[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Notices]
[Pages 19529-19532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10328]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 30-33725; License No. 37-28442-02; EAs 96-110]
J&L Testing Company, Inc., Canonsburg, Pennsylvania; Order
Revoking License
I
J&L Testing Company, Inc., (Licensee or JLT) is the holder of
Byproduct Nuclear Material License No. 37-28442-02 (License) issued by
the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10
CFR Part 30. The License authorizes possession and use of Troxler
portable nuclear density gauges containing 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. The License was suspended by Order, dated September 27, 1995.
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 portable nuclear
gauges for which the Licensee is now licensed. John Boschuk, Jr.,
President and owner of JLE, has acted as an agent of and consultant to
JLT. JLE's license was revoked on August 30, 1993, for non-payment of
fees. JLE was ordered, among other things, to cease use of byproduct
material, dispose of the byproduct material, and notify the NRC of the
disposition within 30 days of that Order. Notwithstanding that Order,
JLE continued to possess the byproduct material and on October 5, 1994,
a Notice of Violation (Notice) was issued to JLE for possession of
licensed material without a valid NRC license. By letter dated October
11, 1994, Mr. 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 Boschuk, President and owner of JLT and wife of John Boschuk,
Jr., stated the following:
* * * Submitted herein is our application to restore our expired
license to store and operate three (3) Troxler Nuclear Density Gages
(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 We understand our license was revoked on August 30, 1993.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 that the gauges had
not been removed from storage since the JLE license was revoked, the
NRC issued the new License No. 37-28442-02 to JLT on February 7, 1995.
On August 1 and 3, 1995, the NRC conducted a routine, announced
safety inspection of activities authorized by the License at JLT's
facility in Canonsburg, Pennsylvania. During the inspection, an NRC
inspector determined, based on a review of Licensee's documents, that
one of the gauges, which JLE and the Licensee separately had stated in
writing to the NRC were in storage and had not been used since
revocation of the JLE license, had been transferred on September 2,
1994, to SE Technologies, Inc., in Bridgeville, Pennsylvania (which
used the gauge at a temporary jobsite at the S. Hill Village Sears
project), when neither JLE nor JLT possessed a valid NRC license. As
stated by the Chief Engineer of SE Technologies, Inc., Mr. Boschuk had
arranged for the rental, and as stated by a Project Engineer of SE
Technologies, Inc., Mr. Boschuk had personally transferred the gauge to
SE Technologies, Inc. JLT stated at a December 18, 1997, enforcement
conference that uses of the gauge(s) prior to February 7, 1995, and
after revocation of the JLE license were invoiced by JLT. The transfer
of the gauge to SE Technologies, Inc. was a
[[Page 19530]]
deliberate violation of 10 CFR 30.3, which prohibits, among other
things, transfer of byproduct material without a valid license from the
NRC and a deliberate violation of the order revoking JLE's license in
violation of 10 CFR 30.10(a). As a consequence, the statement by Ms.
Boschuk in her November 21, 1994, letter to the NRC, that the gauges
had not been used and had not left storage at JLT since August 30,
1993, was inaccurate in violation of 10 CFR 30.9(a), and the statement
by Mr. Boschuk in his October 11, 1994, letter to the NRC, that the
gauges had not been used for over two years and had not left storage,
was deliberately inaccurate in violation of 10 CFR 30.9(a) and
30.10(a).
During the NRC's August 1995 inspection, three additional
violations of NRC requirements were identified. These violations
involved the failure to perform leak tests of the 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 by the license terminated employment on May 26, 1995), as
required by License Condition 11A; and the failure to perform physical
inventories of the gauges at the required 6-month intervals, as
required by Condition 14 of the license. By letter dated September 11,
1995, JLT admitted that the cited violations had occurred.
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 explanation for why the material
had been used notwithstanding the revocation of the JLE license and
JLT's lack of a license.
Based upon the above, the NRC concluded that JLT's submission of
materially inaccurate information in its license application, and JLE's
submission of materially inaccurate information in response to a Notice
of Violation, were, if not deliberate, in careless disregard of
Commission requirements. These violations, combined with the additional
violations identified during the inspection, caused the NRC to conclude
that the Licensee was unwilling or unable to comply with NRC
requirements and that the requisite reasonable assurance that the
Licensee's operations could be conducted under License No. 37-28442-02
in compliance with the Commission's requirements was lacking, such that
the health and safety of the public, including the Licensee's
employees, would not be protected if the Licensee were permitted to
conduct licensed activities at that time. Therefore, in the interest of
public health and safety, the License was suspended, effective
immediately, on September 27, 1995, pending completion of an
investigation by the NRC Office of Investigations.
III
Subsequently, the NRC Office of Investigations completed its
investigation of JLT. The NRC staff has determined that, in addition to
the violations cited above, JLT committed a number of other violations
of NRC regulatory requirements, as set forth below.
