ML20245C320

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Advises of Decision Re Whether Agencys Interpretation of Certain Products Distributed by Client Were within General License Set Forth in 10CFR40.22
ML20245C320
Person / Time
Issue date: 04/20/1989
From: Bernero R
NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To: Joseph L
JAECKLE, FLEISCHMAN & MUGEL
Shared Package
ML20245C323 List:
References
FOIA-89-182 NUDOCS 8904270113
Download: ML20245C320 (2)


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UNITED STATES 8

NUCLEAR REGULATOMY COMMISSION o

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April 20, 1989 1

Linda H. Joseph Esq.

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Jaeckle, Fleischmann & Mugel

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Twelve Fountain Plaza Buffalo, New York 14202-2222

Dear Ms. Joseph:

By letter dated April 19, 1989, you asked me to stay an NRC 1

final order relating to the agency's interpretation of I

whether certain products distributed by y(our clients Heary

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Brothers Lightning Protection Co., Inc. "Heary") and Lightning Preventor of America Inc. ("LPA") were within the i

general license set forth in 10 C.F.R. I 40.22.

Furthermore, l

you requested that I issue such a stay within forty-eight 1

hours.

j Because the NRC has not issued any order or taken any

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specific action against Heary or LPA.' there is nothing to be

" stayed" by the agency. The April 12, 1989 order referenced in your letter that directs Heary and LPA to cease j

distribution of lightning protection terminals containing thorium-232 and to prepare a recall plan for terminals already distributed was issued by the State of New York. Any stay of its effectiveness, therefore, can only be granted by the State.

As a result, what I believe you are really requesting from the NRC is for reconsideration of its interpretation of how its regulations, which are the model for the New York State regulations that are relevant to the April 12 order, would apply to your clients.

For the reasons stated herein, I have decided to reconsider this interpretation. We are advising the State of New York of this decision'and we will coordinate further consideration of this matter with the State.

In your submission of April 19, 1989, you assert that the distribution of "Preventor" lightning protection terminals containing thorium-232 by Heary and LPA is appropriate pursuant to the general license granted under 10 C.F.R.

I 40.22 or the equivalent New York State regulation.

In doing so, you challenge the conclusions concerning the application of section 40.22 to the distribution of thorium ibhtning rods by Heary and LPA stated in an April 6,1989 1

letter from John R. McGrath, Regional State Agreements I

Officer NRC Region I, to F.J. Bradley of the New York State 1

Department of Labor; a March 20, 1989 memorandum from Yandy 3

[l( 3 Miller, Assistant Director for State Agreements Program, NRC Office of Governmental and Public Affairs, to Mr. McGrath; 9/W79//3 gsD x4

Linda H. Joseph, Esq. April 20, 1989 and a March 1, 1989 memorandum from John Austin, Acting Chief, Medical, Academic, and Consercial Use Branch, Office of Nuclear Material Safety and Safeguards, to Bruce S.

Mallett, Chief, Nuclear Materials Safety Branch, NRC Region III.

In support of your arguments, you present a number of factual assertions concerning the technical specifications, distribution, and use of the thorium lightning rods at issue.

Because you have not provided any documentation or affidavits in support of these factual assertions, we are unable to reach a definitive conclusion regarding your arguments at;out the appropriate classification of this product under section 40.22 within the forty-eight hour " deadline" you have proposed.

In addition, we have a number of questions about the information you have provided. Under the circumstances, we have determined that the best course is to institute a formal reconsideration of our prior determination, as reflected in the April 6 letter and the March 20 and March 1 memoranda referenced su ra. Accordingly, this office will be contacting Heary and n the near future with a number of questions concerning these lightning rods and their distribution. Additionally, we will keep New York State advised of our inquiries and your client's responses.

During the reconsideration period, we will not institute any enforcement action based upon violations of 10 C.F.R.

Il 40.3, 40.13, 40.22, 40.51 against Heary, LPA, or any of their customers for distribution or possession of the thorium lightning rods at issue. We also will forward a copy of this letter to New York State officials for their consideration regarding the appropriate course of action relative to their April 12, 1989 order regarding distribution and recall of these lightning rods.

If you have any questions concerning the agency's actions outlined in this letter, please contact Robert Fonner of the Office of the General Counsel at (301) 492-1643.

Sincerely, W

Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards cc:

N.Y. State Dept. of Labor RSA0's RSLO's

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