[Federal Register Volume 59, Number 125 (Thursday, June 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15940]


[[Page Unknown]]

[Federal Register: June 30, 1994]


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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-29025, License No. 37-20935-01 (Expired), EA 94-093]

 

Order To Transfer Licensed Materials (Effective Immediately) and 
Demand for Information

    In the matter of: Brian A. Clark, Dunmore, Pennsylvania.

I

    Brian A. Clark was the President and Owner of August Corporation 
(Licensee), the holder of expired Byproduct Materials License No. 37-
20935-01 (License) issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR Part 30 on November 15, 1985. The 
License authorized the possession and use of an americium-241 sealed 
source, not to exceed 44 millicuries, in a Troxler Electronics Labs 
gauge, in accordance with the conditions specified therein. The License 
expired on November 30, 1990, and the NRC has been informed by Mr. 
Clark that August Corporation is now defunct. Since the expiration of 
the License, the byproduct material has remained in the possession of 
Mr. Clark at his residence at 1608 Adams Avenue, Dunmore, Pennsylvania 
18509.

II

    The Licensee did not submit an application for renewal of the 
License under 10 CFR 30.37 prior to its expiration, nor did the 
Licensee notify the Commission, in writing under 10 CFR 30.36, of a 
decision not to renew the License. Although Mr. Clark stated his 
intentions, in a telephone conversation he initiated with Mr. William 
Oliveira, Health Physicist, NRC, Region I, on December 27, 1991, to 
obtain a license in his name, as of this date, Mr. Clark has not 
applied for, nor obtained, an NRC license.
    On February 24, 1992, the NRC, Region I, issued a Notice of 
Violation (NOV) to the August Corporation for failure to request 
renewal, or to file a notice of non-renewal or transfer of the 
byproduct material, prior to expiration of the License. The letter 
forwarding the NOV directed the Licensee to place the gauge in secure 
storage and not to use the material until the Licensee obtained a new 
NRC license. Neither the Licensee nor Mr. Clark responded to the Notice 
of Violation, even though Mr. Clark was again telephonically contacted 
by Mr. Charles Amato, Health Physics Inspector, NRC, Region I, on 
December 29, 1992, and informed that he was illegally possessing 
radioactive material, had not responded to the Notice of Violation, and 
enforcement action could be taken. Although Mr. Clark again stated that 
he wanted to obtain a license in his name, he has not applied for an 
NRC license.
    In addition, in a July 1, 1993 letter, the NRC again reminded Mr. 
Clark of the need to respond to the NRC Notice of Violation. Further, 
Ms. Sharon Johnson, Administrative Assistant, NRC, Region I, in a 
telephone conversation that Mr. Clark initiated on February 25, 1994, 
and telephone conversations that Ms. Johnson initiated on March 15, 
1994, and March 28, 1994, reminded Mr. Clark of his possession of NRC-
licensed material without a license. Mr. Herbert Kaplan, Senior Reactor 
Engineer, NRC, Region I, discussed the same issue in a subsequent 
telephone conversation that he initiated on April 28, 1994. To date, 
Mr. Clark still possesses the gauge without an NRC license and without 
applying for such a license.

