[Federal Register Volume 61, Number 68 (Monday, April 8, 1996)]
[Notices]
[Pages 15526-15529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8598]



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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 030-10859, 030-06198; License Nos. 37-14600-01, 37-09135-
01; EA 96-009]

Applied Health Physics, Inc., Bethel Park, PA; Confirmatory Order 
(Effective Immediately)

I

    Applied Health Physics, Inc. (Licensee) is the holder of NRC 
License Nos. 37-14600-01 and 37-09135-01 issued by the Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30. 
The licensee's facility is located on the Licensee's site in Bethel 
Park, Pennsylvania. License No. 37-14600-01 currently authorizes the 
receipt, possession, and storage of pre-packaged wastes. License No. 
37-09135-01 currently authorizes leak tests services, analysis of 
samples, calibrations of instruments, and fixed gauge services. 
Overall, the Licensee provides services to customers in a variety of 
areas such as radioactive waste brokerage, surveys, leak tests and 
analysis, calibration of

[[Page 15527]]

instrumentation, sample analysis, training, and consultation. License 
No. 37-14600-01 initially was issued on September 4, 1975, and is due 
to expire on January 30, 1997. License No. 37-09135-01 was initially 
issued on February 19, 1963, and is due to expire on October 31, 2000.

II

    On May 19, 1994, representatives from NRC Region I spoke with 
Licensee representatives concerning the need for financial assurance. 
The NRC representatives discussed options with Licensee representatives 
with respect to meeting the financial assurance requirements. The 
result of the conversation was that the Licensee decided to reduce the 
radioactive material possession limits on License No. 37-14600-01 such 
that financial assurance would not be required.
    In a letter dated May 24, 1994, the Licensee requested a license 
amendment to lower possession limits, add specifically listed 
radionuclides for its waste broker License No. 37-14600-01, and limit 
possession to sealed sources only for its calibration service License 
No. 37-09135-01. The NRC approved these amendments on June 28, 1994.
    On March 9, 1995, the Licensee voluntarily filed for bankruptcy 
under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy 
Court for the Western District of Pennsylvania. On March 20 and 22, 
1995, respectively, the NRC Office of the Controller filed for proofs 
of claim for 1994 license and Freedom of Information Act fees owed by 
the Licensee to the NRC. (On November 14 and 15, 1995, respectively, 
the NRC filed an additional proof of claim for 1995 license fees owed 
and amended the proof of claim previously filed for the 1994 fees.)
    During a routine safety inspection conducted on April 18-19, 1995, 
the NRC identified seven violations as described in the Notice of 
Violation (Notice) dated May 22, 1995. One of the seven violations 
cited the Licensee for holding radioactive waste for more than 180 
days, contrary to the requirements of Condition 14 of License No. 37-
14600-01.
    On May 26, 1995, four days after the issuance of the Notice, the 
Licensee took possession of two drums of radioactive waste. One drum 
contained approximately 23 microcuries of unsealed americium-241, which 
is not authorized on its waste broker license. The authorization for 
unsealed americium-241 was deleted from License No. 37-14600-01 in 
accordance with the Licensee's May 24, 1994 request.
    In a letter dated June 26, 1995, the Licensee responded to the 
Notice and indicated that the Licensee's president would provide the 
