[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Notices]
[Pages 52228-52229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24764]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 30-33725; License No. 37-28442-02 EA 95-183]
J&L Testing Company, Inc., Canonsburg, PA; Order Suspending
License (Effective Immediately)
I
J&L Testing Company, Inc., (Licensee or JLT) is the holder of
Byproduct Nuclear Material License No. 37-28442-02 issued by the
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR
Part 30. The license authorizes possession and use of Cesium-137 and
Americium-241 in sealed sources. The license, originally issued on
February 7, 1995, was amended on August 22, 1995, and is due to expire
on February 29, 2000.
II
J&L Engineering, Inc., (JLE) a corporation located at the same
address and using the same telephone and facsimile numbers as the
Licensee, held license No. 37-28442-01 for the same three gauges for
which the Licensee is now licensed. John Boschuk, the president of JLE,
is the co-owner, along with Lourdes T. Boschuk, of JLT. JLE's license
was revoked on August 30, 1993, for non-payment of fees and JLE was
ordered, in part, to cease use of byproduct material, dispose of the
byproduct material, and notify the NRC of the disposition within 30
days of that order. On October 5, 1994, a Notice of Violation (Notice)
was issued to JLE for possession of licensed material without a valid
NRC license, as its NRC license had been revoked. On October 11, 1994,
John Boschuk responded to the Notice, stating, among other things, that
the ``* * *equipment [3-Troxler Nuclear Density gauges] has not been
used for over 2 years and has not left the storage area in our
office.''
On November 21, 1994, JLT submitted an application for a license.
The November 21, 1994 cover letter for the application, signed by
Lourdes T. Boschuk, President of JLT, stated the following:
* * * submitted herein is our application to restore our expired
license to store and operate three (3) Troxler Nuclear Density
Gauges (sic). We understand our license was revoked on August 30,
1993. Since that date, these units were not removed from storage nor
used in anyway (sic).
Relying on the application and the statement concerning use of the
gauges after the time the JLE license was revoked, the NRC issued a new
license (License No. 37-28442-02) to JLT on February 7, 1995.
On August 1 and 3, 1995, the NRC conducted a routine safety
inspection of activities authorized by License No. 37-28442-02 at the
Licensee's facility in Canonsburg, Pennsylvania. During the inspection,
an NRC inspector determined, based on a review of utilization logs,
that one of the gauges, which JLE and the Licensee separately had
stated in writing to the NRC were in storage, had been used on
September 1 and 2, 1994 (at a temporary jobsite at the S. Hill Village
Sears project), by either JLE or JLT (when neither possessed an NRC
license). The use of this gauge without a valid NRC license was in
violation of 10 CFR 30.3, which prohibits use of byproduct material
without a valid license from the NRC. In addition to this violation,
the statements by Ms. Boschuk, in her November 21, 1994 letter to the
NRC, and by Mr. Boschuk, in his October 11, 1994 letter to the NRC,
were not accurate and, therefore, constituted a violation of 10 CFR
30.9.
During the August 1995 inspection three additional violations of
NRC requirements were identified. These violations involved the failure
to perform leak tests of the devices (gauges) at the required 6-month
intervals as required by Condition 12 of the license, the failure to
have an approved Radiation Safety Officer (RSO) (the RSO listed on the
license terminated employment on May 26, 1995) as required by License
Condition 11A, and the failure to perform inventories of the gauges at
the required 6-month intervals as required by Condition 14 of the
license. By letter dated September 11, 1995, the Licensee's president
stated that the facts of these violations were correct.
A predecisional enforcement conference was held with the Licensee
on September 15, 1995, to discuss the five violations identified during
the August 1995 inspection. At the conference JLT's president admitted
all five violations but offered no explanations for why the material
had been used notwithstanding the revocation of JLE's license or for
the inaccurate statements made to the NRC.
In addition, based on a September 22, 1995, letter from the State
of New York to JLT, it appears that JLT had not requested or obtained
reciprocity for use of radioactive materials as required by regulations
of the State of New York. JLT also appears to have provided false
statements to the New York State Department of Labor concerning use of
radioactive material in New York State.
III
Although the NRC has initiated an investigation into these
violations, based on the above and on information developed to date,
the NRC concludes that the Licensee violated NRC requirements by: (1)
providing inaccurate information to the Commission, a violation of 10
CFR 30.9; (2) using and possessing licensed material without a valid
NRC license, a violation of 10 CFR 30.3; (3) not performing leak tests
of the gauges at the required 6-month intervals, a violation of License
Condition 12; (4) not having an approved Radiation Safety Officer
(RSO), a violation of License Condition 11A; and (5) not performing
inventories of the gauges at the required 6-month intervals, a
violation of License Condition 14.
The Atomic Energy Act of 1954, as amended (Act), limits possession
and use of byproduct material to those who possess a valid NRC license.
