ML20245F709
| ML20245F709 | |
| Person / Time | |
|---|---|
| Issue date: | 08/09/1989 |
| From: | Hodgdon A, Romney N NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20245F660 | List: |
| References | |
| REF-QA-99990004-890809 89-582-01-SC, 89-582-1-SC, EA-87-223, NUDOCS 8908150043 | |
| Download: ML20245F709 (46) | |
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UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 9999004 (General License Authority WRANGLER LABORATORIES,.LARSEN of 10 C.F.R. 40.22)
LABORATORIES, ORION CHEMICAL COMPANY AND JOHk P. LARSEN E.A.87-223
)
ASLBP No. 83-582-01-SC NRC STAFF'S PROPOSED FINDINGS UF FACT AND CONCLUSIONS OF LAW IN THE FORM OF AN INITIAL DECISION I.
INTRODUCTION This proceeding was initiated as a result of the issuance of an Order by the Staff of the Nuclear Regulatory Commission (Staff), which revoked
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the General Licenses.of John P. Larsen, Wrangler Laboratories, Larsen Laboratories, and Orion Chemical Company. See " Wrangler Laboratories, Larsen Laboratories Orion Chemical Company, and John P. Larsen, Provo, Utah; Order Revoking Licenses," (August 15, 1988), 53 Fed. R n 32125 (August 23, 1988) (hereinafter Order Revoking Licenses). A hearing was held in this' proceeding on June 13 1989.
Pursuant to the Order of the Atomic Safety and Licensing Board (Board) designated to preside over the above captioned proceeding, the Staff hereby submits its proposed findings of fact and conclusions of law with regard to the issues raised in this proceeding.
II. BACKGROUND Mr. John P. Larsen has been doing business as (dba) Wrangler Laboratories, Larsen Laboratories, and Orion Chemical Company; and is the l
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owner.and sole proprietor of these firms. Mr. Larsen's companies have all 1
L been involved in the chemical processing of depleted uranium (DU).
In his chemical process Mr. Larsen received slugs of DU, dissolved the material in boiling nitric acid, precipitated the uranyl acetyl acetate (UAA) using 2,4 pentanedione, dissolved the UAA precipitate in benzene to produce recrystallized UAA, and subsequently dried, ground, packaged, and shipped the pure UAA product. This activity was conducted under the general license authority' of the U.S. Nuclear Regulatory Commission (Commission or NRC) pursuant to 10 C.F.R. 9 40.22. A general license granted by 10 C.F.R. 5 40.22 authorizes the use and transfer of not more than 15 pounds of source material at one time and the receipt of not more than 150 pounds of source material in any one calendar year.
l As a result of an August 1982 inspection of Orion Chemical Company, Provo, Utah, the NRC determined that Mr. Larsen's chemical processing activity should be conducted under a specific license due to the potential for contamination of workers and the environment. A specific license was issued by the NRC in December 1983 to Larsen Laboratories of Provo, Utah.
The responsibility for overseeing this specific licerse was transferred to the State of Utah upon its becoming an Agreement State in 1985.
On October 28, 1987, the State of Wyoming informed the NRC of an allegation that it had received concerning improper activities at Wrangler Laboratories in Evanston, Wyoming. On November 4-5, 1987, NRC inspected Wrangler Laboratories and found Mr. Larsen, dba Wrangler Laboratories, conducting chemical operations on DU under a general license. The findings from this inspection included the apparent use of inadequate controls that
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E resulted in contamination exceecing NRC guidelines, evidence of internal I
contamination of workers and exceeding the use and possession limits.
Based on questions surrounding Mr. Larsen's activities and the results of the November 4-5, 1987, inspection, the Deputy Executive Director for Regional Operations issued an Order Suspending Licenses (Effective immediately). See "Wrngler Laboratories, Larsen Laboratories, Orion Chemical Co., and John P. Larsen; Order Suspending Licenses (EffectiveImmediately),"(February 25,1988),53 Fed. Reg. 7452 (March 8, 1988) (hereinafter Order Suspending), Staff Exhibit I at Exhibit 17. The Order provided Mr. Larsen an opportunity to show cause why the Order should not have been issued and to request a hearing. Jd.at7453.
Following further investigation, the Deputy Director for Regional Operations issued an Order Revoking Licenses on August 15, 1988, and provided Mi. Larsen with an opportunity to request a hearing on the Order.
53 Fed. Reg. 32127, August 23, 1988.
l A Licensing Board was established to decide the issue of whether the I
Staff's Orders should be sustained.
See Establishr
- " Atomic Safety
)
and Licensing Board, October 24, 1988. The Board h v s prehearing conference on February 22, 1989, to determine matters at issue in the proceeding. The Staff and Mr. Larsen attended the prehearing conference.
l The parties engaged in one round of discovery. Discovery closed on May 22, 1989. Written testimony was filed by the Staff on April 25, 1989.
In addition to the witnesses for whom testimony was prefiled, the Stuff presented the rebuttal testimony from one witness at the hearing. Mr. Larsen filed written testimony on May 30, 1989. The hearing was held on June 13-15, 1989 The Board established a schedule for the filing of findings.
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.Bechhoefer, Tr. 723, 724. The Board's findings of fact and conclusions of law are set forth below.
III. THE ORDER The Staff's Order of August 15, 1988 revoked the general license
. authority of Wrangler Laboratories, Larsen Laboratories, Urion Chemical t
Company and Mr. John P. Larsen pursuant to 10 C.F.R. 6 40.22. 53 Fed.
h 32125, August 23, 1989.
' As the basis for the issuance of this Order the Staff stated in the Order and reiterated in its testimony that:
Aside from Mr. Larsen's enforcement history and previous noncompliance under his specific licenses in Utah, the activities conducted in Wyoming.under an NRC general license have raised serious concerns within the NRC. The activities have taken place in a facility which was inadequate, with no assurance that similiar activities in the future would be conducted in a more suitable. facility. The activities,.which have involved the chemical processing of significant amounts of source material, are of such a nature that the radiation safety, chemical safety, and waste disposal aspects of the operation should not be conducted under a general license.
Moreover, activities of this nature were not anticipated by the AEC at the time of 10 C.F.R. 5 40.22 rulemaking. The exemption in 10.C.F.R. 5 40.22(b) from the requirements of Parts 19 and 20 clearly indicates that activities under the general license were seen as not involving an occupational hazard.
Finally, the specific conduct of Mr. Larsen's Wyoming operation with respect to compliance with source material possession limits and Confirmation of Action Letters has established a record of performance unacceptable to the NRC.
53 Fed. R m 32125 at 32127; see Direct Testimony of Edwin F. Flack, ff.
Tr. 91, at 8-10.
l It is the Staff's position that, pursuant to 65 62, 63, 161b, 161c, 1611, 1610, 182 and 186 of ^,he Atomic Energy Act of 1954, as amendeds 42 U.S.C. 96 2201, et. seo.
Larsen's chemical processing activity using NRC licensed material shouM not be conducted under a general license and
that, for public health and safety considerations, his general license authority should be revoked.
The issue to be decided is whether the Staff's Oroer should be sustained. Our decision must rest on whether the record supports the judgments made by the Staff in the Order Revoking Licenses. The Staff, as the proponent of the revocation Order has the burden of proof.
10 C.F.R. G 2.732. As set forth in the findings of fact and conclusions of law which.fo17ow..this Board concludes that the Staff has met its burden and that the Order should be sustained.
IV.
FINDINGS OF FACT
'1.
Mr. John P. Larsen, doing business as Wrangler Laboratories in Evanston, Wyoming, was using source material under a general license authorized by 10 C.F.R. 9 40.22 until that license was suspended by a Staff Order issued February 25, 1988.
Staff Exhibit 1 1/atExhibit17; 53 Fed. Reg. 7452.
2.
Mr. Larsen's general license was revoked by an Order issued by the Staff on August 15, 1988.
A.
The Witnesses 3.
The Staff in support of its Order presented the testimony of five witnesses.
4.
Mr. Edwin D. Flack is a Senior Health Physicist in the NRC Office of Nuclear Material Safety and Safeguards and served as a Senior 1/
The Staff's Exhibit I consists of the Office of Investigation Report on Wrangler Laboratories: Material False Statement / Intentional Violt. tion of Licensing Requirements. The report includes several exhibits numbered I through 36.
t.
Enforcement Specialist in the Office of Enforcement from 1982 to 1989.
Testimony of Edwin D. Flack, ff. Tr. 91, at 11 (hereinafter Flack Testimony). As a Senior Enforcement Specialist, Mr. Flack's duties included the review and processing of escalated enforcement actions to
. assure conformance with established policy and criteria. M. Mr. Flack has an M.S. in Health Physics from Colorado State University and over 20 years experience as a Health Physicist.
ld. Mr. Flack presented d
a testimony describing the NRC's enforcement policy and his role in the application of that policy to the 'act' ions involving Mr. Larsen. Id.at 5-10.
In addition Mr. Flack presented testimony responding to specific questions regarding NRC's enforcement policies as applied to Mr. Larsen, which were identified by the Board in its Prehearing Conference Order of i
March 1, 1989. Testimony of Edwin D. Flack Responding to Questions Raised by the Licensing Board on Revocation as a Remedy, ff. Tr. 92, at 1-6.
