[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27742]
[[Page Unknown]]
[Federal Register: November 9, 1994]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-18999; License No. 37-16492-02 (Expired); EA 94-223]
Old Forge Testing Co.; Old Forge, PA; Order to Cease and Desist
Use and Possession of Regulated Byproduct Material
I
Old Forge Testing Company (Licensee or Old Forge) is the holder of
expired Byproduct Materials License No. 37-21381-01 (license) issued by
the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10
CFR Part 30 on July 7, 1983. The license authorized the possession and
use of byproduct material, cesium-137 and americium-241 sealed
source(s) in gauges, in accordance with the conditions specified
therein. The License expired on December 31, 1993.
II
Since the expiration of the License, the byproduct material has
remained in the possession of Old Forge at its S. Keyser Avenue
facility, Old Forge, Pennsylvania. The Licensee did not submit an
application for renewal of the License pursuant to 10 CFR 30.37 prior
to its expiration; nor did the Licensee notify the Commission of a
decision not to renew the License, dispose of the byproduct material,
and submit a completed form NRC-314, as required pursuant to 10 CFR
30.36.
On May 6, 1994, the NRC Region I, issued a Notice of Violation
(NOV) to Old Forge Testing Company, ATTN: Jonathan Szostek, President
and Radiation Safety Officer, for possession of material without a
valid license in violation of 10 CFR 30.3. The letter forwarding the
NOV directed Old Forge to place the radioactive material in its
possession in secure storage until such time as it acquired an NRC
license, and stated that no other use of that material or purchase of
additional material was authorized. Old Forge did not respond to the
NOV. Old Forge was contacted on numerous occasions between March 2,
1994 and June 10, 1994, by Region I staff to determine the disposition
of the byproduct material. In a March 10, 1994 telephone conversation
with NRC Region I, Mr. Szostek stated that he is aware that Old Forge
needs a license, but could not currently effort to apply for one. He
also stated that the gauge was not being used and that it was in locked
storage. On June 15, 1994, the NRC sent Old Forge a letter reminding it
that it is in continuous noncompliance with NRC regulations for
possessing byproduct material without a valid NRC license, and must
transfer the byproduct material to an authorized recipient. By that
letter, Old Forge was informed that it it was unable to transfer the
material to an authorized recipient within 30 days of the date of that
letter, it must inform the NRC, in writing, of the reason why it was
unable to do so. As of this date, Old Forge has not responded to the
letter, not has it transferred the byproduct material to an authorized
recipient. Further, as of this date, Old Forge has not applied for, nor
obtained, an NRC license.
III
Old Forge is in possession of byproduct material without a valid
NRC license. This is prohibited by Section 81 of the Atomic Energy Act
(AEA) of 1954, as amended. Based on the above, Old Forge has violated
10 CFR 30.3, which states that, except for persons exempt as provided
in 10 CFR Parts 30 and 150, no person shall possess or use byproduct
material except as authorized in a specific or general NRC license. Old
Forge has failed to comply with 10 CFR 30.36(b) which requires, in
part, that each licensee notify the Commission promptly, in writing,
and request termination of the license when the licensee decides to
terminate all activities involving materials authorized under the
license.
Furthermore, notwithstanding the several notices concerning the
above from the NRC and the corresponding opportunities to achieve
compliance with the applicable requirements, Old Forge has deliberately
violated NRC requirements by possessing cesium-137 and americium-241
sealed source(s) without a license. This conclusion is based on the
facts that Old Forge never filed a renewal application before the
license issued to Old Forge expired on December 31, 1993, as provided
in 10 CFR 30.37; Old Forge has not responded to the NRC Notice of
Violation issued on May 6, 1993; Old Forge has not responded to an NRC
letter dated June 15, 1994, addressing the previous failure of Old
Forge to respond to the Notice of Violation; Old Forge has deliberately
not disposed of the radioactive material; Old Forge possesses the
radioactive material contrary to 10 CFR 30.3, without a valid NRC
specific license; and Mr. Szostek has stated to the NRC on numerous
occasions that Old Forge Testing Company intends to apply for a new
license but has not done so.
