# Motion to Dismiss or Affirm — Silkwood v. Kerr-McGee Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0054%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1984 - **Citation:** 464 U.S. 238 ## Text 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 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 . , ‘ ~ * * 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’ ws _ ok gets . be —eee ‘e Bi- ao — . _—— eee *> a ** Cas -_ - * * “ss: «© e e . . a : . , Appendix F 1 of 6 ° . Fo _* «2 we bl a . : enowrunh . — *: "ss BYSSEUBESSeSENEBe Ete tEEs i a, 42° 2 7) ¢.. “ ee . Ad 7 os . ms 2 * ob Volt" * “Top * Less than 0.05 dpe : Seuth Sedroom : Feoat Perch . Back Porch ‘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 . ° a. . . ‘ : au 5 @ 2 of 6 2 + “2 Xs it . ¢: ° *° ° -F aah ‘ a ° 4 ° ; . see he -— were rs “- .. . fi f . . mo 8 ena . a : : . » a . s . ° e _«@ . : - F ° *. . - Lod fee wot fi Bos a Sp Be Oe ord eS - - _ ea 3 2 - ors - “ . yt. ae - °.¢ . J ‘ y - *.- = *. bg ad a _" ° . te : . a = oe ‘ ° 7 ** “e+e ss ct . % . ~" ns : se y ges “9? : com *. o 8.4 o& - fou *. ce! fg © . ene % - b+ ~ > J . ° - ry La ‘fl ** . %, . a - 2 aed ,- ra ’ * *. o’ 4 Pe ** £- . " 7s. °. bd es ™ ? “ . - 3 *-. - & *» > wen - oe a . > e ain . *- «* —- - 4 . . Bs % id ° Ss — . t g3 G6 ae”. ete hy ¢ > ey 2» » “s ad ¢ ee . 6 ° o > s P 4 o* aS ®» *?# 2 7+ & * Se . .* @ 7 3 7 a 7+ E ; "* “ ° . fa y a , ¢ ~ "te : am we - — S . % 4 _¥ : ” ‘tes. ‘~ .. : "re gfs OS 2 SS 3 an. ae °F ot Gertie. * 9° . so ee adbe . °: . 4 , e “e . 7 . e 7 a o°* . . . ms G- 7 . so ee a es > °- “ * s 2 . ” “of ? : — ss 2 4 ‘ » : . “ee & ° Pes eo SB ubitemncy van, a) ty FE ** . . % ate "8 sa ° 8H, G ee eo Ma? he ey AP Ty. = = : >. . : PFS © oo 2 . é 7° ‘ at - 2 ¥ oar « 2 2 6% ° ae | e * & me «8 2 7 ats eo te ow te 0 @ oo By "t+ “ee ° Ome, 90. Se @%s, %% . - “ty . a hd — * =% oS : ad . = 2 ”” bd a wo oa oa Mi "o 7? 69 “~ fate - "is - °° -*, Se- . ° 2 oa ° ® @ ,% saz — o* «7 *. » so°-e8 — o a” rnd “* w « - Of > *s . Ce elt te a 7 a ~~ a eo <> © F de 06 tant @ 2 are” > *.* ° ¢ e . a “: . &- % 5’ ee On, ae De Wits: ep SS ee es a Se. Us és eC eee ae ee Ae a a OB 2 wets ® i. .° nin’ L. “ne ; Ai 3°83 ‘ Yes ’ Y ™ ese hy > * tg es = NR +e te Rn Wee :"° PR a og teas ee RE EE eS AS eay te ee ee tee! @ tense te 5 e® . §, Pe. oe a Ys os’ 5 in ak ee ee 44 Le + .° 3% ~ 40°: w S*e e ¢-.-39 °* sé "ves 3° | . ’ eee * pore tee . es 2 ek é > il * * we. ton © ff 7 “«* ** Be Be gE eee Fatt R A ape eek ey PE es 8 te ™ es *. “ss . , hs ° oon, oe. €.