5.
Dr. Darrell R. Fisher is a Senior Research Scientist in the Health Physics Department of.Battelle Pacific Northwest Laboratories in.
Richland, Washington. NRC Testimony of Darrell R. Fisher, ff. Tr. 98, at 26 (hereinafter Fisher Testimony). Dr. Fisher is also a consultant to the University of Washington Hospital, Division of Nuclear Medicine in Seattle, Washington and to the Fred Hutchinson Cancer Research Center, also in Seattle, Washington.
I_d.
Dr. Fisher has a Ph.D. in Nuclear Engineering Sciences (health physics) from the University of Florida. M.
Dr. Fisher presented testimony describing: (1)howuraniumismetabolized in the body including the major organs and its pathways of excretion; (2) the appropriate methods for determining the amount of uranium in the 1
body, by direct measurement or indirect bioassay; (3) the identification i
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of unsafe levels of uranium in urine; (4) the standard practices followed j
i after detection of unsafe levels of uranium in urine samples; and j
(5) standard occupational safety practices for personnel who work with uranium.
Fisher Testimony at 2-25.
6.
Dr. D. Blair Spitzberg is a Senior Radiation Specialist in the Division of Radiation Safety and Safeguards, Nuclear Materials Inspection Section of NRC Region IV. NRC Staff Testimony of D. Blair Spitzberg, ff. Tr. 101, at 24 (hereinafter Spitzberg Testimony). As a Senior Radiation Specialist, Dr. Spitzberg has performed routine and reactive inspections of fuel facilities, source material operations, and medical, academic and industrial users of byproduct material. M. Dr. Spitzberg has a Ph.D. in Environmental Sciences (Environmental Radiation) froin the University of Texas at Dallas. M. Dr. Spitzberg presented testimony describing his inspection of Mr. Larsen's Evanston, Wyoming, facility and the circumstances, including the issuance of several Confirmation of Action Letters (CAL's) U o the Licensee, which led up to the agency t
decision to revoke the Licensee's general license. Spitzberg Testimony at 2-23.
7.
Mr. Brooks Griffin is a Senior Investigator with the NRC's Office of Investigation Field Office at the NRC Region IV in Arlington, Texas. Professional Qualifications of H. Brooks Griffin, Office of Investigations United States Nuclear Regulatory Commission, ff. Tr. 106.
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Confirmation of Action Letters are used by the NRC in lieu of an Order if a safety related problem requires an immediate corrective action of a short term nature. Spitzberg Testimony at 2.
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Mr. Griffin is. responsible for conducting investigations of alleged violations of NRC regulations. M. Mr. Griffin has 18 years of experience as an investigator with federal-agencies including the Bureau of Alcohol Tobacco and Firearms, U.S. Treasury Department, and the NRC.
id. Mr. Griffin.is the author of the'0ffice of Investigations Report on d
Mr.- Larsen's activities. Staff Exhibit 1.
8.
Mr. Craig Jones is a Health Physicist with the Utah Bureau of Radiation Control. Division of Environmental Health. Curriculum Vitae
-Craig Jones,-ff. Tr. 660. Mr. Jones' duties include providing technical support for the control of radioactive materials in Utah's agreement state-program. M. Mr. Jones also participates in the review and issuance of Utah Specific Licenses for the possession and use of radioactive material and also participates in enforcement activities involving Utah regulations. Jd. Mr. Jones provided rebuttal testimony regarding Mr.
Larsen's activities in Utah and his noncompliance with Utah regulations.
E 9.
The Board finds that all of the witnesses presented by the Staff were highly qualified in their respective fields of expertise and presented credible testimony in this proceeding.
- 10. Mr. John P. Larsen is the licensee in this proceeding and the 1
sole proprietor of Larsen Laboratories and Orion Chemical Co. See og Qualifications of John Paul Larsen, ff. Tr. 344. Mr. Larsen has a B. A. in Chemistry from Brigham Young University. Jd.Mr.Larsenwasemployedasa chemist with Abbot Laboratories in Pasadena, California from 1971-1973.
i id. Mr. Larsen presented testimony describing his licensed activities in Utah and Wyoming, his attempts at compliance with NRC and State of Utah j'i
regulatory requirements and, his-allegation of a lack of ob'jectivity on the part of the Staff.
See Letter of May 22, 1989, ff. Tr. 342; Letter of March 18, 1988 with attachments, "f. Tr. 348; and Letter of December 26, 1988 with attachment, ff. Tr. 350.
- 11. Mr. Larsen presented the testimony of three witnesses in support of his contention that the Order should not be sustained.
- 12. Mr. Kevin J. Noack is a former employee of Mr. Larsen. Mr.
Noack'was employed on a-part-time basis as a laboratory assistant in Mr.
Larson's Utah and Wyoming fac'ilities. 'Mr. Noack presented written testimony describing Mr. Larsen's facilities. See Direct Testimony of Kevin Noack,'ff. Tr. 559 (hereinafter Noack Testimony).
- 13. Mrs. Sally Larsen is the wife of Mr. John P. Larsen. Mrs.
Larsen testified regarding her intersiews by Mr. Griffin and Dr. Spitzberg l
for the NRC Office of Investigations Report.
S. Larsen, Tr. 636-649.
B.
The Licensee's Past History of Violations
- 14. Mr. Flack's prepared testimony addressed the licensee's past history of violations. Flack Testimony, ff. Tr. 91. Mr. Flack and Mr. Jones testified regarding the licensee's past history of violations (during the hearing on June 13-15,1989). Flack, Tr. 276-284; Jones Tr.
660-703; Staff Exhibit I at Exhibit 1-18. On August 23, 1982, an inspec-tion was conducted at Orion Chemical Company. Durin3 the inspection, NRC determined that the licensee was in violation of several regulatory requirements. These violations included possession of source material, at one time, in excess of the 15 pound limitation on such material; refusal to make records available to NRC; unauthorized disposal of depleted 1L uranium (DU); and failure to maintain complete records. Staff Exhibit 1 l.
?....
at Exhibit 1, pp. 2-3.
On September 3. 1982 NRC issued an Order to Show Cause and Order Temporarily Suspending License (Effective Immediately).
Staff Exhibit 1 at Exhibit 1.
On October 25, 1982, NRC issued an Order Rescinding Order to Show Cause and an Order Temporarily Suspending License.
Staff Exhibit I at Exhibit 2.
This action was taken after the
-licensee's corrective measures to bring the operations into compliance.
M. On. December 15, 1982 NRCissuedaNoticeofViolation(NOV)and Proposed Imposition of Civil Penalty for the aforementioned violations.in the amount of $500. Staff Exhibit I at Exhibit 3.
On March 11, 1983, the Licensee responded to the NOV and paid the civil penalty. Staff Exhibit I at Exhibit 4.
The Licensee in its response admitted the violations and stated "We intend to not violate any regulations in the future."
I_d. at 3.
- 15. As a result of the August 1982 inspection, NRC determined that Mr. Larsen's chemical processing activity should be conducted under a specific license due to the potential for contamination of workers and the environment. Testimony of Edwin D. Fiack, ff. Tr. 91 at 9 and Flack, Tr.
311...A specific license (SUB-1436) was issued by NRC in December 1983 to Larsen Laboratories of Provo, Utah. Staff Exhibit 1 at Exhibit 17; Order Revoking Licenses, 53 Fed. Reg. 32125, at 32126. The responsibility for overseeing this specific license was transferred to the State of Utah upon its becoming an Agreement State. M. On May 13, 1985 Utah reissued to Larsen Laboratories specific Radioactive Material License UT2500183, which authorizes possession of up to 150 kilograms of DU at one time. M.
- 16. On April 15, 1985, NRC received an allegation of improper u
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activities being conducted by Larsen Laboratories. H.
The allegation l
was referred to the State of Utah, which performed inspections and found 1
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nunerous violations and five contaminated facilities in which Mr. Larsen had conducted activities.
Staff Exhibit 1 at Exhibit'6. Mr. Jones testified that the State of Utah was 'not notified regarding the use of licensed material at these facilities, as required by the Utah license.
Jones, Tr. 699-701. At one of these facilities, contaminated liquids were leaking from drums that had been stored on a truck for approximately two years. Staff Exhibit 1 at Exhibit 6 " Report of Investigation," p.3.
On November 5, 1986, the State of Utah issued an Order Suspendin; i.icense (Effective Immediately) and Order Imposing Civil Monetary Penalties in the amount of $13,000. Staff Ethibit I at Exhibit 10. The Order, which is still in effect, required, among other specified actions, that the licensee:
(1) not receive or use source material except to secure or transfer such source material in its possession; (2) dispose of radio-active wastes; (3) decontaminate two facilities in the Orem area; (4) move to production facilities that have been approved through license amendment procedures; and (5) obtain a qualified Radiation Protection Officer.
Id.
at 3.
On January 15, 1987, a Settlement Agreement between the State of Utah and Larsen Laboratories was signed.
