[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Notices]
[Pages 71509-71511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33021]


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NUCLEAR REGULATORY COMMISSION

[License No. 37-20553-01 (Suspended) Docket No. 030-19405, EA 99-217]


Alfonso DeLeo, Jr., P.O. Box 312, Ardmore, PA 19003; Order 
Modifying Order Suspending License (Effective Immediately) and Order 
Revoking License

I

    Alfonso DeLeo (Mr. DeLeo or licensee) is the holder of suspended 
Byproduct Material License No. 37-20553-01 (license) that was 
originally issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR Part 30 on April 4, 1982. The license 
authorized: (1) Possession and use of cesium-137 and americium-241 
sealed sources (gauges) at temporary jobsites of the licensee anywhere 
in the United States where the Commission maintained jurisdiction for 
regulating the use of licensed material; and (2) storage of the 
licensed material at 141 Golf Hills Road, Havertown, PA. The license 
has an expiration date of March 31, 2004. Licensees of the Commission 
are required to pay annual fees.

II

    Pursuant to 10 CFR 171.16, Mr. DeLeo is required to pay an annual 
fee for the license. In accordance with 10 CFR Part 15, the licensee 
was sent an original invoice, a second invoice, and a final notice 
requesting payment. The final notice of payment due specifically 
informed the licensee that ``non-payment of your fee may result in the 
revocation of your license in accordance with the enforcement 
provisions of the Commission's regulations,'' namely, 10 CFR 171.23. 
The NRC conducted an inspection at Mr. DeLeo's Havertown, PA facility 
on November 16, 1994, at which time he still possessed the

[[Page 71510]]

gauges, and had not paid the annual fees. To date, the annual fee(s) 
listed below have not been paid as required by 10 CFR Part 171.

                                               Delinquent Invoices
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             Invoice date                      Invoice No.          Amount billed             Comment
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1. 8/9/91.............................  AMO2856-91                      $1,400.00  FY 1991 Annual Invoice.
2. 8/24/92............................  AMO2423-92                         400.00  FY 1992 Annual Invoice.
3. 8/21/93............................  AMO2764-93                         400.00  FY 1993 Annual Invoice.
4. 8/20/94............................  AMO2144-94                       2,470.00  FY 1994 Annual Invoice.
5. 7/22/95............................  AMO2094-95                       1,700.00  FY 1995 Annual Invoice.
----------------------------------------------------------------------------------------------------------------

    On February 12, 1996, the NRC issued an Order Suspending License 
(Effective Immediately) to Alfonso DeLeo, Jr., based on the non-payment 
of license fees for fiscal years 1991 through 1995. The Order of 
February 12, 1996, required, among other things, that Alfonso DeLeo, 
Jr. dispose of any licensed material acquired or possessed under the 
authority of License No. 37-20553-01. As of the date of this Order, Mr. 
DeLeo had not complied with the February 12, 1996 Order, in that he has 
not disposed of the subject licensed material.
    During a subsequent inspection by the NRC at Mr. DeLeo's Havertown, 
PA facility on December 5, 1996, the NRC determined that he failed to 
notify the Commission in accordance with 10 CFR 30.36(d)(3) of the 
cessation of principal licensed activities. Specifically, Mr. DeLeo had 
ceased activities prior to August 15, 1994, the regulation's effective 
date. As a result, a Notice of Violation (Notice) was issued on 
December 16, 1996. Mr. DeLeo failed to reply to the Notice within 30 
days of its issuance as required by 10 CFR 2.201. The NRC contacted Mr. 
DeLeo on February 13, 1997, concerning his failure to reply to the 
December 16, 1996 Notice, and he indicated that he would reply to the 
Notice. Mr. DeLeo did not reply to the Notice until March 16, 1998.
    Prior to that reply, the NRC also sent Mr. DeLeo a letter on 
February 24, 1997, describing the Decommissioning Timeliness rule (10 
CFR 30.36), and indicating that the licensed material in his possession 
needed to be transferred to another authorized recipient by October 15, 
1998. The letter further stated that failure to dispose of licensed 
material by that date could result in significant enforcement action, 
including the imposition of monetary civil penalties. Nonetheless, Mr. 
DeLeo did not transfer the gauges. During another inspection of Mr. 
DeLeo's Havertown, PA, facility on March 16, 1998, he was again 
informed that 10 CFR 30.36 required him to transfer licensed material 
to an authorized recipient by October 15, 1998.
    The NRC attempted to contact Mr. DeLeo several times between 
December 30, 1998, and March 10, 1999 by leaving messages on his 
answering machine to determine the status of the licensed material. As 
of April 1, 1999, Mr. DeLeo had not returned the telephone calls. As a 
result, a joint inspection/investigation by the NRC's Division of 
Nuclear Materials Safety and Office of Investigations was conducted on 
April 1, 1999, at his Havertown, PA, facility. That investigation 
disclosed that Mr. DeLeo still retained possession of the gauges. Based 
on the above, including the OI investigation, the NRC concluded that 
Mr. DeLeo was in willful violation of NRC requirements.
    Since Mr. DeLeo had not conducted his activities in full compliance 
with NRC requirements, a written Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was served upon Mr. DeLeo by 
letter dated June 2, 1999. The Notice states the nature of the 
violation, the provision of the NRC's requirements that the Licensee 
had violated, and the amount of the civil penalty proposed for the 
violation.
    Although Mr. Deleo confirmed to the NRC, during a telephone 
conversation on June 18, 1999, that he had received the NRC's June 2, 
1999 letter transmitting the Notice of Violation and Proposed 
Imposition of Civil Penalty, he failed to respond to it and was still 
in possession of the gauges. Therefore, the NRC staff issued an Order 
on August 23, 1999, imposing a $5,500 civil penalty and also proposing 
additional daily penalties in the amount of $500 per day for his 
continued failure to transfer the gauges. Subsequently, the NRC held a 
management meeting with Mr. DeLeo on November 9, 1999 in the Region I 
office to explain the NRC's position and provide Mr. DeLeo an 
opportunity to explain his position. Mr. DeLeo did not agree with the 
NRC's position that he must immediately transfer his licensed material 
to an authorized recipient.

