[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Notices]
[Pages 52228-52229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24764]



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NUCLEAR REGULATORY COMMISSION
[Docket No. 30-33725; License No. 37-28442-02 EA 95-183]


J&L Testing Company, Inc., Canonsburg, PA; Order Suspending 
License (Effective Immediately)

I

    J&L Testing Company, Inc., (Licensee or JLT) is the holder of 
Byproduct Nuclear Material License No. 37-28442-02 issued by the 
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR 
Part 30. The license authorizes possession and use of Cesium-137 and 
Americium-241 in sealed sources. The license, originally issued on 
February 7, 1995, was amended on August 22, 1995, and is due to expire 
on February 29, 2000.

II

    J&L Engineering, Inc., (JLE) a corporation located at the same 
address and using the same telephone and facsimile numbers as the 
Licensee, held license No. 37-28442-01 for the same three gauges for 
which the Licensee is now licensed. John Boschuk, the president of JLE, 
is the co-owner, along with Lourdes T. Boschuk, of JLT. JLE's license 
was revoked on August 30, 1993, for non-payment of fees and JLE was 
ordered, in part, to cease use of byproduct material, dispose of the 
byproduct material, and notify the NRC of the disposition within 30 
days of that order. On October 5, 1994, a Notice of Violation (Notice) 
was issued to JLE for possession of licensed material without a valid 
NRC license, as its NRC license had been revoked. On October 11, 1994, 
John Boschuk responded to the Notice, stating, among other things, that 
the ``* * *equipment [3-Troxler Nuclear Density gauges] has not been 
used for over 2 years and has not left the storage area in our 
office.''
    On November 21, 1994, JLT submitted an application for a license. 
The November 21, 1994 cover letter for the application, signed by 
Lourdes T. Boschuk, President of JLT, stated the following:

    * * * submitted herein is our application to restore our expired 
license to store and operate three (3) Troxler Nuclear Density 
Gauges (sic). We understand our license was revoked on August 30, 
1993. Since that date, these units were not removed from storage nor 
used in anyway (sic).

    Relying on the application and the statement concerning use of the 
gauges after the time the JLE license was revoked, the NRC issued a new 
license (License No. 37-28442-02) to JLT on February 7, 1995.
    On August 1 and 3, 1995, the NRC conducted a routine safety 
inspection of activities authorized by License No. 37-28442-02 at the 
Licensee's facility in Canonsburg, Pennsylvania. During the inspection, 
an NRC inspector determined, based on a review of utilization logs, 
that one of the gauges, which JLE and the Licensee separately had 
stated in writing to the NRC were in storage, had been used on 
September 1 and 2, 1994 (at a temporary jobsite at the S. Hill Village 
Sears project), by either JLE or JLT (when neither possessed an NRC 
license). The use of this gauge without a valid NRC license was in 
violation of 10 CFR 30.3, which prohibits use of byproduct material 
without a valid license from the NRC. In addition to this violation, 
the statements by Ms. Boschuk, in her November 21, 1994 letter to the 
NRC, and by Mr. Boschuk, in his October 11, 1994 letter to the NRC, 
were not accurate and, therefore, constituted a violation of 10 CFR 
30.9.
    During the August 1995 inspection three additional violations of 
NRC requirements were identified. These violations involved the failure 
to perform leak tests of the devices (gauges) at the required 6-month 
intervals as required by Condition 12 of the license, the failure to 
have an approved Radiation Safety Officer (RSO) (the RSO listed on the 
license terminated employment on May 26, 1995) as required by License 
Condition 11A, and the failure to perform inventories of the gauges at 
the required 6-month intervals as required by Condition 14 of the 
license. By letter dated September 11, 1995, the Licensee's president 
stated that the facts of these violations were correct.
    A predecisional enforcement conference was held with the Licensee 
on September 15, 1995, to discuss the five violations identified during 
the August 1995 inspection. At the conference JLT's president admitted 
all five violations but offered no explanations for why the material 
had been used notwithstanding the revocation of JLE's license or for 
the inaccurate statements made to the NRC.
    In addition, based on a September 22, 1995, letter from the State 
of New York to JLT, it appears that JLT had not requested or obtained 
reciprocity for use of radioactive materials as required by regulations 
of the State of New York. JLT also appears to have provided false 
statements to the New York State Department of Labor concerning use of 
radioactive material in New York State.

