[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Notices]
[Pages 28519-28521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13599]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No. 030-33244, License No. 07-30056-01 EA 97-202]
Capital Engineering Services, Inc. Dover, Delaware; Order
Revoking License
I
Capital Engineering Services, Inc., (Licensee) is the holder of
Byproduct Nuclear Material License No. 07-30056-01 (License) issued by
the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10
CFR Part 30. The License authorizes possession and use of moisture/
density gauges containing sealed sources. The License was originally
issued on September 14, 1993, and is due to expire on September 30,
1998.
On February 12, 1996, the License was suspended by an NRC Order for
nonpayment of fees. However, on May 17, 1996, the NRC issued a
Conditional Order Extending Time that granted the Licensee's request to
pay the delinquent fees in twelve monthly installment payments and
extended the effective date of the February 12, 1996 Order to March 15,
1997. In addition, the Conditional Order stated that, in the event the
Licensee fails to pay an installment during the 12-month period, each
and every term and condition set forth in the February 12, 1996 Order
will become immediately effective without further notice. The Licensee
failed to make the first installment due June 15, 1996, after the
Conditional Order was issued. Accordingly, on June 16, 1996, the terms
of the February 12, 1996 ``Order Suspending License'' again became
effective.
[[Page 28520]]
II
On October 30, 1996, November 19, 1996, February 20, 1997, and
March 5, 1997, the NRC conducted an inspection at the Licensee's
facility in Dover, Delaware. During the inspection, the inspector
determined that the Licensee had continued to use licensed radioactive
material after issuance of the NRC Order Suspending the License on
February 12, 1996. Specifically, the Licensee used licensed material on
numerous occasions between February 12, 1996, and May 16, 1996, before
the Conditional Order Extending Time was granted, a violation of
Condition A of the February 12, 1996 Order and 10 CFR 30.3.
Additionally, the Licensee continued to use the gauges on numerous
occasions after June 16, 1996, the date on which the Order Suspending
License once again became effective because of the Licensee's failure
to pay the first fee installment required by the May 17, 1996 Order
Extending Time, a violation of Condition A of the February 12, 1996
Order and 10 CFR 30.3.
On October 2, 1996, the NRC issued to the Licensee a letter
reiterating that, given the Licensee's failure to abide by the
installment plan, the License had been suspended as specified in the
February 12, 1996 Order Suspending License. During an NRC inspection on
October 30, 1996, the Licensee informed the NRC inspector that it
continued to use licensed material because it had not received the
October 2, 1996 letter until October 28, 1996.
As a result, the NRC issued a Confirmatory Action Letter (CAL) to
the Licensee on November 1, 1996, which confirmed the Licensee's
commitments to cease use and/or receipt of licensed material. The CAL
references a telephone conversation between Mr. David Johns, the
Licensee's President, and Mr. Frank Costello, NRC Region I, that took
place on October 31, 1996, in which Mr. Johns agreed to the terms of
the CAL.
Concurrently with NRC inspection, the NRC Office of Investigations
(OI) conducted an investigation of these matters. During the
investigation, the Licensee's President stated that he recalled the
October 31, 1996 telephone conversation, but he understood that once he
fully paid the outstanding debt, he could use the gauges. The Licensee,
however, did not pay the outstanding debt 1 and, yet,
continued to use licensed material on numerous occasions from October
29 to, at least, November 19, 1996, a violation of Condition A of the
February 12, 1996 Order and 10 CFR 30.3. In addition, based on the OI
investigation and inspection findings, the NRC determined that the
Licensee failed to test sealed sources for leakage and/or
contamination, a violation of License Condition 13.
---------------------------------------------------------------------------
\1\ By Check No. 2054 dated November 20, 1996, the Licensee paid
$531.16. However, the check did not clear due to insufficient funds.
---------------------------------------------------------------------------
On April 10, 1997, an enforcement conference was scheduled with the
Licensee. However, the Licensee failed to appear for the enforcement
conference. In a subsequent telephone conversation between Mr. David
Johns, the Licensee President/Owner and Mr. R. Blough, Director,
Division of Nuclear Materials Safety, NRC Region I, Mr. Johns indicated
that he was not planning to attend the conference. During that
telephone conversation, Mr. Johns was also informed that the NRC would
proceed with appropriate enforcement action.
III
Based on the above, the NRC has concluded that the Licensee
deliberately violated NRC requirements by continuing to use licensed
material, a violation of 10 CFR 30.10(a)(1), Condition A of the
February 12, 1996 Order, and 10 CFR 30.3. This conclusion is: (1) Based
on the Licensee's continued use of licensed material in violation of
NRC requirements despite the Licensee receiving numerous written
communications that specifically informed the Licensee of the License
suspension; and (2) supported by the fact that the Licensee requested
from the NRC that an installment plan be established to remove the
suspension of the License; the Licensee's President recalled the
October 31, 1996 telephone conversation in which he was specifically
informed that the License was suspended and in which he agreed not to
use licensed material; and the Licensee did not pay the outstanding
debt and, yet, continued to use licensed material. Furthermore, the NRC
has concluded that the Licensee failed to perform leak testing of
sources, a violation of License Condition 13.
The NRC must be able to rely on its Licensees to comply with NRC
requirements. It is important that licensed material be used in
accordance with the applicable NRC requirements. The Licensee's
continued deliberate violation demonstrates that the Licensee is either
unwilling or unable to comply with NRC requirements. Given the
deliberate nature of the violation, as well as the additional
violations of other NRC requirements, as set forth in this section, the
NRC no longer has reasonable assurance that public health and safety
will be protected.
Consequently, I lack the requisite reasonable assurance that the
Licensee is willing and able to conduct operations under License No.
07-30056-01 in compliance with the Commission's requirements, and that
the health and safety of the public will be protected. Therefore, the
public health, safety and interest require that License No. 07-30056-01
be revoked based on violations set forth above.
IV
Accordingly, pursuant to sections 81, 161b, 161i, 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
That license No. 07-30056-01 is revoked.
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, U.S. Nuclear Regulatory Commission Washington, D.C. 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 set
forth the matters of fact and law on which the Licensee or other person
adversely affected relies and the reasons as to why the Order should
not have been issued. Any answer or request for a hearing shall be
submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN:
Rulemaking and Adjudications Staff, Washington, D.C. 20555. Copies of
the hearing request also should be sent to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C.
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 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 interest is
adversely affected by this
[[Page 28521]]
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 Section IV shall be final when the extension expires if a
hearing request has not been received.
Dated at Rockville, Maryland this 15th day of May 1997.
For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program
Oversight, Investigations and Enforcement.
[FR Doc. 97-13599 Filed 5-22-97; 8:45 am]
BILLING CODE 7590-01-P
