[Federal Register Volume 60, Number 62 (Friday, March 31, 1995)]
[Notices]
[Pages 16681-16683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7921]



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NUCLEAR REGULATORY COMMISSION


High-Way Engineering & Survey Co. et al; Order

    In the Matter of High-Way Engineering & Survey Co. and Art High, 
dba High-Way Engineering & Survey Co.; Docket No. 030-32271, License 
No. IDA-234 (Expired) EA No. 95-024.

Order to Cease and Desist Use and Possession of Regulated Byproduct 
Material

I

    High-Way Engineering & Survey Co. (Licensee), is the holder of 
expired Byproduct Materials License No. IDA-234 (License) which was 
issued by the State of Idaho and subsequently became a Nuclear 
Regulatory Commission (NRC or Commission) license on April 26, 
[[Page 16682]] 1991, when the State of Idaho discontinued its 
regulation of radioactive materials. Mr. Art High (owner) is the 
president of the Licensee. The License authorized the possession and 
use of 10 millicuries of cesium-137 and 50 millicuries of americium-
241:beryllium in sealed sources in gauges. The License expired on June 
30, 1991.

II

    On January 24, 1995, the Licensee informed the NRC that it still 
has a Campbell-Pacific nuclear gauge in its possession, which is 
currently stored in a locked storage shed on the Licensee's property 
near Bonners Ferry, Idaho. The Licensee neither submitted an 
application for renewal of the License prior to its expiration on June 
30, 1991, as required by 10 CFR 30.37 nor notified the Commission, in 
writing under 10 CFR 30.36, of a decision not to renew the License. Mr. 
Art High, the owner and Radiation Safety Officer, stated the Licensee's 
intention to terminate the License in telephone conversations on 
February 27 and March 23, 1992, and again on January 19, 1995. As of 
the date of this order, the Licensee has neither transferred the 
licensed material to an authorized recipient nor applied for an NRC 
license.
    The Licensee was notified of the pending expiration of its License 
in telephone conversations with the NRC Region IV Office staff prior to 
the License expiration on June 30, 1991. The NRC also corresponded with 
the Licensee concerning the status of its NRC license. Specifically, an 
NRC letter dated February 28, 1992, reiterated the Licensee's stated 
intent to divest itself of the Campbell-Pacific Nuclear Model MC-3 
series moisture density gauge and requested that by March 20, 1992, the 
Licensee transfer all licensable material to a properly authorized 
recipient and provide a completed NRC Form 314 to assure that the 
transfer has been completed. A second NRC letter dated March 25, 1992, 
again reiterated the Licensee's intent to divest itself of the gauge 
and asserted the basis for the NRC's authority to license byproduct 
materials and to charge fees. The Licensee also stated its intent 
during a May 4, 1992 telephone conversation with the NRC to either 
transfer the byproduct material to another licensee or become properly 
licensed.
    On March 17, 1994, a special, unannounced inspection was conducted 
by the NRC. The results of the inspection were documented in an April 
15, 1994 letter. During the inspection, the Licensee stated that it 
possessed one gauge which was maintained in locked storage and that it 
planned to sell the gauge and terminate the License.
    During a January 19, 1995 telephone conversation, the Licensee 
stated that the reasons it had not divested itself of the gauge was 
that it had been unable to sell the gauge and that the manufacturer 
wanted a significant amount of money to take possession of the gauge. 
On January 24, 1995, the Licensee was again contacted by telephone and, 
despite being told that the gauge manufacturer would take possession of 
the gauge for no charge, the Licensee refused to transfer it.

III

    The Licensee remains in possession of NRC-licensed byproduct 
material with an expired NRC license. Possession of such material is 
prohibited. At the time the License expired, 10 CFR 30.36(c) required 
NRC licensees, in the absence of a timely request for license renewal, 
to terminate licensed activities and to properly dispose of licensed 
material on or before the expiration date of the license. The Licensee 
has violated this requirement by continuing to possess a Campbell-
Pacific Nuclear Model MC-3 series moisture density gauge after its 
License expired on June 30, 1991.
    Improper handling of the cesium-137 and americium-241:beryllium 
sealed sources can result in an unnecessary exposure to radiation. The 
Atomic Energy Act and the Commission's regulations require that 
possession of NRC-licensed material be under a regulated system of 
licensing and inspection. The Licensee's possession of NRC-licensed 
material without a valid NRC license 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 the Licensee's possession of 
the byproduct material and its 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 the Licensee remains 
in possession of the radioactive material without the required NRC 
license.

IV

    Accordingly, in accordance with Section 8, 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 High-Way Engineering & Survey Co. and 
Mr. Art High, dba High-Way Engineering & Survey Co. shall:
    A. Immediately cease and desist from any further use of byproduct 
material now in their possession, with the exception that sealed 
source(s) containing cesium-137 or americium-241:beryllium 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 the 
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 and the testing required 
by Paragraph A, 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 in their possession within 30 
days to a person authorized to receive and possess the material. If the 
Licensee does not have sufficient funds to complete the transfer, the 
Licensee 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 neither Art High, nor 
High-Way Engineering & Survey Co., qualify for a loan to pay for the 
transfer; (3) copies of the Federal income tax returns of Art High, and 
High-Way Engineering & Survey Co., for the years 1993, 1992, 1991, and 
1990: and (4) a signed statement agreeing to allow the NRC to receive 
credit information on Art High and High-Way Engineering & Survey Co., 
from a credit agency. In addition, if the Licensee has not been able to 
find an authorized person who will accept the byproduct material, the 
Licensee 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 to the date of the transfer of the 
byproduct [[Page 16683]] material, notify Dr. D. Blair Spitzberg, 
Chief, Nuclear Materials Licensing Branch, NRC, Region IV, by telephone 
(817-860-8191) 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 IV, in writing, under oath or 
affirmation: (1) Confirmation on NRC Form 314, as required by 10 CFR 
30.36(c) at the time the License expired, that the cesium-137 and 
americium-241:beryllim byproduct material have 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, as required by the 
regulation at the time the License expired, 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 IV, 611 Ryan Plaza Dr., Suite 400, Arlington, 
Texas 76011-8064, 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 24th day of March 1995.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 95-7921 Filed 3-30-95; 8:45 am]
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