[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]
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