Staff Exhibit 1 at Exhibit 11.
j The agreement required that the specified activities in the Order be I
completed by April 15, 1987, and that $8,000 of the Civil Penalties would be suspended. Ld. The licensee paid the remaining $5,000 Civil Penalties, but has not complied with items (4) and (5) of the Order. Ld.
- 17. On October 28, 1987, the State of Wyoming informed NRC of an allegation that it had received about improper activities at Wrangler Laboratories in Evanston, Wyoming. Staff Exhibit I at Exhibit 12. On November 4-5, 1987, NRC inspected Wrangler Laboratories and found that Mr.
l l
f Larsen, doing business as Wrangler Laboratories, was conducting chemical operations in a temporary facility and appeared to have exceeded uranium possession limits. Staff Exhibit I at Exhibit 13. As a result of NRC concerns, an enforcement conference was held with Mr. Larsen on December 2,1987, in Salt Lake City. Staff Exhibit 1 at 9.
Subsequent to the November 4-5, 1987, inspection of the Evanston, Wyoming facility, NRC Region IV also obtained agreements with Mr. Larsen for certain corrective measures intended to:
(1) terminate licensed activities at the Evanston facility, which the NRC considered' to be inadequately equipped for the chemical processing of DU; (2) provide followup monitoring for certain individuals who had previously shown elevated uranium in their urine; and (3) safely remove all licensed material, waste, and contamination from the facility so that it could be returned to unrestricted use.
These actions were specified in Confirmation of Action Letters (CALs) issued on November 12 December 8 and 31, 1987 and March 18 and April 1,1988.
Staff Exhibit I at Exhibits 14, 15, and 16; ff. Tr. 102.
- 18. NRC Region IV requested an investigation of Mr. Larsen's NRC licensed activities.
Staff Exhibit I at Exhibit 18. This action was taken in response to questions raised during the NRC inspection and the enforcement conference, concerning Mr. Larsen's previous activities in acquiring, processing, and transferring DU, and questions surrounding bioassay samples and Mr. Larsen's compliance with the CALs.
Id. The investigation results substantiated the NRC staff's concerns that Mr.
Larsen's activities under the general license were conducted with a significant disregard for the safety of himself and his employees, and for
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.the public. health and safety. Staff Exhibit 1.
This'was indicated by the uranium levels'in bioassay samples of employees.
Id. at Exhibits 29-33.
- 19. ;Due to the questions surrounding Mr. Larsea's activities, the apparent use of inadequate controls that resulted in contamination n
exceeding NRC guidelines, evidence of internal contamination of workers.
. and Mr. Larsen's inability to comply with CALs, an NRC Order suspending Larsen Labs General Licenses, dated February 25, 1988, was issued to Mr.
Larsen and his companies. Staff Exhibit I at Exhibit 17. The Order suspended the general licenses for Mr. Larsen and his three firms and Mr.
'Larsen was provided with the opportunity to show cause why.the Order should not have been issued by filing a written answer under oath or affimation and by setting forth the matters of fact and law on which the licensees and Mr. Larsen rely.
Id. Mr. Larsen's response to the Order was sent by letter dated March 18, 1988. Sy Letter of March 18, 1988 with attachments, ff.-Tr. 348.
'C.
Mr. Laraen's' Violation of the 15 Pound Use and Transfer Limit for Source Mterial 20.
10 C.F.R. 9 40.22, Small quantities of source material, states in paragraph'(a) that a general license is hereby issued authorizing commercial and industrial firms, research, educational and medical Institutions and federal, state and local government agencies to use and transfer not mo're than fifteen (15) pounds of source material at any one time for research, development. educational, commercial or operational purposes.
- 21. Records of transfer and shipment by Mr. Larsen of UAA product containing source material were reviewed by Dr. Spitzberg, the NRC inspector, during the November 4-5, 1987, inspection of Mr. Larsen's
Evanston, Wyoming, facility. Spitzberg Testimony at 8-10. The records show transfers from Mr. Larsen's company, Orion Chemical Co., to his customer Hysol during 1987.
Id. The transfers included 16.69 lbs. and 16.77 lbs. of source material that had been used and processed in Evanston, Wyoming, on June 1, 1987 and August 7, 1987, respectively.
NRC Inspection Report 99990004/87-04, ff. Tr. 102, at 8.
- 22. An 01 investigation was initiated for the purpose of determining whether Mr. Larsen knowingly and intentionally violated provisions of his general license'and made false statements in response to NRC CALs. The 01 investigation found that Mr. Larsen also transferred greater than 15 lbs.
of source material that had been used and processed in Wyoming on March 3, 1987(16.01 lbs.) and December 20,1987(16.33lbs.). Staff Exhibit I at 18.
- 23. The December 20, 1987 shipment, in addition to being a violation of 10 C.F.R. $ 40.22(a), was also a deviation from commitments made by Mr. Larsen following the November 4-5, 1987, inspection and contained in a November 12, 1987 CAL, which authorized continued shipments of final source material product up to 15 lbs. Spitzberg Testimony at 15; see also Confirmation of Action Letter dated November 12, 1989, ff. Tr. 102.
j
- 24. Dr. Spitzberg testified that Region IV mana9ement determined I
that, by exceeding the general license quantities of source material authorized by 5 40.22, Mr. Larsen became an unauthorized user. Spitzberg, Tr. 222-223.
- 25. Mr. Larsen was hware of and had previously violated the 15 pound l
use and/or transfer limit of 6 40.22.
See Staff Exhibit 1 at Exhibit 1,
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- p. 2.
In 1982, an Order to Show Cause and Order Temporarily Suspending l
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License was issued to Mr. Larsen, who was doing business as Orion Chemical Company. Staff Exhibit 1 at Exhibit 1.
The Order identified as a violation the possession of more than 15 pounds of source material. Staff Exhibit I at Exhibit 1; Spitzberg Testimony at 12. Mr. Larsen responded to the violation by stating in his March 11, 1983, response, "We do not deny the allegation of having more than 15 pounds at one time." Staff Exhibit I at Exhibit 4.
- 26. Mr. Larsen testified that he had been informed by the NRC in 1982 and it became his unders'tanding that the 15 pound limit of Section 40.22 included source material held as waste. Larsen, Tr. 398.
D.
Mr. Larsen's Violation of the 150 Pound Limit for Receipt of Source Material in Any One Calendar Year 27.
10 C.F.R. 5 40.22(a) states, in part, that a person authorized to use or transfer source material, pursuant to this general license, may not receive more than a total of 150 pounds of source material in any one calendar year.
- 28. Records of source material received by Mr. Larsen in 1987 were reviewed by Dr. Spitzberg during the November 4-5, 1987, inspection of Mr.
Larsen's Evanston, Wyoming facility. Spitzberg Testimony at 9.
The only such records presented by Mr. Larsen showed a total of 150 lbs. of depleted i
uranium metal received from a supplier, Nuclear Metals, Inc. NRC Inspection Report 99990004/87-04, ff. Tr. 102, at 8; Staff Exhibit I at Exhibit 13.
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- 29. Mr. Larsen submitted information to the NRC in March 1988 in i
I response to the Order Suspending License showing that he had shipped from j
Wyoming a total of 155.8 lbs. of source material in 1987.
March 18, 1988 Letter from John Larsen, ff. Tr. 348, at 10.
This submittal also 1
4
showed four shipments of Utah material: on February 2, February 9 February 17, and March 3. 1987.
_I d. These shipments comprised 55.55 lbs.
of source' material.
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- 30. The 01 investigation found, however, that Mr. Larsen shipped 211.34 lbs. of source material used and processed in Evanston, Wyoming during calendar year 1987. See Staff Exhibit I at 22-23. The 61.34 lbs.
of source material above the 150 lbs. received in 1987 from Nuclear Metals Inc. was source material transferred from Mr. Larsen's Utah
' facility to Evanston, Wyoming.
Staff Exhibit I at 18. Mr. Larsen testified that some of this material was in the form of depleted uranium metal slugs.
Larsen., Tr. 461. The 01 investigation found that the four shipments of February 2 through March 3,1987 were comprised largely of source material transferred to Wyoming from Utah for processing. Staff Exhibit I at 17. Dr. Spitzberg testified.that Mr..arsen did not provide infomation regarding these four shipments of Wyoming processed material during his November 4-5, 1987, inspection. Spitzberg, Tr. 216.
- Dr. Spitzberg also testified that the transfer of source material by Mr.
Larsen from Utah to Evanston, Wyoming, involved transfer of possession under the authority of Mr. Larsen's suspended Utah license to possession under the authority of Mr. Larsen's general license for Evanston, Wyoming.
Spitzberg, Tr. 303.
Dr. Spitzberg stated that no records of receipt of the source material transferred from Utah to Evanston were maintained and that the failure to maintain records would be considered a violation of 10C.F.R.640.61(a). Spitzberg, Tr. 301.
- 31. Mr. Larsen testified that he, or his employees, did transfer source material to Evanston from Utah and did so in his belief that this
. action complied with the State of Utah Suspension Order to dispose of the l
material.