management commitment and oversight needed to maintain compliance with 
conditions of both licenses. This response indicated that procedures 
would be developed to provide for immediate review of received material 
to determine acceptability for storage at the Licensee's facility.
    On October 25, 1995, the date that the Licensee was to file a 
Chapter 11 disclosure statement and plan, the Chapter 11 case was 
converted to a Chapter 7 case. The conversion occurred due to the 
Licensee's inability to file the disclosure statement and plan by the 
October 25, 1995 deadline.
    Due to the NRC's concern about the financial status of the Licensee 
and the possibility of abandoned radioactive material at the Bethel 
Park, Pennsylvania, facility, the NRC issued a Confirmatory Action 
Letter (CAL) to the Licensee on November 8, 1995, confirming the 
Licensee's commitment to:
    (1) Cease acquiring any additional radioactive waste from 
customers;
    (2) provide an up-to-date inventory of the radioactive material in 
its possession at the Bethel Park facility to the NRC by November 9, 
1995;
    (3) provide a schedule of any shipments of radioactive waste 
planned for 1995; and
    (4) provide a copy of the Licensee's plans over the next six months 
with regard to the bankruptcy proceedings.
    The Licensee responded in a letter dated November 9, 1995, that 
included a current inventory of radioactive waste held at the 
Licensee's Bethel Park, Pennsylvania, facility, a schedule of shipments 
planned for 1995, a commitment not to accept any additional waste, and 
a commitment to inform the NRC, upon notification from the Licensee's 
attorney, of the Licensee's financial status.
    The NRC conducted an inspection at the site on November 15, 1995, 
and reviewed the storage and security of licensed material, inventory, 
and storage of radioactive waste. As a result of this inspection, NRC 
found three apparent violations, as follows:
    (1) failure to limit possession of byproduct material (unsealed Am-
241) to those isotopes listed on the license, as required by 10 CFR 
30.3;
    (2) failure to limit possession of special nuclear material (Pu-
239) to those authorized by the service license, as required by 10 CFR 
70.19; and
    (3) failure to limit possession of licensed material waste to a 
period not to exceed 180 days (May 26, 1995 acquisition of 2 drums), as 
required by License Condition No. 14 of License No. 37-14600-01, a 
repeat violation.
    The Licensee met with the NRC staff during a predecisional 
enforcement conference at the NRC Region I office on January 30, 1996, 
to review the circumstances that led to these violations. During the 
enforcement conference, the Licensee proposed corrective actions that 
included: (1) Establishing a separate bank account for payment of costs 
incurred due to waste disposal; (2) setting a disposal date of 100 days 
from the date of receipt of waste to assure that the waste is disposed 
prior to 180 days; (3) checking the Licensee's license prior to 
obtaining waste in order to assure compliance; and (4) hiring an 
Assistant to the President who will streamline procedures, maintain 
control of day-to-day business activities, and ensure that the RSO has 
the necessary resources to maintain compliance.
    The NRC requested the Licensee to submit, by February 15, 1996, a 
more detailed, thorough plan describing the Licensee's plans for 
achieving compliance with all license requirements. A plan was received 
from the Licensee on February 15, 1996, but additional information was 
requested by the NRC staff.

