[Federal Register Volume 60, Number 62 (Friday, March 31, 1995)]
[Notices]
[Pages 16681-16683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7921]
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NUCLEAR REGULATORY COMMISSION
High-Way Engineering & Survey Co. et al; Order
In the Matter of High-Way Engineering & Survey Co. and Art High,
dba High-Way Engineering & Survey Co.; Docket No. 030-32271, License
No. IDA-234 (Expired) EA No. 95-024.
Order to Cease and Desist Use and Possession of Regulated Byproduct
Material
I
High-Way Engineering & Survey Co. (Licensee), is the holder of
expired Byproduct Materials License No. IDA-234 (License) which was
issued by the State of Idaho and subsequently became a Nuclear
Regulatory Commission (NRC or Commission) license on April 26,
[[Page 16682]] 1991, when the State of Idaho discontinued its
regulation of radioactive materials. Mr. Art High (owner) is the
president of the Licensee. The License authorized the possession and
use of 10 millicuries of cesium-137 and 50 millicuries of americium-
241:beryllium in sealed sources in gauges. The License expired on June
30, 1991.
II
On January 24, 1995, the Licensee informed the NRC that it still
has a Campbell-Pacific nuclear gauge in its possession, which is
currently stored in a locked storage shed on the Licensee's property
near Bonners Ferry, Idaho. The Licensee neither submitted an
application for renewal of the License prior to its expiration on June
30, 1991, as required by 10 CFR 30.37 nor notified the Commission, in
writing under 10 CFR 30.36, of a decision not to renew the License. Mr.
Art High, the owner and Radiation Safety Officer, stated the Licensee's
intention to terminate the License in telephone conversations on
February 27 and March 23, 1992, and again on January 19, 1995. As of
the date of this order, the Licensee has neither transferred the
licensed material to an authorized recipient nor applied for an NRC
license.
The Licensee was notified of the pending expiration of its License
in telephone conversations with the NRC Region IV Office staff prior to
the License expiration on June 30, 1991. The NRC also corresponded with
the Licensee concerning the status of its NRC license. Specifically, an
NRC letter dated February 28, 1992, reiterated the Licensee's stated
intent to divest itself of the Campbell-Pacific Nuclear Model MC-3
series moisture density gauge and requested that by March 20, 1992, the
Licensee transfer all licensable material to a properly authorized
recipient and provide a completed NRC Form 314 to assure that the
transfer has been completed. A second NRC letter dated March 25, 1992,
again reiterated the Licensee's intent to divest itself of the gauge
and asserted the basis for the NRC's authority to license byproduct
materials and to charge fees. The Licensee also stated its intent
during a May 4, 1992 telephone conversation with the NRC to either
transfer the byproduct material to another licensee or become properly
licensed.
On March 17, 1994, a special, unannounced inspection was conducted
by the NRC. The results of the inspection were documented in an April
15, 1994 letter. During the inspection, the Licensee stated that it
possessed one gauge which was maintained in locked storage and that it
planned to sell the gauge and terminate the License.
During a January 19, 1995 telephone conversation, the Licensee
stated that the reasons it had not divested itself of the gauge was
that it had been unable to sell the gauge and that the manufacturer
wanted a significant amount of money to take possession of the gauge.
On January 24, 1995, the Licensee was again contacted by telephone and,
despite being told that the gauge manufacturer would take possession of
the gauge for no charge, the Licensee refused to transfer it.
III
The Licensee remains in possession of NRC-licensed byproduct
material with an expired NRC license. Possession of such material is
prohibited. At the time the License expired, 10 CFR 30.36(c) required
NRC licensees, in the absence of a timely request for license renewal,
to terminate licensed activities and to properly dispose of licensed
material on or before the expiration date of the license. The Licensee
has violated this requirement by continuing to possess a Campbell-
Pacific Nuclear Model MC-3 series moisture density gauge after its
License expired on June 30, 1991.
Improper handling of the cesium-137 and americium-241:beryllium
sealed sources can result in an unnecessary exposure to radiation. The
Atomic Energy Act and the Commission's regulations require that
possession of NRC-licensed material be under a regulated system of
licensing and inspection. The Licensee's possession of NRC-licensed
material without a valid NRC license and its unwillingness to respond
to numerous NRC written and verbal communications to apply for an NRC
license, demonstrate that it is either unable or unwilling to comply
with NRC requirements.
Given the circumstances surrounding the Licensee's possession of
the byproduct material and its failure to respond to communications
with the NRC, I lack the requisite reasonable assurance that the health
and safety of the public will be protected while the Licensee remains
in possession of the radioactive material without the required NRC
license.
IV
Accordingly, in accordance with Section 8, 161b, 161c, 161i, and
161o of the Atomic Energy Act of 1954, as amended, and 10 CFR parts 20
and 30, IT IS HEREBY ORDERED THAT High-Way Engineering & Survey Co. and
Mr. Art High, dba High-Way Engineering & Survey Co. shall:
A. Immediately cease and desist from any further use of byproduct
material now in their possession, with the exception that sealed
source(s) containing cesium-137 or americium-241:beryllium 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 the
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 and the testing required
by Paragraph A, 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 in their possession within 30
days to a person authorized to receive and possess the material. If the
Licensee does not have sufficient funds to complete the transfer, the
Licensee 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 neither Art High, nor
High-Way Engineering & Survey Co., qualify for a loan to pay for the
transfer; (3) copies of the Federal income tax returns of Art High, and
High-Way Engineering & Survey Co., for the years 1993, 1992, 1991, and
1990: and (4) a signed statement agreeing to allow the NRC to receive
credit information on Art High and High-Way Engineering & Survey Co.,
from a credit agency. In addition, if the Licensee has not been able to
find an authorized person who will accept the byproduct material, the
Licensee 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 to the date of the transfer of the
byproduct [[Page 16683]] material, notify Dr. D. Blair Spitzberg,
Chief, Nuclear Materials Licensing Branch, NRC, Region IV, by telephone
(817-860-8191) 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 IV, in writing, under oath or
affirmation: (1) Confirmation on NRC Form 314, as required by 10 CFR
30.36(c) at the time the License expired, that the cesium-137 and
americium-241:beryllim byproduct material have been transferred, (2)
the last date that the byproduct material was used, (3) a copy of the
survey performed in accordance with 10 CFR 30.36, as required by the
regulation at the time the License expired, and (4) 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 IV, 611 Ryan Plaza Dr., Suite 400, Arlington,
Texas 76011-8064, 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 24th day of March 1995.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and
Operations Support.
[FR Doc. 95-7921 Filed 3-30-95; 8:45 am]
BILLING CODE 7590-01-M