Larsen, Tr. 463. Craig Jones of the State of Utah testified that an interpretation would be needed from the Utah Assistant Attorney General to determine whether these transfers would have been in faithful compliance with the Utah Suspension Order and the subsequent settlement agreement. Jones, Tr. 676.
- 32. Mr. Noack testified that he transported source material from Utah to Evanston, Wyoming in buckets with lids. Noack, Tr. 604-06. He stated he was not aware' of the Department of Transportation requirements for transporting this material and had not been instructed by Mr. Larsen on how to properly transport the material.
Id. See generally 49 C.F.R.
Parts 173 and 177. Mr. Larsen testified that the material was transported in barrels and that he knew this was done because he told Kevin Noack to do so. Tr. 708.
E.
Mr. Larsen's Failure to Comply with Item 1 of the November 12, 1987 Confirmation of Action Letter 33.
Item 1 of the Confirmation of Action Letter dated November 12, 1987 stated, in part.
The period between November 10 13, 1987, may be used to complete the processing of the licensed material on hand according to your procedures so long as such processing does not exceed 15 pounds of source material.
The individuals performing this work will wear lapel air samplers to determine personnel exposure to airborne radioactivity, and will submit i
urine samples for uranium determinations before beginning the procedures, and between 48 and 96 hours0.00111 days <br />0.0267 hours <br />1.587302e-4 weeks <br />3.6528e-5 months <br /> following completion of the procedures.
Confirmation of Action Letter November 12, 1987, ff. Tr. 102, at 1.
i.
Baseline Bioassays
- 34. Mr. Larsen failed to obtain baseline urine samples from two individuals who worked in the final processing and cleanup of the
-f Evanston, Wyoming, facility during the November 10-13, 1987, time period.
In his March 18, 1988, response to the Order Suspending License, Mr. Larsen acknowledged the failure and stated that, because the two individuals had not worked for him in a long time, their baseline levels were assumed to be zero. Mr. Larsen further stated that he was trying to keep expenses down. Spitzberg Testimony at 14; see also Letter of March 18, 1988, ff.
Tr. 348, at 3.
35.
Dr. Spitzberg testified that requiring a baseline bioassay before tasks were undertaken would allow the NRC to establish to a higher degree that any evidence of intake, or elevated levels in subsequent samples, could be tied to a particular time and task and would not be a result of work which may have been undertaken previously. Spitzberg, Tr. 232, 233.
Thus, the bionssays could be used to establish a starting point for a worker's body burden of uranium, and could be used to bracket
'in time intakes associated with certain processes and activities.
Spitzberg, Tr. 332.
- 11. Lapel Air Sampling 36.
In his March 18, 1988, response to the Order Suspending License, Mr. Larsen denied the NRC's charge that lapel air samplers were not worn by the individuals. This letter stated, "This is not true. We did wear the lapel air sampler." Letter of March 18, 1988, ff. Tr. 348, at 3.
In testimony, Mr. Larsen admitted that only one of the two individuals who performed the work wore a lapel air sampler. Larsen, Tr. 520, 521.
F.
Mr. Larsen's Failure te Comply with the Confirmation of Action Letter dated December 31, 1987.
- 37. Dr. Spitzberg provided testimony as to the NRC concerns that led to the December 31, 1987, CAL. Spitzberg Testimony at 16-17. On Decem-
L h
i 4 :
ber 31,'1987, 'the NRC received from Mr. Larsen the results of the followup bioassay sampling comitted to in the December 8,1987, CAL. M. Two of the samples exceeded the 30 microgram per litre (ug/1) action level of Regulatory Guide 8.22 with one sample measuring 88 +/- 4 ug/1. M. A handwritten note attached to the sample results and signed by the
)
individual whose sample measured 88 ug/l stated that he had been eating in the Evanston facility durirg the cleanup. He indicated that the high i
result may have been caused by contamination of the food he ingested.
.I.d.
j
- 38. The overall pattern of elevated bioassay measurements undermined the NRC's confidence that any of the licensee's activities, even the cleanup of the facility, could be performed safely without additional centrols. Spitzberg Testimony at 16-17. The fact that there had been
]
eating in the facility in which the NRC and, later, Oak Ridge Associated Universities had found contamination was further cause for concern. M.
The December 31, 1987, CAL was issued to cease all work activities and to l
continue a followup urine sampling regime to track, over time, the urine levels of two individuals. M. The followup sampling was to include the submission of background urine samples, which is a standard quality i
I assurance provision for sampling programs. M. The background samples were also required because Mr. Larsen continued to claim that the high bioassay results were due to contamination of the sample container.
Id.
1.
Background Urine Samples i
l 39.
Item 2 of the December 31, 1987, CAL stated that by January 1 j
1988, Mr. Larsen was to obtain from two designated employees urine samples I
for uranium and albuminuria analyses by a reputable laboratory.
In
addition, Mr. Larsen was to submit with these samples a background urine sample, for uranium analysis only, obtained from an individual who had not worked with depleted uranium and was known to have no lung or systemic uranium burden other than from natural background.
See Confinaation of Action Letter December 31,1987 ff. Tr.102.
- 40. The NRC Staff testified and Mr. Larsen admitted that background samples were not submitted as required by the CAL. Spitzberg Testimony at 17; March 18, 1988 Letter, ff. Tr. 348, at 5.
Mr. Larsen stated during cross-examination that he, as a general chemist, would agree that ordinary quality control would require the submission of blanks and that the submission of blanks would have helped resolve the question of whether containers were contaminated. Larsen, Tr. 468, 469.
ii.
Bioassay Samplino Program 41.
Item 3 of the December 31, 1987, CAL states that Mr. Larsen should collect additional urine samples for uranium analysis only from the two individuals. identified at a frequency of once every three days until such time as the results of two consecutive samples were less than 30 ug/1. Confirmation of Action Letter December 31, 1987, ff. Tr. 102, et 1.
All urine samples were to be voided into containers known to be free of uranium contamination, and the date and time of voiding were to be documented.
Id.
- 42. Contrary to the above, there were no data from bioassay samples obtained during the period from January 3 to January 10, 1988, for one of i
the individuals, and from December 31, 1987, to January 10, 1988, for the l
other individual.
Spitzberg Testimony at 21. Neither individual had, i
1 l
l
prior to these dates, yielded consecutive three day samples of less than 30 ug/1. M.
- 43. Drs. Spitzberg and Fisher testified to the importance of the three day sample frequency and the significance of not adhering to the specified program. Given the uncertainties of the in-vivo solubility of UAA, the three day frequency was the best judgment by the NRC of a sample regime that would be expected to yield sufficient data to establish an excretion curve. Spitzberg, Tr, 181.
Drs. Spitzberg and Fisher testified that without the intermediate' samples for which there were no data the low readings of the January 10-13, 1988, samples could not be reliably interpreted in relation to the previous elevated results of December 28, 3
1987 - January 3,1988. Spitzberg, Tr.182; Fisher, Tr. 334.
- 44. Mr. Larsen's March 18, 1988 letter (ff. Tr. 348) in response to the Suspension Order addressed the failure to satisfy this portion of the sampling program. Mr. Larsen indicated that samples were obtained from December 31, 1987, to January 3,1988, and were sent to his contractor laboratory for analysis. M.at4,5. The samples leaked in shipment and, after learning of this, Mr. Larsen asked for different sample containers from his laboratory. M. After receiving the containers, Mr.
Larsen states that he took samples on January 10 and 13,1988. M. There was no mention made of any intermediate samples or of their fate.
45.
In Mr. Larsen's sworn statement obtained during the OI investigation, the account parallels the sequence identified in Mr.
Larsen's March 18, 1988 letter.
See Staff Exhibit 1 at Exhibit 27.
In his statement, Mr. Larsen admits to discontinuing the sampling of one individual on December 31, 1987, and the other on January 3,1988. Jd.
.He further. states that he did not obtain samples on January 6, 1988, because he did not have trustworthy containers, and that he " resumed" sanpling on January 10, 1988.
Id.
- 46. During cross-examination, Mr. Larsen testified that he did obtain samples on January 6,1988, and subsequently threw them out because he thought that they were contaminated. Larsen, Tr. 526-527.
- 47. During Mr. Larsen's cross-examination of the Staff's panel, Mr.
Larsen stated that the samples of January 6,1988, vare obtained with the expectation that, if the results of the earlier samples were high', then the January 6 samples would be available to test until the results were below 30 ug/1. Larsen, Tr. 167, 168. According to Mr. Larsen, these samples that he obtained for analysis in the event earlier samples were high were thrown out when the earlier samples did test high. Tr. 167.
- 48. Mr. Larsen testified that Dr. Spitzberg of the NRC would be in a better position than he to make a judgment about the reliability of bioassay results. Tr. 539-540. Dr. Spitzberg testified that had he known at the time the results of the samples Mr. Larsen thought were questionable, and had he known that there were additional samples that were not analyzed, then he would definitely have advised Mr. Larsen to have the additional samples analyzed and not to throw them out. Tr. 163.
iii. Reporting of Results 49.
Item 4 of the Confirmation of Action Letter dated December 31, 1987, required Mr. Larsen to submit copies of the results of urine sample measurements to the Region IV office as he received them. See Confirmation of Action Letter December 31, 1987, ff. Tr. 102, at 1.