III

    Mr. Clark remains in possession of NRC-licensed radioactive 
material without a license. This is prohibited by Section 81 of the 
Atomic Energy Act of 1954, as amended, and by 10 CFR 30.3, which state 
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. Furthermore, based on the above, 
Mr. Clark has deliberately violated NRC requirements by possessing the 
gauge without a license. This conclusion is based on the fact that Mr. 
Clark never filed a renewal application before the License issued to 
August Corporation expired on November 30, 1990, as required by 10 CFR 
30.37; Mr. Clark has not responded to an Inquiry Letter (No. 90-001) 
dated November 28, 1990, sent by the NRC before the License expired; 
Mr. Clark has not responded to the NRC Notice of Violation issued on 
February 24, 1992; Mr. Clark has not respond to an NRC letter, via 
``CERTIFIED MAIL'' dated July 1, 1993, addressing his previous failure 
to respond to the Notice of Violation; Mr. Clark has refused to dispose 
of the radioactive material; Mr. Clark possesses the radioactive 
material contrary to 10 CFR 30.3, without a valid NRC specific license; 
and Mr. Clark has stated to the NRC on numerous occasions that he wants 
an NRC license (in his own name), but has not applied for such a 
license.
    Improper handling of the gauge can result in an unnecessary 
exposure to radiation. The Atomic Energy Act and the Commission's 
regulations require that material possessed by the Licensee be under a 
regulated system of licensing and inspection. Mr. Clark's possession of 
NRC-licensed material without a valid NRC license, as documented in the 
February 24, 1992 Notice of Violation, and his unwillingness to respond 
to numerous NRC written and verbal communications to apply for an NRC 
license, demonstrate a deliberate disregard for NRC requirements. Mr. 
Clark, by continuing to possess material after being notified of the 
expiration of the License, has demonstrated that he is not willing to 
comply with Commission requirements.
    Given the circumstances surrounding Mr. Clark's possession of the 
byproduct material and his lack of communication with the NRC, I lack 
the requisite reasonable assurance that the health and safety of the 
public will be protected while Mr. Clark remains in possession of the 
radioactive material. Consequently, the public health, safety, and 
interest require the imposition of the requirements set forth in 
Section IV below. Furthermore, pursuant to 10 CFR 2.202, I have 
determined that the significance of Mr. Clark's actions described above 
(specifically, the deliberate possession of licensed material without a 
License, after repeated NRC notification of the need to either obtain a 
license or transfer the material to an authorized recipient) is such 
that 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 at 10 CFR 2.202 and 10 CFR Part 30, It Is Hereby Ordered, 
Effective Immediately, That:
    A. The americium-241 source in Mr. Clark's possession shall be 
transferred to a person authorized to receive and possess the source 
within 45 days of the date of this Order. If Mr. Clark believes he does 
not have sufficient funds to complete the transfer, he must provide, 
within 30 days of this Order, evidence supporting such a claim by 
submitting to the Director, Office of Enforcement, U.S. Nuclear 
Regulatory Commission, Washington, D.C. 20555, (1) an estimate of the 
cost of the transfer and the basis for the estimate, including the 
license number and identity of the person who would perform the 
transfer, (2) written statements from at least two banks stating that 
Mr. Clark could not qualify for a loan to pay for the transfer, (3) 
copies of Federal income tax returns for the years ending 1993, 1992, 
1991, and 1990, for Mr. Clark, and (4) a signed agreement to allow the 
NRC to receive Mr. Clark's credit information from a credit agency. A 
submittal of evidence supporting the lack of sufficient funds does not 
excuse noncompliance with this order.
    B. The americium-241 source shall be tested for leakage by a person 
authorized to perform the test prior to transfer of the source to 
another person, if a leak test has not been performed with the last six 
months prior to transfer.
    C. Mr. Clark continue to maintain safe control over the gauge 
containing the source, by keeping the source in locked storage and not 
allowing any person access to the source until the source is leak 
tested and transferred to a person authorized to receive and possess 
the source in accordance with the provisions of this Order.
    D. Mr. Clark ensure that there is no use of the americium-241 
source, except for performance of the pre-transfer leak test and 
transfer to an authorized recipient.
    E. Unless the source already has been transferred, Mr. Clark shall 
provide a written update within 30 days of receipt of this Order to the 
Regional Administrator, Region I and the Director, Office of 
Enforcement, on Mr. Clark's progress in finding an authorized person to 
receive and possess the source.
    F. Mr. Clark shall notify Dr. Ronald Bellamy, Chief, Nuclear 
Materials Safety Branch, NRC, Region I, by telephone at least two 
working days prior to the date of the transfer of the source so that 
the NRC may, if it elects, observe the transfer of the source to the 
authorized recipient.
    G. Mr. Clark, within seven days following completion of the 
transfer, shall provide to the Regional Administration, Region I: (1) 
confirmation in writing and under oath (NRC Form 314) that the 
americium-241 has been transferred, (2) a copy of the leak test 
performed prior to the transfer, and (3) a copy of the certification 
from the authorized recipient that the source has been received.
    The Regional Administrator, NRC Region I, may, in writing, relax or 
rescind any of the above conditions upon a showing by Mr. Clark of good 
cause.

V

    In accordance with 10 CFR 2.202, Mr. Clark 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. 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 Mr. Clark or other person 
adversely affected relies and the reasons 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: 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, PA, 
19406, and to Mr. Clark if the answer or hearing request is by a person 
other than Mr. Clark. If a person other than Mr. Clark 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 Mr. Clark 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), Mr. Clark, or any other person 
adversely affected by this Order may, in addition to demanding a 
hearing, at the time the answer is filed or sooner, move the presiding 
officer to set aside the immediate effectiveness of the Order on the 
ground 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, the provisions specified 
in Section IV above shall be final 20 days from the date of this Order 
without further order or proceedings. An answer or request for hearing 
shall not stay the immediate effectiveness of this order.

VI

    In addition to issuance of this Order, the Commission requires 
further information from Mr. Clark in order to determine whether the 
Commission can have reasonable assurance that in the future, should Mr. 
Clark perform licensed activities under any other NRC license, Mr. 
Clark will conduct any NRC licensed activity in accordance with NRC 
requirements, and whether enforcement action is warranted against Mr. 
Clark, individually.
    Accordingly, pursuant to section 161c, 161o, 182, and 186 of the 
Atomic Energy Act of 1954, as amended, and the Commission's regulations 
in 10 CFR 2.204 and 10 CFR 30.32(b), you are hereby required to submit 
to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, within 30 days of the date of this 
Order and Demand for Information, a statement in writing, under oath or 
affirmation, of:
    1. Why the NRC should have confidence that you will comply with NRC 
requirements in the event that you perform licensed activities under 
another NRC license.
    2. Why, in light of the facts set forth above, the NRC should not 
issue an Order to you prohibiting you from engaging in NRC-licensed 
activities.
    This information is needed in light of the deliberate violations of 
Commission requirements. Copies of the response to this Demand for 
Information also shall be sent to the Assistant General Counsel for 
Hearings and Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, and to the Regional Administrator, NRC Region I, 
475 Allendale Road, King of Prussia, PA 19406.
    After reviewing your response, the NRC will determine whether 
further action is necessary to ensure compliance with regulatory 
requirements.

    Dated at Rockville, Maryland this 21st day of June 1994.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 94-15940 Filed 6-29-94; 8:45 am]
BILLING CODE 7590-01-M