[Federal Register Volume 64, Number 68 (Friday, April 9, 1999)]
[Notices]
[Pages 17427-17428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8871]


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NUCLEAR REGULATORY COMMISSION

[IA 98-066, EA 98-538, Docket No. 150-00019, License No. MD-33-095-01 
(expired)]


Dale Todd and Roof Systems Design, Inc., Bayamon, Puerto Rico 
00961; Order Prohibiting Involvement in NRC Licensed Activities

I

    Mr. Dale Todd is employed as the President of Roof Systems Design, 
Inc. (RSDI). RSDI is a Pennsylvania Corporation, formerly doing 
business in Laurel, Maryland and now doing business in Bayamon, Puerto 
Rico. RSDI (a Maryland Licensee) possessed and used radioactive 
materials at its Laurel, Maryland facility under the authority of 
Maryland License No. MD-33-095-01, Amendment No. 2, issued by the 
Maryland Department of the Environment (MDE), Radioactive Materials and 
Compliance Division (RMCD) on May 31, 1994, pursuant to the Maryland 
Radiation Act, and in reliance on statements and representations made 
by RSDI. RSDI's Maryland license authorized RSDI to receive, acquire, 
possess and transfer, within the State of Maryland, Americium-241 (not 
to exceed 50 millicuries per source) contained in Troxler model 3216 
moisture gauges used to locate areas of high moisture content in roof 
systems. On May 31, 1998, Maryland License No. MD-33-095-01, Amendment 
No. 2, expired.

II

    On April 23, 1998, the Nuclear Regulatory Commission (NRC) was 
notified by MDE/RMCD, that Mr. Todd had moved RSDI equipment and 
operations to the Commonwealth of Puerto Rico, an area within the NRC's 
jurisdiction. An investigation by the NRC Office of Investigations (OI) 
was initiated on May 8, 1998, to determine whether Mr. Todd and RSDI 
were in unauthorized possession of moisture gauges containing byproduct 
material, without a specific or general license issued by the NRC. 
Based on the evidence developed, OI determined that RSDI willfully 
possessed and used Troxler moisture gauges, containing byproduct 
material, in the Commonwealth of Puerto Rico without a specific or 
general license issued by the NRC. Specifically, on May 8, 1998, Mr. 
Todd and RSDI were found to be in possession of four Troxler Model 
Number 3216 moisture gauges in Puerto Rico, each containing 
approximately 40 millicuries of Americium-241 without having obtained 
an NRC license, in violation of 10 CFR 30.3 and 10 CFR 150.20. In 
addition, based on statements Mr. Todd made to OI, the gauges were used 
at job sites in Puerto Rico, including Searle Pharmaceutical in 1992 
and Ft. Buchanan and Intel in Las Piedras in September 1997 without a 
specific or general license issued by the NRC, in violation of 10 CFR 
30.3.
    Mr. Todd acknowledged to OI that he was aware that the jobs in 
Puerto Rico required an NRC license and that one had not been obtained. 
In addition, Mr. Todd told OI that he and RSDI also conducted licensed 
activities in New Jersey, Pennsylvania, and Virginia, areas of NRC 
jurisdiction, without a specific or general NRC license.
    On May 12, 1998, Confirmatory Action Letter (CAL) 2-98-003 was sent 
to Mr. Todd confirming that he agreed to transfer the four RSDI gauges 
to an authorized recipient by June 7, 1998.
    Mr. Todd confirmed that the four moisture gauges were transferred 
to an authorized recipient by letter to Mr. Mark Lesser of the NRC, 
dated June 11, 1998. In addition to the May 12, 1998 CAL, the NRC also 
sent Mr. Todd a December 30, 1998 letter that informed him of the terms 
of the Confirmatory Order and that requested Mr. Todd to inform the NRC 
whether he consented to the issuance of the Order. Mr. Todd informed 
the NRC in a facsimile dated December 31, 1998, that he understood the 
terms of this Order and that he consented to the issuance of the Order; 
however, he expressed reservation concerning the scope of the rights he 
was waiving. By letter dated January 11, 1999, a Confirmatory Order was 
forwarded to Mr. Todd for his signature. Subsequently, on February 18, 
1999, NRC contacted Mr. Todd to discuss the proposed Order, at which 
time he indicated agreement with its provisions and his intent to sign 
and facsimile the Order to the NRC. To date, no response has been 
received from Mr. Todd.