A. Materially Inaccurate Statements Made to NRC
(1) A letter to the NRC dated September 11, 1995, signed by Lourdes
Boschuk and reviewed and edited by John Boschuk, Jr., stated that the
Troxler gauge that was missing at the time of the August 1995 NRC
inspection was in Watertown, New York, and was returned to JLT the next
day. This was a deliberately inaccurate statement in violation of 10
CFR 30.9(a) and 30.10(a). In fact, according to the Chief Engineer of
SE Technologies, Inc., Mr. Boschuk personally transferred the gauge to
SE Technologies, Inc. in July 1995, and requested return of the gauge
on August 14 or 15, 1995. In fact, the gauge was not returned to JLT
until August 17, 1995. In addition, the September 11, 1995, letter
represented that since the August 1995 NRC inspection, all three
Troxler gauges had been in a locked storage cabinet at JLT's premises
and would remain there until the apparent violations identified in the
NRC's Inspection Report were resolved. This inaccurate statement in
violation of 10 CFR 30.9(a) was made with careless disregard for the
facts. In fact, one of the gauges had been transferred to Cashin
Associates, P.C., Hauppauge, New York, on September 6, 1995, and was
not returned to JLT until September 19 or 20, 1995.
(2) During an enforcement conference with the NRC on September 15,
1995, Lourdes Boschuk, President of JLT, stated that JLT's operable
Troxler gauge was in storage and was not used ``at all''. In fact, that
gauge was transferred by JLT on September 6, 1995, to Cashin
Associates, P.C. for use at the Brookhaven Landfill in New York State,
and was not returned to JLT until September 19 or 20, 1995. This
inaccurate statement was in violation of 10 CFR 30.9(a) and was made
with careless disregard for the facts.
(3) In a letter to the NRC dated September 18, 1995, prepared by
John Boschuk, Jr. and signed by Lourdes Boschuk, and sent to the NRC in
response to the NRC's September 15, 1995, letter confirming JLT's
commitment at the September 15, 1995, enforcement conference to refrain
from using the Troxler density gauges pending resolution of the
apparent violations, JLT made several inaccurate statements. The letter
stated that all of JLT's gauges have been in the storage cabinet on the
JLT premises since the visit of the NRC inspector. This was a
deliberate, materially inaccurate statement in violation of 10 CFR
30.9(a) and 30.10(a)(2). In fact, Ms. Boschuk knew no later than
September 15, 1995, during a telephone call to the Director of JLT
immediately after the September 15, 1995, enforcement conference, that
one of JLT's Troxler gauges had been transferred on September 6, 1995,
to Cashin Associates, P.C. in New York State. In fact, Mr. Boschuk
learned from Ms. Boschuk no later than the weekend ending September 17,
1995, that the gauge had been transferred to Cashin Associates, P.C. As
explained above, he also knew that the gauge had been transferred to SE
Technologies, Inc. between July 18, and August 17, 1995, although the
NRC inspection ended on August 3, 1995.
In addition, the letter stated that all three JLT Troxler gauges
were currently locked in the designated storage cabinet on the JLT
premises. This inaccurate statement was in violation of 10 CFR 30.9(a)
and was made with at least careless disregard as to its truth or
falsity by both Mr. and Ms. Boschuk. In fact, Lourdes Boschuk sent
JLT's Radiation Safety Officer (RSO) to retrieve the gauge which had
been transferred to Cashin Associates, P.C., but the RSO did not return
to JLT with the gauge until late in the evening of September 19 or
early in the morning of September 20, 1995. Mr. Boschuk stated at the
December 18, 1997, predecisional enforcement conference that although
he checked the storage cabinet before preparing the letter, and saw
three yellow cases which he assumed contained the gauges, he did not
look inside the cases to verify the gauges were there.
(4) Figure 1 of the November 21, 1994, JLT application, revised
January 6, 1995, depicted a locked steel cabinet on the JLT premises as
the storage site for the three Troxler gauges. However, the cabinet did
not have a lock. John Boschuk, Jr. prepared Figure 1. This materially
inaccurate statement was in violation of 10 CFR 30.9(a) and was
[[Page 19531]]
made with at least careless disregard for the facts by Mr. Boschuk.
B. Unauthorized Use of Byproduct Material and Related Materially
Inaccurate Statements
JLT admittedly used the Troxler density gauge(s) on four occasions
after revocation of the JLE license and before the NRC issued a license
to JLT on February 7, 1995. JLT stated at the December 18, 1997,
enforcement conference that JLT employees used the gauges on those
occasions and that JLT invoiced its customers for the usage.
Specifically, JLT admitted to using the gauge(s) for the following
customers: DelSir Supply in December 1993, Johnson Construction in May
1994, Johnson Construction in June 1994, and PA Soil & Rock Company in
July 1994. These violations of 10 CFR 30.3 were committed with at least
careless disregard by JLT.