In this case, the Licensee's use of the gauge without a license is a
significant regulatory concern, particularly in view of the inaccurate
information submitted to the Commission in response to the Notice
(JLE's October 11, 1994 letter) and in support of an NRC license
application (JLT's November 21, 1994 letter). Such inaccurate
information was material and influenced the NRC's decision to grant the
Licensee an NRC license. The NRC's concern is further heightened given
the potential safety significance of the other violations - failure to
have an approved RSO, failure to perform required leak tests of the
gauges, and failure to perform periodic inventories of the gauges.
While the investigation is ongoing, the NRC has concluded based
upon the information developed to date that the Licensee, through its
co-owners, who
[[Page 52229]]
knew that JLE's license had been revoked, knew that the NRC had
requested a formal response to a Notice of Violation, and knew it was
submitting information to influence the NRC to grant it a new license,
provided inaccurate information in response to a Notice of Violation
and in obtaining a license from the Commission. In light of the above
and regulatory significance of the submittals, the staff concludes that
the submittal of this false information, if not deliberate, was in
careless disregard of Commission requirements. Further, based on the
correspondence and co-ownership of JLE and the JLT, the NRC concludes
that Mr. and Ms. Boschuk, co-owners of the JLT, are responsible for
compliance with NRC requirements.
The NRC must be able to rely on the Licensee and its employees to
comply with NRC requirements, including the requirement to provide
information that is complete and accurate in all material respects. The
Licensee, through its representatives, has demonstrated an
unwillingness or inability to comply with NRC requirements. The
Licensee's misrepresentations to the NRC, as well as its actions in
violating other NRC requirements, have raised serious doubt as to
whether it can be relied upon in the future to provide complete and
accurate information to the NRC or to comply with NRC requirements.
Consequently, I lack the requisite reasonable assurance that the
Licensee's current operations can be conducted under License No. 37-
26442-02 in compliance with the Commission's requirements and that the
health and safety of the public, including the Licensee's employees,
will be protected if the Licensee is permitted to conduct licensed
activities at this time. Therefore, the public health, safety, and
interest require that License No. 37-26442-02 be suspended, with the
exception of certain requirements enumerated in Section IV below
pending the completion of the investigation. Furthermore, pursuant to
10 CFR 2.202, I find that in light of the willfulness of the Licensee's
conduct, the public health, safety, and interest require that this
Order be immediately effective.
IV
Accordingly, pursuant to sections 81, 161b, 161i, 161o, 182 and 186
of the Atomic Energy Act of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202 and 10 CFR Part 30, It is hereby ordered,
effective immediately, that License No. 37-28442-02 is suspended as
follows:
Pending further investigation and Order by the NRC:
A. All NRC-licensed material in the Licensee's possession shall be
placed in locked storage.
B. The Licensee shall suspend all activities under its license to
use or transfer licensed material. The Licensee shall provide prior
notice to the NRC, Region I before transferring the sources. All other
requirements of the license remain in effect.
C. The Licensee shall not receive any NRC-licensed material while
this Order is in effect.
D. All records related to licensed activities must be maintained in
their original form and must not be removed or altered in any way.
The Regional Administrator, Region I, may, in writing, relax or
rescind any of the above conditions upon demonstration by the Licensee
of good cause.
V
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, within 20 days of the
date of this Order. Where good cause is shown, consideration will be
given to extending the time to request a hearing. A request for
extension of time must be made in writing to the Director, Office of
Enforcement, and include a statement of good cause for the extension.
The answer may consent to this Order. Unless the answer consents to
this Order, the answer shall, in writing and under oath or affirmation,
specifically admit or deny each allegation or charge made in this Order
and shall set forth the matters of fact and law on which the Licensee
or other person adversely affected relies and the reasons why the Order
should not have been issued. Any answer or request for hearing shall be
submitted to the Secretary, U.S. Nuclear Regulatory Commission, Attn:
Chief, Docketing and Service Section, Washington, DC 20555. Copies also
shall be sent to the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, to the Assistant General
Counsel for Hearings and Enforcement at the same address, to the
Regional Administrator, NRC Region I, 475 Allendale Road, King of
Prussia, Pennsylvania 19406-1415, and to the Licensee, if the answer or
hearing request is by a person other than the Licensee. If a person
other than the Licensee requests a hearing, that person shall set forth
with particularity the manner in which his or her interest is adversely
affected by this Order and shall address the criteria set forth in 10
CFR 2.714(d).
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held,
the issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any other
person adversely affected by this Order, may, in addition to demanding
a hearing, at the same time the answer is filed or sooner, move the
presiding officer to set aside the immediate effectiveness of the Order
on the grounds that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section IV above shall be final 20 days from the date of
this Order without further order or proceedings. If an extension of
time for requesting a hearing has been approved, the provisions
specified in Part IV of this Order shall be final when the extension
expires if a hearing request has not been received. An answer or a
request for hearing shall not stay the immediate effectiveness of this
order.
Dated at Rockville, Maryland this 27th day of September 1995.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and
Operations Support.
[FR Doc. 95-24764 Filed 10-4-95; 8:45 am]
BILLING CODE 7590-01-P