';. 4
- 50. Dr. Spitzberg testified that he was expecting to receive results of the bionssay sampling performed in accordance with the CAL by late January. Spitzberg Testimony at 18-19. On February 4, 1988, after returning to the office from travel, Dr. Spitzberg called Mr. Larsen to inquire about the sample results. M. Mr. Larsen informed Dr. Spitzberg that he had just received the results and would forward a copy.. M. He also indicated that the results were within normal range, although specific'information about the measurements was not conveyed during this conversation. M.
- 51. A copy of the results discussed during a February 4,1988, telephone conversation was received by the NRC on February 8,1988. M.
. at 19. The results for the two individuals sampled were less than 5 ug/l but corresponded to samples obtained on January 10 and 13, 1988. M.
There were no results of samples obtained on or before January 1, 1988 as specified in the CAL, and no information had been provided by Mr. Larsen regarding any such samples. M.at20. Since the results received did not satisfy the sampling program specified in the CAL, Dr. Spitzberg placed another call to Mr. Larsen on February 9,1988, to inquire about any earlier samples. H. During this conversation Mr. Larsen revealed to Dr.
Spitzberg that samples had been obtained on December 28, 1987, through
. January 3,1988, but were abnormally high and unreliable. M. He indicated that he had not submitted these results to the NRC, nor had he informed them of the results because of their questionable nature. M.
He stated that he believed that the sample containers were again contaminated. M. Dr. Spitzberg asked Mr. Larsen to read him the results of these samples and forward a copy of the sample report. M.at21.
. 22, 1988. All sample Region IV received this report on February 52.
results were greater than 30 ug/1. H. The range of results was 35 ug/l The report noted that the samples were received leaking with to 282 ug/1.
probable sample contamination in collecting specimens from plastic bags.
showed that the samples were received
\\
The report, dated January 25, 1988, on January 8,1988, and assayed the same day. M. Mr. Larsen's written statement obtained during the 01 investigation stated that he was informed Staff Exhibit I at of the results of these samples on Janeary 8,1988.
Exhibit 27.
Dr. Spitzberg testified that prior to the February 9,1988, 53.
telephone call placed to Mr. Larsen he had not received any information Spitzberg Testimony at 18.
from Mr. Larsen concerning these samples.
Ir his letter in response to the NRC Order Suspending License, 54.
Mr. Larsen stated that he did not send the results of the December 28, 1987 - January 3,1938, samples to the NRC because they were questionab See Larsen letter of March 18, 1988, ff. Tr. 348. Mr. Larsen stated that he questioned the results because of damage to the box containing the samples and the fluorescence of the sample jars. M. Mr. Larsen admitted that he should have sent the lab results. M.
Mr. Larsen testified during the hearing that he thought he 55.
called the NRC before February 4,1988, to inform them of the December 28 Larsen, Tr. 622.
In other statements, 1987, to January 3, 1988, samples.
Mr. Larsen also testified that he did not report the leaking of the bottles or tha results of these samples to the NRC as soon as he received Mr. Larsen testified that he did not think that them. Tr. 165, 539, 546.
suspect information was wanted, but only reliable information. Tr. 546.
w.
1 :
- 56. Dr. Spitzberg testified that the wording and intent of the CAls'
' bioassay result reporting requirement was to enable the NRC to evaluate the data as soon as they became available, to determine whether there was evidence of exposure to employees, and to determine whether additional controls were necessary. Tr. 164.
- 57. The 01 investigation concluded that Mr. Larsen made a false L
statement by omission in his responses to @e CALs by withholding information reflecting high bioassay results. Mr. Larsen's. stated basis for' withholding the bioassay results was that he unilaterally did not accept the test results. Staff Exhibit I at 1.
- 58. Mr. Griffin testified that part of his conclusion of willfulness involved Mr. Larsen's conscious decision not to comply with his commitment to provide the high bioassay results information. See Staff Exhibit 1 and 21-23. The conclusion that Mr. Larsen's noncompliance was willful remains valid despite Mr. Larsen's subsequent explanations for not providing the information.
Id. The purpose of the CAL was to determine whether anyone had suffered harm.. The seriousness of the matter was the reason the NRC issued the CALs. Mr. Larsen's unilateral decision not to honor his commitment contained in the CALs was willful. M.
G.
Elevated Bioassay Results
- 59. Dr. Fisher testified that the NRC Regulatory Guide 8.22 action levels of 15 ug/ liter, for followup investigation, and 35 ug/ liter, 3/
for work restrictions, are appropriate for protectior, of workers from the 3/
Regulatory Guide 8.22 in effect in 1987 specified a 30 ug/ liter action. level. This level was revised to 35 sg/ liter in an August 1388 revision.
- l..
chemicdl toxicity of uranium compounds. Fisher Testimony at 12. Urine l
samples cor.taining 35 ug/ liter or more, assuming the sample was not contaminated externally, indicate that the individual sampled was exposed to uranium and.that there is potential for uranium concentrations in the 1
body exceeding levels that are generally considered to be safe.
Id.
- 60. Mr. Larsen, in filings made tc the NRC, in statements made to NRC investigations, and in testimony, made reference to his conclusions that high bioassay samples, rather than being the result of individuals' uranium intake', were the result of damaged or contaminated sample containers. Larsen Letter of March 18, 1988 at 5; Larsen Letter of December 26,1988 at 3-4; Staff Exhibit I at Exhibit 27; Tr. 255, 467, 471, 527, 528, 532, 534-5, 537.
- 61. Mr. Larsen testified that he used his conclusions regarding contaminated samples to: a) justify ' tis not notifying the NRC, as required, of the high sample results of December 28, 1987, to January 3, j
1988 (March 18, 1988 letter, ff. Tr. 348, Tr. 165, 540, 546, 623); and b)
)
l to delay acquisition.of samples at the required three day frequency until different sample containers were received (Larsen March 18, 1988 letter; 1
StaffExhibit1atExhibit27).
]
- 62. Of twenty-four bioassay samples obtained from workers at the Evanston, Wyoming facility in 1987, 12 exceeded the 30 ug/l action level.
l l
Staff Exhibit I at Exhibit 34. These samples were obtained in both glass containers and pharmaceutical plastic containers. Larsen letter of March 18, 1988, ff. Tr. 348. Results greater than 30 ug/l were measured by te different analytical laboratories.
Id. Glass sample containers, which l
had been stored in Mr. Larsen's Utah facility and were suspected by Mr.
Larsen of being contaminated, yielded both elevated results greater than 30 ug/l and background results less than 5 ug/1. Tr. 540, 541.
- 63. Mr. Larsen also suspected that some sample cor. tainers may have been contaminated with substances other than uranium, which he testified could give false readings from fluorimetry. Tr. 254, 529. Dr. Fisher testified that, generally, analytical laboratories that process uranium bioassay samples acidify the sample with concentrated nitric acid to break
-down organic materials that might be in the sample that could interfere with the fluorometric measur'ement. Fisher, D. 255. Therefore, generally substances other than uranium would not be measured in these samples. 3
- 64. Mr. Larsen also testified that he interpreted dramatic drops in uranium levels in individuals' bioassay samples as evidence of contaminated sample containers. Larsen, Tr. 471. Dr. Fisher and Spitzberg testified that for such highly soluble compounds of uranium, rapid decreases are likely. Fisher Testimony at 13; Spitzberg, Tr.
180-181.
- 65. Mr. Larsen testified that the bioassay samples required by the CALs were the first urine samples required in all of 10 years. Larsen, Tr. 170. Later, Mr. Larsen admitted that he had been required to perform urine sampling every six months under his Utah specific license. Larsen, Tr. 539. Mr. Larsen testified that he performed a few of them but did not continue performing them because he did not think there was a problem. y,
- 66. Drs. Fisher and Spitzberg testified that because of Mr. Larsen's failure to follow the bioassay sampling program specified in the CALs, the results of his sampling could not be reliably interpreted. Tr. 182, 334 Dr. Spitzberg stated that Mr. Lt.rsen's failure to report results that Mr.
l a
.. Larsen had attributed to contaminated containers denied the NRC the opportunity to come to the same conclusions as Mr. Larsen had reached.
Tr. 164.
- 67. While Mr. Larsen believed that elevated bicassay samples were caused by things other than uranium in the urine, the Staff pointed to evidence in the record making the intake of uranium by Mr. Larsen's workers plausible. There were the bioassay results themselves, which according to Drs. Fisher and Spitzberg, indicate uranium exposure. Fisher Testimony'at 12. Staff Exhibit I at Exhibit 34. There was contamination found in the Evanston, Wyoming facility. See Inspection Report 99990004/
87-04, ff. Tr.102; see also attachments to April 1, 1988, CAL, ff. Tr.
102. There was the likelihood of uranium intakes because of the inadequacy of the Evanston facility. An individual who had been eating in the facility indicated his food may have been contaminated. Staff Exhibit I at Exhibit 33.
Finally, Mr. Noack testified that a dusty spill of dried UAA crystals took place within a foot of him at the Evanston, Wyoming, facility when he'was not wearing any protective clothing or equipment.