III

    By a letter dated February 19, 1996, and facsimiles dated February 
23 and March 15, 21, and 25, 1996, the Licensee agreed that: (1) With 
the exception of the radioactive waste in containers W-1995-010, and W-
1995-050 through W-1995-062, the Licensee will achieve compliance with 
Condition 14 of License No. 37-14600-01 by April 30, 1996; (2) with 
respect to the radioactive waste in containers W-1995-010, W-1995-050 
through W-1995-062, S-1995-002, and S-1995-007 through S-1995-010, the 
Licensee will achieve compliance with Condition 14 of License No. 37-
14600-01 by December 31, 1996; and (3) the Licensee will establish a 
separate bank account for radioactive waste disposal and use the 
account exclusively for the deposit of payments made by the Licensee's 
customers for the disposal of NRC-licensed radioactive waste materials.
    I find that the Licensee's commitments as set forth in its letter 
of February 19, 1996 and facsimiles dated February 23 and March 15, 21, 
and 25, 1996, are acceptable and necessary and conclude that with these 
commitments the public health and safety are

[[Page 15528]]
reasonably assured. In view of the foregoing, I have determined that 
the public health and safety require that the Licensee's commitments in 
its February 19, 1996 letter and February 23 and March 15, 21, and 25, 
1996 facsimiles be confirmed by this Order. The Licensee has agreed to 
this action in a telephone call on March 28, 1996, between James H. 
Joyner, Technical Assistant to Director, Division of Nuclear Materials 
Safety, U.S.N.R.C., Region I, and Daniel Haber, Assistant to the 
President, Applied Health Physics. Pursuant to 10 CFR 2.202, I also 
have determined, based on the Licensee's consent and on the 
significance of the violations described above, that the public health 
and safety require this Order to 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:
    A. Authorization for the receipt of pre-packaged radioactive waste 
at the Bethel Park facility be suspended.
    B. Radioactive waste be disposed of as specified in the Licensee's 
disposal schedule dated February 19, 1996, as amended by the Licensee's 
facsimiles dated February 23 and March 15, 21, and 25, 1996. With the 
exception of the radioactive waste in containers W-1995-010, and W-
1995-050 through W-1995-062, S-1995-002, and S-1995-007 through S-1995-
010, compliance with Condition 14 of License No. 37-14600-01 must be 
achieved by April 30, 1996.
    C. Radioactive waste in containers W-1995-010, and W-1995-050 
through W-1995-062, S-1995-002, and S-1995-007 through S-1995-010, be 
disposed of by December 31, 1996.
    D. An escrow account be established in accordance with this Order 
within 30 days of the date of this Order to provide financial assurance 
for waste handling and disposal of the Licensee's waste. For the 
purposes of this paragraph, an escrow account is an account where money 
is put into the custody of a third party for delivery to a grantee only 
after the fulfillment of specified conditions. The escrow agent shall 
be provided a copy of this Order.
    E. The NRC be informed of the name, address, and location of the 
escrow agent within 72 hours of the Licensee's opening of the escrow 
account. Such escrow account information as well as any other 
information required by this Order shall be submitted to the Director, 
Division of Nuclear Materials Safety, NRC Region I, 475 Allendale Road, 
King of Prussia, Pennsylvania 19406.
    F. All revenues coming from customers for waste brokerage required 
to pay for the direct costs of transportation, permits, disposal, and a 
10% contingency fee will be delivered into the escrow account 
established under Paragraph D above within 5 business days and will 
remain in this escrow account until one of the following three 
conditions has been satisfied:
    1. the Licensee formally notifies the NRC, by telephone and 
facsimile, of the planned withdrawal of funds for the purpose of waste 
handling or disposal at least 5 business days prior to withdrawal of 
funds and the NRC has not provided within this time period an objection 
to the dispersal of the funds; or
    2. the escrow agent has been notified by the NRC, in writing, that 
the Licensee has defaulted on its obligation to carry out waste 
handling and disposal for the Bethel Park, Pennsylvania, facility; or
    3. the escrow account has been terminated by joint notice, in 
writing, from the Licensee and NRC.
    Upon the escrow agent receiving written notification from the NRC 
of the Licensee's default, the escrow agent shall make payments from 
the escrow account as the NRC shall direct, in writing, to provide for 
payment of the costs of the required waste handling and disposal 
activities covered by this agreement.
    G. The NRC be provided with monthly bank account statements 
pertaining to the escrow account.
    If personal privacy or proprietary information is included in any 
submittal required by this Order, the Licensee shall provide a 
bracketed copy that identifies the information that should be protected 
and a redacted copy that deletes such information. If the Licensee 
requests withholding of such material, the Licensee must specifically 
identify the portions that it seeks to have withheld and provide in 
detail the bases for its claim of withholding (e.g., explain why the 
disclosure of information will create an unwarranted invasion of 
personal privacy or provide the information required by 10 CFR 2.790(b) 
to support a request for withholding confidential commercial or 
financial information).
    The Regional Administrator, Region I, may relax or rescind, in 
writing, any of the above conditions upon a showing by the Licensee of 
good cause.

V

    Any person adversely affected by this Confirmatory Order, other 
than the Licensee, may request a hearing within 20 days of its 
issuance. 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, 
U.S. Nuclear Regulatory Commission Washington, D.C. 20555, and include 
a statement of good cause for the extension. Any request for a hearing 
shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Chief, Docketing and Service Section, Washington, 
D.C. 20555. Copies also shall be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 
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, and to the 
Licensee. If such a person requests a hearing, that person shall set 
forth with particularity the manner in which his 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 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 Confirmatory Order should be 
sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), any person other than the 
Licensee 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, 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 Section IV 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.

    For the Nuclear Regulatory Commission.


[[Page 15529]]

    Dated at Rockville, Maryland this 29th day of March 1996.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 96-8598 Filed 4-5-96; 8:45 am]
BILLING CODE 7590-01-P