°ae aa on” ~e *. . “eo ewer ® *e "“s 6 a. *, 0 ~ “ . oe Sas > , “ge . 3... . 2 t *e% ** se e* es °. oe © %*u6 © ° 3 Wen ee Be ie : ve Bettas. * mr Ya “2072 oe *s ica, -? + *.. eet” ~— 9 . 4 “sdee ~~ “s Thee. a . s*, te i ° hd phy - “% = ° *” ee eo, ® Nel hina: eek ) ete Ly? Sg te Rats : raat ms Satta ; ores oo tte ST tit Sh 3 Cad ol ao . 4 . cr . . a= - a 8 ‘ . ° e . : ® x > *, . “8. ..*" é- ~.3 ‘ ”* “ ae = ae ie 2 = "eo .. *.°. “ot, % “Ts Slat Se + 0". tees * eu T° © Wes ad > seat , a RS: Oe RE UR ene TC aT San Bote tee LE an . . * - ) ee - ae A enee ok . oe % - : i A e ° eo *S p le . "eg e Ze ely thie Bowe B esi e Say ea RT ee Be oe f'n: res | ae ee: * Segeee -# 2H 2. ous ON ee ot .e enc’ &°* ° . ° - En Pe aha an Fee eee tps" , we ey § se “fy cry sat" 6 ; ‘ye e — tA. Se +? . « ;, Om ‘ “4 ®, see ree a*- am 2% . . . . . 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 - ont cnn, s . .7e et . . a e be ‘A 33 ° . * 3, im, Cae?) ase ° 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 ~ ‘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 : . Mote ey ang Sed, sy Meet on Bea et SR eo Per Me a Sn el wee Ce ak ac Be : e: ‘207 * e+ 4 F Atle Set ¥ “y ae, at Bt Mp tle. oo fn, TE eh) ee "eg Tt opie BSE — oe, ot", . . “ea j . seme see", ss , 1 rer’ 00 ae , "ees * ym “3 + oe 3 Arita aes ‘ sty?" ‘oer a eee m4 - "a + * DR, Pt en ee PE To Se ee oo 4 %! eB POD Te eee Sims | Soe eon Oe Phe ae S ‘ ™ , onde “VRE ox Se tre. as Ore de 9 vite T. “s e* 2 . a « oe *sqe"? ps ad “* Ix 0 e e e. > a be - . ~o P . a ° . ‘ ee rt . te, Pe Non ” ° = Hoe a “: Sey é Pee, at d “¢ Vere, 4 : .' . CT A RE PT or Se Se eR ‘ Sa oe ree OAS SAN ‘4 4 fgg OLE at 2 et . ge. ia oP i *f ‘gles - 4 "7 ‘. ° . . © dev f° oe . 7 - aad °. . e* on - . : . a é.. ot Ve . ue ° , ; 2 . af : “ = ° % ° + Boge 8 tee’, x +e ati %° * Sw ° ®. e 7 ° **. : a” ° we s * *. ‘ . ; ° 2°” ° ° — “© .* . «% —“- a “i “4 + =" _ ”, qe” As . -e*f-% ns ‘> %- +6 nm - ® ° ° . e* - . ‘% * "2. ° ° om * * ‘state -_°* . 2 ne . . ah _ a » -» ¢ aX ‘ ‘ Ne ?. . ° . od . °¢ > , * »6 es . ’ ° @ ““y" ‘s . ied . . . .-. . pendix F 5 oh 6 £ * « , . = é al Ps bd °7 . _ *o ~~ 3 c Thay ba ey ae a +. . \! * “——_ © t . ~. . ae WE AF toes Oke Parnrensy Wise ee ee “ 4 Pie oo *. Oil : as * Fs i ' . © tee . . > os 7 . Was a Sr 4 : 2 es se 2. . oP . ; .° ‘ | eS DG aires savisssars uses? oO legis? ‘a . ln, . * . - ‘ r . . . “; ° 4 *. paul * * by “ .,* ae . . -. . e * oo amc, le i secur? rserore™ $5. a Ta 4 erovsur ‘ . m= e x oe . a '*.