Tr. 610. Shortly after the spill, Mr. Noack submitted a urine sample, which he recalled as one of the times when the reading was high. g.
H.
Adequacy of Mr. Larsen's Evanston, Wyoming, Facility for Processing Uranium
- 68. Dr. Fisher testified concerning the protective features that should be employed when processing depleted uranium in a bench setting.
Fisher Testimony at 16-18.
In general, such facilities use filtered ventilation systems to remove hazardous contaminants that have the potential to become airborne. M. Work may need to be performed in chemical hoods with ventilation. M. Radiation detectors are used to L
-4..
measure exposures. M. Workers wear protective clothing, gloves, caps,
- and safety glasses, and are surveyed for contamination. M.
Portable survey instruments,-fixed station air monitors, and battery-powered breathing-zone personnel air samples are used. M.
Respiratory protection devices are used for conditions where intake limits could be exceeded, and workers follow a scheduled bioassay program to monitor the potential for intakes of uran'ium. M.
- 69. Dr. Spitzberg documented his observations concerning the Evanston, Wyoming, facility in an inspection report.
Inspection Report No. 99990004/87-04, ff. Tr. 102. His written testimony provided additional information on some of the potential hazards observed.
Included among these was the use of toxic or flammable chemicals such as benzene, 2,4 pentanedione, and nitric acid by individuals, often working alone, in a facility with no fume hoods or plumbing. Spitzberg Testimony at 6-8.
Despite the fact that the inspection was announced in advance, Dr. Spitzberg found widespread low-level contamination below NRC
- guidelines within the facility, and fixed contamination above NRC guidelines in several locations. 3. at 7 The air intake screen to a portable heater showed contamination indicating the presence of airborne radioactivity at one time.
I_d,.
There were visible areas of apparent spills of uranium. M.
Independent surveys by Oak Ridge Associated Universities on January 19-20, 1988, confirmed the presence of fixed i
contamination above NRC guidelines. M.at5; March 18,1988 CAL, ff. Tr.
102. At the time, the facility and several pieces of equipment within the l
facility could not be released for unrestricted use without first I
t
' 'e )-
undergoing suitable' decontamination.
See attachment to March 18, 1988 l
1 CAL, ff. Tr. 102 at 6.
I 70._ Mr. Larsen, in his March 18, !.988 letter responding to the Order Suspending License, claimed that "on the whole, we were much improved in our work operations in [Evanston as compared with Utah.]" Letter of March 18, 1988, ff. Tr. 348 at 7.
- 71. Dr. Spitzberg testified to the contrary, however, that many of j
the exposure controls required by Mr. Larsen's suspended Utah specific license had not been used in Evanston. Licensee's Exhibit 1; Spitzb' erg Testimony at 7-8.
These included ventilation systems with HEPA filters, fume hoods, filtration units, and air samplers. M. None of the sinks I
were connected to plumbing or drains. Staff Exhibit 10; Spitzberg Tr.
129.
In addition, Mr. Larsen testified that he did not perform the urinanalysis during his Evanston processing that he was required to perform in Utah. Larsen, Tr. 419. He stated his reason for not doing so was that he did not think he had a problem there. M. Urinanalysis l
bioassays, all but two of which were required by the CALs dated Novem-ber 12, December 8 and 31, 1987, showed, however, that there was a problem. See Staff Exhibit 1 at Exhibits 29-33. From February 1987 to February 1988, Mr. Larsen had obtained urine samples from four individuals who worked in Evanston, Wyoming. M. All four of these exceeded the 30 ug/l action level of Regulatory Guide 8.P2. M. Of twenty-four samples reported, twelve exceeded this level. Exhibit 34 within Staff Exhibit 1.
In addition, one worker with a high result submitted a note saying his been eating in the facility could account for his elevated bioassay.
Spitzberg Testimony at 16.
- 72. Mr. Larsen admittad that the Evanston facility was not well suited for the kind of operation he was conducting. Larsen, Tr. 370; 1
Larsen, Tr. 408. Mr. Larsen's past 'istory showed several moves of his operations.to processing facilities that were not identified to, or known I
by, regulatory authorities at the times of the moves. Tr. 700, 701. Mr.
Larsen testified that he did not' consider the location or edequacy of tl' facilities where his processing was conducted to be a foremost health and i
l
. safety concern.
Larsen, Tr. 496. Mr. Larsen testified that when the installation of plumbing was delaye'd at his Utah facility, he was forced I
to work out of less than ideal workplaces. Larsen, Tr. 365.
Mr. Larsen stated that he did not implement all of the requirements of his Utah j
license in Wyoming because he understood that they would not be required under a general license. Larsen, Tr. 549. The fume hoods Mr. Larsen had acquired for this Utah facility were never installed in Evanston. Larsen, Tr. 421. Mr. Noack testified that while he considered the scrubber to be a fume hood, he was not sure how adequate the ventilation was in the Evanston facility. Noack, Tr. 590, 573. Mr. Larsen testified that he I
monitored for uranium dust only after cleaning up from each iatch processed. Larsen, Tr. 422. He stated that on the average, a batch would take two weeks to process. M.
I.
Public Health and Safety Implications of Violations
- 73. Dr. Spitzberg indicated that Mr. Larsen, members of his family, and his employees are members of the general public at risk to uranium exposure when safety guidelines are violated. Spitzberg, Tr. 193.
- 74. The radiological and toxicological hazards of uraniur., and specifically those' pertaining to UAA, were presented. Dr. Tisher's l
'l
testimony described the physical and chemical characteristics of uranyl acetyl acetate (UAA) produced from dissolved depleted uranium metal. Dr.
Fisher also described in detail the known toxicological effects and radiation hazards associated with the inhalation of soluble and insoluble uranium, and ways in which uranium is metabolized once taken into the body. Fisher Testimony at 2-9.
- 75. Uranium is a weak metallic poison, having toxic effects on the kidneys and <.irculatory system at levels exceeding known thresholds.
Fisher Testimony at 4.
Since uranium is primarily an alpha-emitter, even I
small intakes of uranium may lead to increased risks of radiation-induced bone cancer or lung cancer. Fisher Testimony at 5.
Dr. Fisher presented risk estimates based on the recommendations of international scientific advisory groups and related those estimates to the types of uranium materials worked with in the production of uranyl acetyl acetate.
Fisher Testimony at 5-7, 23-24.
- 76. The metabolism,4etention, clearance and toxicological effects of UAA are clot,ely dependent upon the solubility classification of the inhaled uranium aerosol. M. The solubility classification of VAA processed by Mr. Larsen is not known kmse experiments to determine the solubility have not been performe(.
Fisher Testimony at 5.
Uranyl acetates are, however, identified as Class D (highly soluble) by the International Commission on Radiological Protection [ attachment to Fisher Testimony]; organometallic acetates (such as UAA) would be expected to be slightly less soluble in body fluids.
Fisher Testimony at 5.
Therefore, the major risk to human health from inhalation of UAA is most likely to be kidney damage and loss of kidney function. M.at5,6. The health
g
(
ln [,
hazards to the kidney from depleted uranium are essentially the same as f
-those from natura'. or slightly enriched uranium. Fisher Testimony at 7.
- 77. Continuous exposure to low levels of uranium'can lead to increased. uranium concentrations in body tissues. Fisher Testimony at 9-10.
l
- 78. Monitoring for uranism in humans is accomplished by direct lung counting for insoluble uranium and by urinalysis for excreted soluble uranium. Dr. Fisher described the purposes for requiring baseline urine sampling. M. Baseline urinalyses are important for. establishing the normal levels by individuals, because there is considerable variation in the amounts of uranium to which the general public is naturally exposed by comunity drinking water supplies. Fisher, Tr. 234. Baseline sampling establishes the normal excretion of uranium, provides an indicator of occupational exposure at a previous facility, and indicates whether an occupational exposure has recently occurred at the current facility. M.
- 79. Dr. Fisher identified five micrograms of uranium per liter of urine as the lower limit of detection for uraniam fluorometry measurement systems, and levels less than 5 ug/l as typical background levels in an unexposed member of the general public. Fisher Testimony at 10. Levels of. uranium in urine samples exceeding 15 ug/1, which is an action level in Regulatory Guide 8.22, indicate positive exposure to urarium. M.at13.
Levels of uranium in urine samples exceeding 35 ug/l are cause for concern for potential toxicological damage to the kidneys. M.at11-15. Data on uranium urinalyses of workers at the Wrangler facility were insufficient for performing a complete dosimetry study or to establish trend relation-ships. Fisher, Tr. 181-182. However, data presented included numerous u
l 1
l 34 I
bioassay results exceeding 39 69/1 of uranium in urine samples, indicating that intakes above background levels of uranium had likeb necurred. See Staff Exhibit 1 at Exhibits 29-32.
J i
- 80. Regulatory Guide 8.22 was written specifically to describe
)
acceptable urine bicassay programs for facilities processing soluble
. uranium compounds. Although the Regulatory Guide addresses bioassay at
" uranium mills," there are several other types of uranium processing facilities that handle soluble terms of uranium for which the Regulacory
~
Guide is equally applicable, including the production of UAA from depleted uranium metal. Fisher Testimony at 15-16.
