[Federal Register Volume 59, Number 221 (Thursday, November 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28404]


[[Page Unknown]]

[Federal Register: November 17, 1994]


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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-29343, License No. 29-19310-02 (Expired), EA No. 94-
179]

 

Environmental Testing Laboratories, Inc. (ETL) Forked River, NJ; 
Order To Cease and Desist Use and Possession of Regulated Byproduct 
Material

    Environmental Testing Laboratories (ETL), Inc. (Licensee), is the 
holder of expired Byproduct Materials License No. 29-19310-02 (License) 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR Part 30 on July 31, 1986. The License authorized the 
possession and use of nickel-63 in plated sources or foils, not to 
exceed 15 millicuries per foil, in accordance with the conditions 
specified therein. The License expired on August 31, 1991.

II

    The byproduct material has been transferred from the licensed 
address of 412 Route 9, Lanoka Harbor, New Jersey, 08834, to 512 Route 
9, Forked River, New Jersey 08731, where it is currently stored. 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. Walter Holm, Jr., the Radiation Safety 
Officer, stated ETL's intentions in a letter dated May 15, 1991, to 
terminate the license, as of this date, ETL has not transferred the 
licensed material to an authorized recipient, nor has ETL applied for 
an NRC license.
    On January 14, 1993, the NRC, Region I, issued a Notice of 
Violation (NOV) to ETL, mailed to Mr. Walter Holm, for possession of 
material without a valid specific license. The letter forwarding the 
NOV directed the Licensee to place the licensed material in secure 
storage, not to use the material, and promptly transfer the licensed 
material to a lawful recipient. The Licensee has not responded to the 
Notice of Violation.
    In addition, in a June 7, 1994 letter, the NRC again reminded ETL 
of the need to respond to the NRC Notice of Violation. ETL did not 
respond to a telephone message left on October 26, 1994. To date, ETL 
still possesses nickel-63 sealed sources without an NRC license and 
without applying for such a license.

III

    ETL 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. Based on the above, ETL 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.
    Furthermore, based on the above, notwithstanding the several 
notices concerning the above from the NRC and the corresponding 
opportunities to achieve compliance with applicable requirements, ETL 
has deliberately violated NRC requirements by possessing nickel-63 
sealed sources without a license. This conclusion is based on the facts 
that ETL never filed a renewal application before the License issued to 
ETL expired on August 31, 1991, as required by 10 CFR 30.37; ETL has 
not responded to the NRC Notice of Violation issued on January 14, 
1993; ETL has not responded to an NRC letter, dated June 7, 1994, 
addressing its previous failure to respond to the Notice of Violation; 
ETL has refused to dispose of the radioactive material; and ETL 
possesses the radioactive material contrary to 10 CFR 30.3; without a 
valid NRC specific license.
    Improper handling of the nickel-63 sealed sources can result in an 
unnecessary exposure to radiation. The Atomic Energy Act and the 
Commission's regulations require that possession of licensed material 
be under a regulated system of licensing and inspection. ETL's 
possession of NRC-licensed material without a valid NRC license, as 
documented in the January 14, 1993, Notice of Violation, 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 ETL's possession of the 
byproduct material and the 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 ETL 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, IT IS HEREBY ORDERED THAT, ETL shall:
    A. Immediately cease and desist from any further use of byproduct 
material now in its possession.
    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 the nickel-63 byproduct material within 30 days to a 
person authorized to receive and possess the material. If ETL does not 
have sufficient funds to complete the transfer, ETL 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, D.C. 20555: (1) An estimate of the 
cost of the transfer and the basis for the estimate, including the 
license numbers and identifies of the persons who have provided 
estimates of the cost of the transfer; (2) written statements from at 
least two banks stating that ETL does not qualify for a loan to pay for 
the transfer; (3) copies of the Federal income tax returns of ETL for 
the years ending 1993, 1992, 1991, and 1990; and (4) a signed statement 
agreeing to allow the NRC to receive credit information on ETL from a 
credit agency. In addition, if ETL has not been able to find a person 
who will accept the byproduct material, ETL 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 nickel-63 
byproduct material has 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(c)(1)(v), 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 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, D.C. 
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 10th 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. 94-28404 Filed 11-16-94; 8:45 am]
BILLING CODE 7590-01-M