As a consequence, the statement by Ms. Boschuk in her November 21,
1994, letter to the NRC, that the gauges had not been used and had not
left storage at JLT since August 30, 1993, and the statement by Mr.
Boschuk in his October 11, 1994, letter to the NRC, that the gauges had
not been used for over two years and had not left storage, were
materially inaccurate in violation of 10 CFR 30.9(a) and made with at
least careless disregard.
C. Violation of License Condition
Condition 19 of the JLT License requires that, when not in use, the
Troxler gauges be kept in a locked cabinet on JLT's premises, as
depicted by Figure 1 of the January 6, 1995, amended application.
Figure 1, prepared by Mr. Boschuk, pictures a storage closet with a
lock. In violation of that requirement, JLT failed to maintain its
gauges in a locked storage cabinet between February 7, 1995 and
sometime before the August 1995 inspection. The failure to maintain the
gauges in a locked cabinet was in violation of Condition 19 of JLT's
License and of 10 CFR 30.3.
D. Destruction of Records Relating to Gauge Usage
According to a witness, Lourdes Boschuk, John Boschuk, Jr. and
others destroyed, altered, sanitized, or otherwise disposed of business
and transactional records shortly after the August 1995 NRC inspection
of JLT, in order to conceal from the NRC the unauthorized use and/or
transfer of Troxler gauges by JLT. Among the records destroyed or
disposed of were invoices and a log documenting use of the Troxler
density gauges. According to a handwritten note, created by a JLT
employee immediately after the September 15, 1995, enforcement
conference, although utilization records were made available to the NRC
inspector, those records could not be subsequently located. The note
further reflected a question whether the utilization records were
``thrown away during sanitization of records?'' Shortly after the
August 1995 inspection, the NRC inspector requested JLT to provide a
copy of a utilization record found during the inspection and which
documented the rental of a gauge to SE Technologies in September 1994,
when neither JLE nor JLT had a valid NRC license. JLT did not provide
the invoice and claimed it could no longer find the document. Condition
19 of JLT's License requires that JLT conduct its licensed activities
in accordance with its Application dated January 6, 1995. The
Application mandates that JLT comply with conditions requiring the
creation of a utilization log for the gauges and the maintenance of the
log for audit purposes. The destruction of the utilization log was in
violation of 10 CFR 30.3 and 30.9(a). The participation of John
Boschuk, Jr. and Lourdes Boschuk in the deliberate destruction of the
utilization log was in violation of 10 CFR 30.10(a).
IV
Based on the above, the NRC concludes that the Licensee willfully
violated NRC requirements, both deliberately and with careless
disregard, and committed violations of NRC safety requirements. Among
the Licensee's willful violations were repeated, materially inaccurate
statements to the NRC regarding unauthorized use of byproduct material,
unauthorized use of licensed material, violation of license conditions
regarding the use and storage of the gauges, and the destruction or
disposal of records related to unauthorized use of licensed material.
As stated above, among the Licensee's violations of safety requirements
were the failure to perform required leak tests, to have an approved
Radiation Safety Officer, and the failure to perform required
inventories of licensed material. The NRC must be able to rely on its
Licensee's integrity and their compliance with NRC requirements. The
Licensee's numerous willful violations and other violations demonstrate
that the Licensee is either unwilling or unable to comply with NRC
requirements.
Consequently, I lack the requisite reasonable assurance that the
Licensee is willing and able to conduct operations under License No.
37-28442-02 in compliance with the Commission's requirements, or that
the health and safety of the public will be protected if J&L Testing
Company, Inc. continues to engage in licensed activity. Therefore, the
public health, safety and interest require that License No. 37-28442-02
be revoked.
V
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 30.10, IT IS HEREBY ORDERED THAT
LICENSE NO. 37-28442-02 IS REVOKED, AND ALL LICENSED MATERIAL CURRENTLY
IN THE LICENSEE'S POSSESSION SHALL BE TRANSFERRED TO AN AUTHORIZED
RECIPIENT WITHIN 7 DAYS OF THE EFFECTIVE DATE OF THIS ORDER. FURTHER,
THE LICENSEE SHALL NOTIFY THE NRC WITHIN TWO BUSINESS DAYS AFTER SUCH
TRANSFER HAS TAKEN PLACE AS TO WHOM THE TRANSFER WAS MADE. THE LICENSEE
MAY TELEPHONICALLY CONTACT NRC'S REGIONAL OFFICE AT 610-337-5000 TO
COMPLY WITH THE NOTIFICATION REQUIREMENT.
VI
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, US Nuclear Regulatory Commission, Washington, DC 20555,
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, Rulemaking and Adjudications Staff, Washington, DC 20555. Copies
also shall be sent to the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, to the Deputy Assistant
General Counsel for
[[Page 19532]]
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.
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.
Dated at Rockville, Maryland this 10th day of April 1998.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 98-10328 Filed 4-17-98; 8:45 am]
BILLING CODE 7590-01-P