* . . a : cf : \ if “ ; q : A ‘ §:- a Bs d f : - | q : 4 . * : * ¢ . . P _—, > i ‘a's hd ‘ . "+ % ’ 7 o%e * &, “ 5 > o* ** vi -* . *. . 4 *,;* ) ee eke ee te" s “2: SRR a. se ; j .* : i cf | i | ; i : rT a i! ‘+, -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 Hire are’ ne be bas Spent Se ee a F e : PEs ea APPESDIX 2 Rs bas » ° _ uh: pe _ - . ™ . eee : canes sm veces sauneans ~ SROWIONEL. & ; . tenet enaizend : 4 me i mi te cet oe a : la s 8 um -_ 0.4 he Be (tvet Qenccey — » * unm -_ (Ot de > * wun - . e won a on , # were - se wm - = > vse - - 8 esvas79 » * onasyy ~ oe vesves?e -_ « wie Ze. ty : " et abe? Be BOS, Os 5 ne = oe as? ff. we” Free Reg as we ~ re . ans arene t Oc 1 . : Lt) feehreed ; wl. of aw ieet ii Ge oe ai ee. Bie cet 6. ee eee lCUee OR fnerte ‘ “nes =a OO - -« ee ne oe fe ~ ar (0.4 sefn t & =e wee - « or (61 cee at & ne =e - or CON ehateee ot te oe 20 Met teen —. = & “ = —eee ere = — A - - ; : o 2" : 4” = * ‘ * Fi ~~ a Pate Setded bit tt _4. ee i une =p i: cmmume 8 tome 5 | a \ wed : % Darr i ae f ey ee = a Ae oo . of oe ii aeaaea 288 aaa sssess ag FEET WW7 Tt sas BRG2ES RRL 2 a a ~ werentre AFOCIBTE 1 (Page 9) 5 Pane onal meet wl or te- Cebded Vetting Con-. toh; or me iets steel 6. fee isle a &@ Geen Poaerhe ae ee a) ~ tos “BS aesy a ’ Pe ee ee eee ee ee a ee A ee eg Pe o> “a we % » > : * : ‘ aun Asm veces. smevens - SEDEVIEEA © 4 : Pate tnalract & Wl. o o- Voided Welding Con- Vel. of & Ges Seléed oittel _M. Ber, selon fee. Br Somes dretion Severte © peeee 1/2 — mS i 1000 ch «(ST «= (8.1 S/n/1088 wh Pe Firet Bicoscey © Mee 6/9 Bene * a- 1600 ot «WET | 8.1 6/n/1088 al fe o Met se — & on Most EH 1.0 dee at Pe: 7% © et i — i ae ee ee a ee ak = EASE (0.03 dfus/70 wl Pe” 3 © M608 217009 2/0k ee | =U 70 at _ 0.04 d/al7® ot Pe-899 | 2 ee ee en ne Oat = LAL 0.05 A/a/70 ot e-29 | ee Pat = CARL (0.03 fal 70 at P-29 Ty ° Me us whe we » um ne 0.04 dai? ot be-239 Ne ee ee ee a a ne wus | “ r 9.0% “at eee es a0 et ma» — & at oe SO cag EN eR ae | ree ee ae ee ie yee ‘oe SO he Eo an % Kop ane 4 a / : me 2 & e ea 5 eo: es oe Fecal tS a | Lash sé 17 Pecal 1-44 r us 0Oé8.3 “ Fecal 1-45 4 “se Oié*?«w? 26 Fecal ; I-46 a lust 2 Fecal 10 . ot a ot us Tecsl 3-23 > ms *89 1s Fecal K-18 c Last tié«S? ’ eat - m | Oh us Kitchen Sink Trap - ust 9.0 12 Bachroos Sink Trap - ESL 8.2 us ' Tetlet Bovl - aL 7.8 23 usL 8.3 uu f us 8. 6 ee . 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 THIS PAGE INTENTIONALLY LEFT BLANK 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0054%3A03. Public record. Not legal advice.