81.
Regulatory Guide 8.22 describes actions to be taken following indications of bioassay results exceeding preselected levels. These include confirmation of results by repeat analysit and other corrective actions to protect worker health and safety.
It was the opinion of the NRC Staff that the failure of the licensee to collect and analyze urine samples each three days following a reported "high" measurement constituted a lack of action to protect himself and other employees at the facility. See Staff Exhibit 1 at Exhibit 34. Dr. Fisher and Dr.
Spitzberg testified during cross-examination that the failure to sample a soluble uranium in urine during the short time period when the uranium is being excreted would make it very difficult to establish the nature of the intake or the solubility characteristics of the material to which a worker may have been exposed. Tr. 331, 332, and 334 j
l
- 82. Mr. Larsen did not present any contradictory evidence or any I
expert testimony regarding the health and safety aspects of uranium.
k 1
L 1
b
I J.
Revocation As A Remedy,
- 83. Mr. Flack addressed the issue of revocation as a remedy in his prepared testimony entitled " Testimony of Edwin D. Flack," ff. Tr. 91 and in his testimony entitled " Testimony of Edwin D. Flack Responding to Questions Raised by the Licensing Board on Revocation as a Remedy," ff.
Tr. 92, which answered specific questions about revocation as a remedy that the Atomic Safety and Licensing Board identified in its March 1, 1989 Order.
- 84. Based on Mr. Larsen's past enforcement history, the NRC concluded that:
(1) Mr. Larsen had failed to fulfill commitments made on behalf of his firms to NRC and the State of Utah; (2) Mr. Larsen had made contradictory statements to NRC and the State of Utah authorities; and (3)
Mr. Larsen's firms had processed uranium in an unsafe manner with inadequate controls and resulting contamination. Flack Testimony at 5-7.
These actions demonstrated an unwillingness to comply with regulatory requirements and safe work practices for many years.
- 85. The August 15, 1988, Order Revoking Licenses was issued in accordance with Section V.C of the NRC's Enforcement Policy,10 C.F.R. Part 2, Appendix C, which states that Revocation Orders may be issued for various reasons, including: (a) a licensee's inability or unwillingness to comply with NRC requirements; or (b) a licensee's refusal to correct a violation.
In addition,Section V.B of the Enforcement Policy states that: "In cases involving willfulness, flagrant NRC-identified violations, repeated poor performance in an area of concern, or serious breakdown in management controls, NRC intends to apply its full enforce-ment authority where such action is warranted, including issuing
i r
l.
appropriate orders and assessing civil penalties for continuing violations on a per day basis, up to the statutory limit of $100,000 per violation, per day." Furthermore,Section VI of the Enforcement Policy, states that
"...in serious cases where the licensee's actions in not correcting or p eng infor: nation raise questions about its commitment to safety or its ft. w wncal trustworthiness, the Commission may exercise its authority to issue orders modifying, suspending or revoking the license." See Testimony of Edwin D. Flact. at 10 and " Testimony of Edwin D. Flack L
Responding to Questions Raised by th'e Licensing Board on Revocation as a Remedy" at 1 - 6.
i
- 86. The Staff did not consider any enforcement sanction other than revocation as appropriate to protect the public health and safety, since other available enforcement sanctions, which included several orders and civil penalties, had in the past failed to result in Mr. Larsen's firms complying with NRC and the State of Utah's regulations and license conditions. As stated in Section I of the NRC Enforcement Policy, "In no case, however, will licensees who cannot achieve and maintain adequate levels of protection be permitted to conduct licensed activities."
K.
Mr. Larsen's Direct Testimony
- 87. Mr. Larsen testified that the Staff's November,1989, inspection of his Evanston, Wyoming, facility and subsequent enforcement actions were biased against him.
In his May 22, 1989 letter, Mr. Larsen asserts that an.NRC investigator arrived at his Evanston, Wyoming facility and announced, "WE HAVE THE POWER TO DESTROY YOU." May 22, 1989 letter, ff.
Tr.342,at2(emphasisinoriginal). On cross-examination, Mr. Larsen attributed this threat to Dr. Blair Spitzberg. Larsen, Tr. 383. Dr.
. Spitzberg denied telling Mr. Larsen that he had the power to destroy him or making any statement which could reasonably be construed as a threat.
Spitzberg, Tr. 710-711, 714.
In the circumstances presented and in light of the facts as established, the Board finds that Mr. Larsen's allegation i
I of bias in the inspection is unsubstantiated and that his charge regarding Dr. Spitzberg is not credible.
]
88.
In his testimony Mr. Larsen took exception to the Staff's characterization that his violations in Wyoming together with his past history are indicative of intentional or willful disregard of health and safety regulations.
See Letter May 22, 1989, ff. Tr. 342, at 2-3; Letter March 18, 1988, ff. Tr. 348, at 6.
Mr. Larsen contends that various improvements made to the Wyoming facility show that he did not lack concern for nor willfully disregard health / safety regulations. Letter of December 26, 1988, ff. Tr. 350, at 6-8.
Mr. Larsen also testified that his problems were not the result of his lack of will to comply with regulatory requirements, but rather, resulted from his inability to use a facility he built in Lindon, Utah. Larsen, Tr. 365. Mr. Larsen testified that he could not use the Lindon, Utah, facility because of a dispute with local authorities over a sewage permit. Tr. 369.
- 89. Mr. Larsen also took exception to a characterization that he had irresponsibly abandoned temporary sites. See March 18, 1988 letter, ff.
Tr. 348, at 1-2; December 26, 1988 Letter, ff. Tr. 350, at 5-E.
Mr.
i Larsen testified that he has "been-totally responsible for every facility
[he has] been asked to clean up, either by the State of Utah or the NRC...." March 18, 1988 Letter, ff. Tr. 348, at 1; See also, December 26, 1988 Letter, ff. Tr. 350, at 5.
J.-..
L.
0verall Board Findings 90.
In light of the record discussed above, the Board finds that Mr.
i Larsen, in violation of 10 C.F.R. 9 40.22 limiting the use and transfer of source material to 15 pounds at any one time, on four occastores transferred source material in excess of 15 pounds. These transfers were:
j 16.01 lbs. on March 3, 1987; 16.69 lbs. on June'1,-1987; 16.77 lbs. on August 7, 1987; and 16.33 lbs; on December 20, 1987.
When these transfers i
took place in 1987, Mr. Larsen had prior knowledge of the 15 pound
' transfer linrit..The Board finds that Mr. Larsen in violation of 10 C.F.R.
)
9.40.22 limiting the receipt of source. material to 150 pounds in any one calendar year, received 211.34 lbs. of source material in 1987 at his Evanston, Wyoming facility. The 211.34 lbs. received at Evanston Wyoming included material transferred from Mr. Larsen's Utah facility. Mr. Larsen I
failed to keep any records of receipt of the source material' transferred j
from Utah to Evanston, Wyoming, in violation of.10 C.F.R. 9 40.61(a).
- 91. The Board finds that Mr. Laisen failed to comply with Item 1 of the November 12, 1987, Confirmation of Action Letter during the November 10-13, 1987 time period Mr. Larsen failed to obtain baseline urine samples from two individuals who worked ir. the final processing and cleanup of the
. Evanston, Wyoming facility. Mr. Larsen also failed to provide lapel air samplers'to each of the individuals involved in the final processing and cleanup of the Evanston, Wyoming facility. The Board finds that Mr. Larsen failed to comply with the December 31, 1987, Confirmation of j
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Action Letter. Mr. Larsen failed to provide background urine samples as i
required by Item 2 of the December 31, 1987 CAL, and, Mr. Larsen failed to provide results from bioassay samples obtained every three days in
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accordance with the schedule outlined in Item 3 of the December 31, 1987, CAL. As a result of Mr. Larsen's actions, the three day frequency of bioassay sample results was interrupted for as long as nine days. The Staff could not reliably evaluate the bioassay measurements from the individuals sampled, as required by the December 31, 1987 CAL, because the results before the interruption were elevated and the results following l
the interruption were within the normal range.
- 92. The. Board finds that Mr. Larsen failed to submit copies of the results of urine sample measurements to the Region IV. office as he received them. The bioassay results from samples obtained December 28, 1987, to January 3, 1988, were not reported to the NRC as required by Item 4 of the December 31, 1987, CAL when Mr. Larsen received them on January 8,1988.
Furthermore, a special telephone request for these results was made by the NRC on February 4,1988.
Following the February 4,1988 request, Mr. Larsen provided results from later samples which were not the subject of the NRC request. Mr. Larsen did not provide the requested data until after a second telephone request was made on February 9,1988.
- 93. The Board finds that of the twenty-four bioassay samples obf ined from workers at the Evanston, Wyoming, facility in 1987, twelve samples exceeded the 30 ug/l action level.
It is highly likely that these elevated bioassay measurements were the result of uranium exposure of workers at the Evanston, Wyoming facility during chemical processing of source material and cleanup activities at the facility.