III

    The Commission's regulations in 10 CFR 30.3 specify that, except 
for persons exempt as provided in Parts 30 or 150, no person shall 
manufacture, produce, transfer, receive, acquire, own, possess, or use 
byproduct material except as authorized in a specific or general 
license issued by the NRC. In accordance with 10 CFR 150.20(a), any 
person who holds a specific license from an Agreement State, where the 
licensee maintains an office for directing the licensed activity and 
retaining radiation safety records, is granted an NRC general license 
to conduct the same activity in a non-Agreement State, provided the 
provisions of 10 CFR 150.20(b)(1) have been met. Pursuant to 10 CFR 
150.20(b)(1), persons engaging in such activity must file 4 copies of 
NRC Form-241, ``Report of Proposed Activities in Non-Agreement 
States'', with the Regional Administrator of the appropriate NRC 
regional office. Based on the facts set forth above in Part II, and the 
fact that Mr. Todd and RSDI never filed an application for a specific 
license or obtained a general license under 10 CFR part 150 by filing 
NRC Form 241 and/or maintaining a Maryland office, the NRC has 
concluded that Mr. Todd and RSDI willfully possessed and used Troxler 
moisture gauges, without a specific or general license issued by the 
NRC, in violation of 10 CFR 30.3. Furthermore, based on the facts that 
(1) Mr. Todd told OI that he knew that his and RSDI's activities in 
Puerto Rico required an NRC license and (2) Mr. Todd chose not to 
obtain an NRC license, the NRC has concluded that Mr. Todd and RSDI 
have engaged in deliberate misconduct, in violation of 10 CFR 30.10. 
Both Mr. Todd's and RDSI's past activities raise serious doubt as to 
whether they can be relied upon to comply with NRC requirements in the 
future.
    Mr. Todd's and RDSI's failure to obtain a specific or general 
license resulted in the NRC being uninformed that activities involving 
the use of radioactive materials were being conducted in areas of NRC 
jurisdiction. Because of Mr. Todd's and RSDI's failure to file NRC Form 
241, the NRC

[[Page 17428]]

was denied the opportunity to inspect the licensee's facility and to 
verify that radioactive materials were being safely used and stored. 
Furthermore, the NRC was informed by the State of Maryland that Mr. 
Todd and RSDI committed a similar violation as a Maryland Licensee. 
Specifically, RSDI was issued a civil penalty in 1987 by the State of 
Maryland for the use of radioactive material without a license.
    In view of the foregoing, I lack the requisite reasonable assurance 
that licensed activities can be conducted in compliance with NRC 
requirements and that the health and safety of the public would be 
protected if Mr. Todd or RSDI were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Todd and RSDI be prohibited from 
any involvement in NRC-licensed activities for a period of one year 
from the date of this Order. Additionally, Mr. Todd and RSDI are 
required to notify the NRC of their first involvement in NRC-licensed 
activities following the prohibition period.

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, 10 CFR 30.3, 10 CFR 30.10 and 10 CFR 
150.20, It is hereby ordered, that:
    1. For a period of one (1) year from the date of this Order, Mr. 
Dale Todd and RSDI are prohibited from engaging in or exercising 
control over individuals engaged in NRC-licensed activities. NRC-
licensed activities are those activities which require a specific or 
general license issued by the NRC including, but not limited to, those 
activities of Agreement State licensees conducted pursuant to the 
authority granted by 10 CFR 150.20. This prohibition includes, but is 
not limited to: (1) using licensed materials or conducting licensed 
activities in any capacity within the jurisdiction of the NRC; and (2) 
supervising or directing any licensed activities conducted within the 
jurisdiction of the NRC.
    2. At least five (5) days prior to the first time that Mr. Dale 
Todd and/or RSDI engage in or exercise control over NRC-licensed 
activities, during a period of five (5) years following the one year 
prohibition stated in Section IV.1 above, the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
shall be notified in writing of the name, address, and telephone number 
of the NRC or Agreement State licensee and the location where the 
licensed activities will be performed. The notice shall be accompanied 
by a statement, under oath or affirmation, that Mr. Dale Todd and/or 
RSDI understand the applicable NRC requirements and are committed to 
compliance with NRC requirements. Mr. Dale Todd and/or RSDI also should 
provide a basis as to why the Commission should have confidence that 
Mr. Dale Todd and/or RSDI will now comply with applicable NRC 
requirements.
    The Director, Office of Enforcement, U. S. Nuclear Regulatory 
Commission, may relax or rescind, in writing, any of the above 
conditions upon a showing by Mr. Dale Todd and/or RSDI of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Todd and RSDI must, and any 
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 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, DC 20555, 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 Mr. Todd and RSDI or other persons 
adversely affected relies and the reasons as to why the Order should 
not have been issued. Any answer or request for a hearing shall be 
submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: 
Chief, Rulemakings and Adjudications Staff, Washington, DC 20555. 
Copies also shall be sent to the Director, Office of Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555, to the Deputy 
Assistant General Counsel for Enforcement at the same address, and to 
the Regional Administrator, NRC Region II, Atlanta Federal Center, 61 
Forsyth Street, S.W., Suite 23T85, Atlanta, Georgia 30303-3415 and to 
Mr. Todd, if the answer or hearing request is by a person other than 
Mr. Todd. If a person other than Mr. Todd 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 Mr. Todd or RSDI 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.
    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.

    Dated this 31st day of March 1999.

    For the Nuclear Regulatory Commission.
Malcolm R. Knapp,
Deputy Executive Director for Regulatory Effectiveness.
[FR Doc. 99-8871 Filed 4-8-99; 8:45 am]
BILLING CODE 7590-01-P