss of services or death. to the
employee, spouse, personal representative. parents. de-
pendents, or any other person. except that if an employer
has failed to secure the payment of compensation for his
injured employee. as provided in this Act. then an injured
employee. or his legal representatives if death results from
the injury, may maintain an action in the courts for
damages on account of such injury. and in such an action
the defendant may not plead or prove as a defense that the
injury was caused by the negligence of a fellow servant. or
that the employee assumed the risk of his employment. or
that the injury was due to the contributory negligence of
the employee: provided, that this Section shall not be
construed to relieve the employer from any other penalty
provided for in this Act for failure to secure the payment of
compensation provided for in this Act.
* Prior to 1978. known as the “Workmen's Compensation
Law.” The above-quoted sections were in effect at the ime of
Silkwood's alleged injury.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.