III

    The deliberate failures of the licensee to: (1) Comply with the 
February 12, 1996 Order (suspension of license); (2) pay the annual fee 
as required by Commission regulations; and (3) comply with 10 CFR 30.36 
demonstrate that the licensee is either unwilling or unable to comply 
with Commission requirements. Consequently, I lack the requisite 
reasonable assurance that public health and safety will be protected if 
the licensee were to continue to be in possession of licensed material 
at this time. Therefore, the public health, safety, and interest 
require that the licensee leak test the licensed material prior to 
transfer to an authorized recipient; that the licensee transfer the 
licensed material to an authorized recipient within 30 days as 
described below; and that Byproduct Material License No. 37-20553-01 be 
revoked. Furthermore, pursuant to 10 CFR 2.202, I find that the 
significance and willfulness of the violations described above is such 
that no further notice is required and that the public health, safety 
and interest require that the provisions of Section IV.A. of this Order 
be immediately effective.

IV

    Accordingly, pursuant to sections 81, 161b, 161c, 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 Parts 30, 170, and 
171,
    A. It is hereby ordered, effective immediately, that:
    1. The requirements of Paragraphs A through E of Section III of the 
Order dated February 12, 1996, and attached hereto remain in effect 
except where modified below.
    2. The licensee shall complete a leak test pursuant to Byproduct 
Material License No. 37-20553-01, Condition 12.A., B., C., D., E., F., 
and G. to confirm the absence of leakage and to establish the levels of 
residual radioactive contamination prior to transfer of the gauges to 
an authorized recipient.

[[Page 71511]]

    3. Within 30 days of the date of this Order, the licensee shall 
cause all licensed material in its possession to be transferred to an 
authorized recipient in accordance with 10 CFR 30.41.
    4. After the conditions of Paragraph 3 are met and within 30 days 
of the date of this Order, the licensee shall submit a completed NRC 
Form 314 to the Regional Administrator, NRC Region I, at 475 Allendale 
Road, King of Prussia, Pennsylvania 19406-1415.
    B. It is further ordered that:
    1. Upon a written finding by the Regional Administrator, NRC Region 
I, that no licensed material remains in the licensee's possession and 
that other applicable provisions of 10 CFR 30.36 have been fulfilled, 
Byproduct Material License No. 37-20553-01 is revoked.
    The Director, Office of Enforcement, may relax or rescind, in 
writing, any of the above provisions upon demonstration of good cause 
by the licensee.

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, U.S. Nuclear Regulatory Commission, Washington, D.C. 
20555, and shall include a statement of good cause for the extension. 
The answer may consent to the 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 set forth the matters of fact and law on which the licensee or 
other person adversely affected relies and 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, 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 Materials Litigation and 
Enforcement at the same address; and 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 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, 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.

    Dated at Rockville, Maryland this 13th day of December 1999.

    For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research and State Programs.
[FR Doc. 99-33021 Filed 12-20-99; 8:45 am]
BILLING CODE 7590-01-P