III

    Although the NRC has initiated an investigation into these 
violations, based on the above and on information developed to date, 
the NRC concludes that the Licensee violated NRC requirements by: (1) 
providing inaccurate information to the Commission, a violation of 10 
CFR 30.9; (2) using and possessing licensed material without a valid 
NRC license, a violation of 10 CFR 30.3; (3) not performing leak tests 
of the gauges at the required 6-month intervals, a violation of License 
Condition 12; (4) not having an approved Radiation Safety Officer 
(RSO), a violation of License Condition 11A; and (5) not performing 
inventories of the gauges at the required 6-month intervals, a 
violation of License Condition 14.
    The Atomic Energy Act of 1954, as amended (Act), limits possession 
and use of byproduct material to those who possess a valid NRC license. 
In this case, the Licensee's use of the gauge without a license is a 
significant regulatory concern, particularly in view of the inaccurate 
information submitted to the Commission in response to the Notice 
(JLE's October 11, 1994 letter) and in support of an NRC license 
application (JLT's November 21, 1994 letter). Such inaccurate 
information was material and influenced the NRC's decision to grant the 
Licensee an NRC license. The NRC's concern is further heightened given 
the potential safety significance of the other violations - failure to 
have an approved RSO, failure to perform required leak tests of the 
gauges, and failure to perform periodic inventories of the gauges.
    While the investigation is ongoing, the NRC has concluded based 
upon the information developed to date that the Licensee, through its 
co-owners, who 

[[Page 52229]]
knew that JLE's license had been revoked, knew that the NRC had 
requested a formal response to a Notice of Violation, and knew it was 
submitting information to influence the NRC to grant it a new license, 
provided inaccurate information in response to a Notice of Violation 
and in obtaining a license from the Commission. In light of the above 
and regulatory significance of the submittals, the staff concludes that 
the submittal of this false information, if not deliberate, was in 
careless disregard of Commission requirements. Further, based on the 
correspondence and co-ownership of JLE and the JLT, the NRC concludes 
that Mr. and Ms. Boschuk, co-owners of the JLT, are responsible for 
compliance with NRC requirements.
    The NRC must be able to rely on the Licensee and its employees to 
comply with NRC requirements, including the requirement to provide 
information that is complete and accurate in all material respects. The 
Licensee, through its representatives, has demonstrated an 
unwillingness or inability to comply with NRC requirements. The 
Licensee's misrepresentations to the NRC, as well as its actions in 
violating other NRC requirements, have raised serious doubt as to 
whether it can be relied upon in the future to provide complete and 
accurate information to the NRC or to comply with NRC requirements.
    Consequently, I lack the requisite reasonable assurance that the 
Licensee's current operations can be conducted under License No. 37-
26442-02 in compliance with the Commission's requirements and that the 
health and safety of the public, including the Licensee's employees, 
will be protected if the Licensee is permitted to conduct licensed 
activities at this time. Therefore, the public health, safety, and 
interest require that License No. 37-26442-02 be suspended, with the 
exception of certain requirements enumerated in Section IV below 
pending the completion of the investigation. Furthermore, pursuant to 
10 CFR 2.202, I find that in light of the willfulness of the Licensee's 
conduct, 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 in 10 CFR 2.202 and 10 CFR Part 30, It is hereby ordered, 
effective immediately, that License No. 37-28442-02 is suspended as 
follows:
    Pending further investigation and Order by the NRC:
    A. All NRC-licensed material in the Licensee's possession shall be 
placed in locked storage.
    B. The Licensee shall suspend all activities under its license to 
use or transfer licensed material. The Licensee shall provide prior 
notice to the NRC, Region I before transferring the sources. All other 
requirements of the license remain in effect.
    C. The Licensee shall not receive any NRC-licensed material while 
this Order is in effect.
    D. All records related to licensed activities must be maintained in 
their original form and must not be removed or altered in any way.
    The Regional Administrator, Region I, may, in writing, relax or 
rescind any of the above conditions upon demonstration by the Licensee 
of good cause.

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, 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 shall set forth the matters of fact and law on which the Licensee 
or other person adversely affected relies and the reasons why the Order 
should not have been issued. Any answer or request for 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, Pennsylvania 19406-1415, and to the Licensee, if the answer or 
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 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 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.
    Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any other 
person adversely affected by this Order, may, in addition to demanding 
a hearing, at the same time the answer is filed or sooner, move the 
presiding officer to set aside the immediate effectiveness of the Order 
on the grounds 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, 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 Part IV of this Order shall be final when the extension 
expires if a hearing request has not been received. An answer or a 
request for hearing shall not stay the immediate effectiveness of this 
order.

    Dated at Rockville, Maryland this 27th day of September 1995.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 95-24764 Filed 10-4-95; 8:45 am]
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