The Atomic Energy Act and the Commission's regulations require that
the possession of licensed material be under a regulated system of
licensing and inspection. Improper handling of the byproduct material
can result in unnecessary exposure to radiation. Because Old Forge has
continued to possess byproduct material without a valid license after
being notified by NRC that the license has expired and that, since they
have not obtained a new license, the material must be transferred to an
authorized recipient, Old Forge has demonstrated that they are either
unwilling or unable to comply with Commission requirements. Given the
circumstances surrounding the possession of the byproduct material
without a license by Old Forge, and its failure to respond to the NOV
dated March 8, 1993, and to the letter dated June 2, 1994, I lack the
requisite reasonable assurance that the health and safety of the public
will be protected while Old Forge remains in possession of the
radioactive material without the required NRC license.
IV
Accordingly, in accordance with Sections 81, 161b, 161c, 161i, and
161o of the Atomic Energy Act of 1954, as amended, and 10 CFR Parts 20
and 30 of the Commission's regulations, it is hereby ordered that Old
Forge Testing Company shall:
A. Immediately cease and desist from any further use of byproduct
material now in its possession with the exception that sealed source(s)
containing cesium-137 or americium-241 shall be tested for leakage by a
person authorized to perform the test prior to transfer of the
source(s) to another person or entity, if a leak test has not been
performed within the last six months prior to transfer.
B. Maintain safe control over the byproduct material, as required
by 10 CFR part 20, by keeping the material in locked storage and not
allowing any person access to the material, except for purposes of
assuring the material's continued safe storage, until the material is
transferred to a person authorized to receive and possess the material
in accordance with the provisions of this Order and the Commission's
regulations.
C. Transfer all byproduct material to a person authorized to
receive and possess it within 30 days of the date of this Order. If Old
Forge does not have sufficient funds to complete the transfer, Old
Forge must provide, within 10 days of this Order, evidence supporting
such a claim by submitting to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, DC 20555: (1) An estimate of
the cost of the transfer and the basis for the estimate, including the
license numbers and identities of the persons who have provided
estimates of the cost of the transfer; (2) written statements from at
least two banks stating that Old Forge does not qualify for a loan to
pay for the transfer; (3) copies of the Federal income tax returns of
Old Forge for the years ending 1993, 1992, 1991, and 1990; and (4) a
signed statement agreeing to allow the NRC to receive credit
information on Old Forge from a credit agency. In addition, if Old
Forge has not been able to find a person who will accept the byproduct
material, Old Forge must provide to the Director, Office of
Enforcement, at the address stated above, within 10 days of the date of
this Order, the names of the persons who have been contacted regarding
acceptance of the byproduct material and the dates that the contacts
were made. A submittal of evidence supporting the lack of sufficient
funds does not excuse noncompliance with this order.
D. At least two working days prior to the date of the transfer of
the byproduct material, notify Dr. Ronald Bellamy, Chief, Nuclear
Materials Safety Branch, NRC, Region I, by telephone (610-337-5200) so
that the NRC may, if it elects, observe the transfer of the material to
the authorized recipient.
E. Within seven days following completion of the transfer, provide
to the Regional Administrator, Region I, in writing, under oath or
affirmation: (1) Confirmation, on NRC Form 314, that the cesium-137 has
been transferred, (2) the last date that the byproduct material was
used, (3) a copy of the leak test performed prior to the transfer, (3)
a copy of the survey performed in accordance with 10 CFR
30.36(c)(1)(v), and (5) a copy of the certification from the authorized
recipient that the source has been received.
Copies of the response to this Order shall be sent to the Regional
Administrator, Region I, 475 Allendale Road, King of Prussia,
Pennsylvania 19406, and to the Assistant General Counsel for Hearings
and Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC
20555.
After reviewing your response, the NRC will determine whether
further action is necessary to ensure compliance with NRC requirements.
Dated at Rockville, Maryland this 1st day of November, 1994.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and
Operations Support.
[FR Doc. 94-27742 Filed 11-8-94; 8:45 am]
BILLING CODE 7590-01-M