- 94. The Board finds that Mr. Larsen's Evanston, Wyoming facility lacked the necessary protective features and controls that should be
w, Lemployed when processing depleted uranium in the production of UAA. The inadequacy of Mr. Larsen's Evanston Wyoming facility contributed to the uranium exposure of his workers.
- 95. The Board finds that uranium is a hazardous material that exhibits both chemical toxicity and radiological effects on human health.
As a result the processing of uranium for the production of UAA constitutes a sufficient toxicological and radiological hazard to justify the NRC to require adequate controls and protective features for'the protection of worker _ health.
- 96. The Board finds that, in view of Mr. Larsen's past history of
- violations beginning in 1982, and Mr. Larsen's conduct in Evanston, Wyoming,.the Staff's revocation of the general license was appropriate and in conformance with the NRL's enforcement policy.
V.
CONCLUSIONS OF LAW A.
Applicability of 10 C.F.R. Part 20 to the Licensee 1.
The proviso of 9 40.22(b) limits the exemption from the requirements of Part 20 to general licensees who are not in possession of source material under a specific license. The 5 40.22(b) exemption from Part 20 is not applicable to Mr. Larsen because he was in possession of j
source material under a suspended Utah specific license. 4/ Utah is an agreement state, whose specific licenses are necessarily compatible with 4/
Under the terms of-the November 5, 1986 Order suspending his Utah
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specific license Mr. Larsen was prohibited from receiving or using source material. Source material in Mr. Larsen's possession was to be placed in locked storage or transferred to a person authorized to receive such material. Staff Exhibit I at Exhibit 10.
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the NRC's program for the licensing of source material. See Atomic Energy Act of 1954, as amended, AEA 9 274.d. Hr. Larsen's operations in Wyoming were subject to the requirements of Part 20 because Mr. Larsen was in possession of source material under a specific license issued pursuant to Part 40 in that his specific license was issued by the NRC and assumed by Utah when it assumed regulatory authority.
10 C.F.R. 6 40.22.
B.
Possession Limits for General Licensees Under 10 C.F.R.0 40.22 2.
General licensees are prohibited by b 40.22(a) from receiving more than a total of 150 pounds of source material in any one calendar year. This language limiting the receipt of source material by general licensees to 150 pounds was part of an overall rev hion to 10 C.F.R. Part 40 undertaken in 1961. 26 Fed. g. 284, January 14, 1961. The statement of considerations contained in the Notice of Proposed Rulemaking for 10 C.F.R. Part 401 idicated that "the general license is subject to an annual possession limit of 150 pounds of contained uranium." See 25 Fed.
Reg. 8919, September 7, 1960 (emphasis added). The limitation on source material was based on a Commission finding that " possession... of source material in these quantities or products are not significant to the comon defense and security..." Id.
(emphasis added).
C.
Authority for Prohibiting Larsen's Activities Under a General License 3.
The AEA provides that the Commission is to consider public health and safety in the licensing of source material. See AEA SS 62, 63'.)
and 161b. The Commission's Part 40 regulations implementing AEA 66 62, 63b and 161b are thus governed, in part, by considerations for public health and safety.
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Aside from the authority of. Part 40, the Comission's grant of general authority under the AEA authorizes the Staff to issue. orders modifying or revoking any license because of public health and safety concern's or for violation of.Comission regulations. See AEA 56 161b, 1611, 186 and 187.
5.
The Comission has established standards and instructions to govern the possession and use of source material so as to protect health s
and to minimize danger to life or property. See AEA i 161b; 10 C.F.R. Part 20. The regu'atio'ns of Part'20 establish standards for protection against' radiation hazards arising out of activities under licenses issued or authorized by the Nuclear Regulstory Comission. See 10 C.F.R. 9 20.1.
The regulations of.Part 20 apply to persons licensed pursuant to Part 40.
See-10 C.F.R. 9 20.2.
6.
The purpose of the general license is to relieve the identified categories of persons whose uses are considered benign from the burden of applying for a specific license (which requires a demonstration of compliance with Part 20) when it is clear that the intended use woul: not pose a threat to public health and safety. 5_/ See Notice of Proposed Rule Making, 25 Fed. Reg. 8619, September 7, 1960.
5/
Prior to 1961, the general license authorized by 10 C.F.R. 9 40.62 (Effective January 1,1954) was limited to a schedule consisting of classes of persons and associated activities. The classes and activities identified by 9 40.62(c) were:
(1) pharmacists solely for the compounding of medicinals for delivery to consumers; (2) physicians or consumers for medicinal purposes only and not for resale; (3) an educational institution or hospital for educational or medical purposes-only, and not for resale; (4) a commercial, (FOOTNOTECONTINUEDONNEXTPAGE)
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7.
Mr. Larsen's activity, namely the chemical processing of depleted uranium into uranyl acetyl acetate, as the record above demonstrates, is likely to result in releases of radiation into the atmosphere in concentrations exceeding the limits specified in Pr.rt 20.
Mr. Larsen's chemical process also generates quantities of radioactive waste.
It is because of the resulting airborne contamination leading to both external and internal exposure of human beings to source material and the radiation therefrom and the need for waste disposal that Mr. Larsen's chemical process is not benign and could not be conducted except with the projections assured by e. specific license.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE industrial, hospital or governmental laboratory for analytical purposes only, and not for resale.
In 1961 there was a major overhaul of Part 40 which, inter alia moved the schedule of general licenses from 6 40.62 to 6 40 X, See 26 Fed. Reg. 284, January 14, 1961. The enumerated classes of persons authorized as general licensees remained essentially the same. The corrent wording of 6 40.22, which became effective September 19, 1980, deleted the general license authority for pharmacists, physicians, or persons receiving source material from pharmacists and physicians in the form of medicinals and drugs. See 45 Fed. Rec. 55419, August 20, 1980. The only source material used as a medT 8 nal in humans was Thorotrast, which contained alpha emitting thoruim-232 dioxide.
Id. As the medical community became aware of the radiobiological haTards of alpha emitting radionuclides, Thorotrast fell into disuse with production being discontinued in 1965.
Id. Consequently, the 1980 revisien to 9 40.22 also added a new paragraph which prohibited licensees from " administering source material, or the radiation therefrom, either externally or internally, to human beings except as may(be authorized by NRC in a specific license." See 10 C.F.R. E 40.22 c), 45 Fed. Reg. 55420, August 20,1980 (empliasis added).
g.
VI. ORDER WHEREFORE IT IS Of.dERED that, for the reasons set forth above and based on the entire record of this proceeding, the Staff's Order of August 15, 1988, is sustained. Mr. Larsen's general license authority under 10. C.F.R. 6 40.22 is revoked.
In accordance with 10 C.F.R. Il 2.760, 2.762, 2.763, 2.785 and 2.786 of the' Comission's Rules of Fractice, this Initial Decision shall become effective imediately and shall constitute with respect to the matters
' decided herein the final action of the Comission thirty (30) days after
'the date of' issuance hereof, subject to any review pursuant to the g
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'Comission's Rules of Practice.
A notice of appeal may be filed by any party within ten (10) days after service of this Initial Decision. Within thirty (30) days after service of'a notice of appeal (forty (40) days in the case of the Staff),
any party filing a notice of appeal shall file a brief in support thereof.
Within thirty (30) days of service of the brief of the appellant (forty (40) days in the case 'of the Staff), any other party may file a brief in support of, or in opposition to, the appeal.
l iaspectfully submitted, MAA._
,s o Ann P. Hodgdon Cou sel for NRC Sta
-s Norman D. Romney eCounsel for NRC Staff
' Dated at Rockville, Maryland J
this 9th day of August, 1989.
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W' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 AUG 10 P2 :38 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Orr n In the Matter of NN Docket No. 9999004 WRANGLER LABORATORIES, LARSEN (General License Authority LABORATORIES, ORION CHEMICAL COMPANY of 10 C.F.R. 40.22)
AND JOHN P. LARSEN
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E.A.87-223
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ASLBP No. 89-582-01-SC CERTIFICATE OF SERVICE l
I heteby certify that copies of "NRC STAFF MOTION TO FILE FINDINGS" and "NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN THE FORM 0F AN INITIAL DECISION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk by use of express mail service, or as indicated by a double asterisk by hand-delivery this 9th day of August,1989:
Charles Bechhoefer, Chairman **
Dr. Jerry R. Kline**
Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 John P. Larsen*
Mr. Frederick J. Shon**
Orion Chemical Company Administrative Judge 3853 North Sherwood Road
. Atomic Safety and Licensing Provo, UT 84604 Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Panel (5)**
U.S. Nuclear Regulatory Commission
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Atomic Safety and Licensing Washington, D.C.
20555 i
Board Panel (1)**
U.S. Nuclear Regulatory Commission Adjudicatory File **
Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Docketing and Service Section**
Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commissicn Washington, D.C.
20555
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D. Blair Spitzberg William L.. Brown. Esq.
U. S. Nuclear Regulatory Comission -
U.S. Nuclear Regulatory Comission
. 611 Ryan Plaza Drive'-
611 Ryan Plaza Drive, Ste.1000
- Arlington, TX 76011 Arlington, TX 76011
@h, bt 5 k Knn P. Hodgdon
.U Counsel for NRC Staff I
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