[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Notices]
[Pages 19529-19532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10328]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 30-33725; License No. 37-28442-02; EAs 96-110]


J&L Testing Company, Inc., Canonsburg, Pennsylvania; Order 
Revoking License

I

    J&L Testing Company, Inc., (Licensee or JLT) is the holder of 
Byproduct Nuclear Material License No. 37-28442-02 (License) issued by 
the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 
CFR Part 30. The License authorizes possession and use of Troxler 
portable nuclear density gauges containing 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. The License was suspended by Order, dated September 27, 1995.

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 portable nuclear 
gauges for which the Licensee is now licensed. John Boschuk, Jr., 
President and owner of JLE, has acted as an agent of and consultant to 
JLT. JLE's license was revoked on August 30, 1993, for non-payment of 
fees. JLE was ordered, among other things, to cease use of byproduct 
material, dispose of the byproduct material, and notify the NRC of the 
disposition within 30 days of that Order. Notwithstanding that Order, 
JLE continued to possess the byproduct material and on October 5, 1994, 
a Notice of Violation (Notice) was issued to JLE for possession of 
licensed material without a valid NRC license. By letter dated October 
11, 1994, Mr. 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 Boschuk, President and owner of JLT and wife of John Boschuk, 
Jr., stated the following:

    * * * Submitted herein is our application to restore our expired 
license to store and operate three (3) Troxler Nuclear Density Gages 
(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 We understand our license was revoked on August 30, 1993.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 that the gauges had 
not been removed from storage since the JLE license was revoked, the 
NRC issued the new License No. 37-28442-02 to JLT on February 7, 1995.
    On August 1 and 3, 1995, the NRC conducted a routine, announced 
safety inspection of activities authorized by the License at JLT's 
facility in Canonsburg, Pennsylvania. During the inspection, an NRC 
inspector determined, based on a review of Licensee's documents, that 
one of the gauges, which JLE and the Licensee separately had stated in 
writing to the NRC were in storage and had not been used since 
revocation of the JLE license, had been transferred on September 2, 
1994, to SE Technologies, Inc., in Bridgeville, Pennsylvania (which 
used the gauge at a temporary jobsite at the S. Hill Village Sears 
project), when neither JLE nor JLT possessed a valid NRC license. As 
stated by the Chief Engineer of SE Technologies, Inc., Mr. Boschuk had 
arranged for the rental, and as stated by a Project Engineer of SE 
Technologies, Inc., Mr. Boschuk had personally transferred the gauge to 
SE Technologies, Inc. JLT stated at a December 18, 1997, enforcement 
conference that uses of the gauge(s) prior to February 7, 1995, and 
after revocation of the JLE license were invoiced by JLT. The transfer 
of the gauge to SE Technologies, Inc. was a

[[Page 19530]]

deliberate violation of 10 CFR 30.3, which prohibits, among other 
things, transfer of byproduct material without a valid license from the 
NRC and a deliberate violation of the order revoking JLE's license in 
violation of 10 CFR 30.10(a). As a consequence, the statement by Ms. 
Boschuk in her November 21, 1994, letter to the NRC, that the gauges 
had not been used and had not left storage at JLT since August 30, 
1993, was inaccurate in violation of 10 CFR 30.9(a), and the statement 
by Mr. Boschuk in his October 11, 1994, letter to the NRC, that the 
gauges had not been used for over two years and had not left storage, 
was deliberately inaccurate in violation of 10 CFR 30.9(a) and 
30.10(a).
    During the NRC's August 1995 inspection, three additional 
violations of NRC requirements were identified. These violations 
involved the failure to perform leak tests of the 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 by the license terminated employment on May 26, 1995), as 
required by License Condition 11A; and the failure to perform physical 
inventories of the gauges at the required 6-month intervals, as 
required by Condition 14 of the license. By letter dated September 11, 
1995, JLT admitted that the cited violations had occurred.
    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 explanation for why the material 
had been used notwithstanding the revocation of the JLE license and 
JLT's lack of a license.
    Based upon the above, the NRC concluded that JLT's submission of 
materially inaccurate information in its license application, and JLE's 
submission of materially inaccurate information in response to a Notice 
of Violation, were, if not deliberate, in careless disregard of 
Commission requirements. These violations, combined with the additional 
violations identified during the inspection, caused the NRC to conclude 
that the Licensee was unwilling or unable to comply with NRC 
requirements and that the requisite reasonable assurance that the 
Licensee's operations could be conducted under License No. 37-28442-02 
in compliance with the Commission's requirements was lacking, such that 
the health and safety of the public, including the Licensee's 
employees, would not be protected if the Licensee were permitted to 
conduct licensed activities at that time. Therefore, in the interest of 
public health and safety, the License was suspended, effective 
immediately, on September 27, 1995, pending completion of an 
investigation by the NRC Office of Investigations.

III

    Subsequently, the NRC Office of Investigations completed its 
investigation of JLT. The NRC staff has determined that, in addition to 
the violations cited above, JLT committed a number of other violations 
of NRC regulatory requirements, as set forth below.

A. Materially Inaccurate Statements Made to NRC

    (1) A letter to the NRC dated September 11, 1995, signed by Lourdes 
Boschuk and reviewed and edited by John Boschuk, Jr., stated that the 
Troxler gauge that was missing at the time of the August 1995 NRC 
inspection was in Watertown, New York, and was returned to JLT the next 
day. This was a deliberately inaccurate statement in violation of 10 
CFR 30.9(a) and 30.10(a). In fact, according to the Chief Engineer of 
SE Technologies, Inc., Mr. Boschuk personally transferred the gauge to 
SE Technologies, Inc. in July 1995, and requested return of the gauge 
on August 14 or 15, 1995. In fact, the gauge was not returned to JLT 
until August 17, 1995. In addition, the September 11, 1995, letter 
represented that since the August 1995 NRC inspection, all three 
Troxler gauges had been in a locked storage cabinet at JLT's premises 
and would remain there until the apparent violations identified in the 
NRC's Inspection Report were resolved. This inaccurate statement in 
violation of 10 CFR 30.9(a) was made with careless disregard for the 
facts. In fact, one of the gauges had been transferred to Cashin 
Associates, P.C., Hauppauge, New York, on September 6, 1995, and was 
not returned to JLT until September 19 or 20, 1995.
    (2) During an enforcement conference with the NRC on September 15, 
1995, Lourdes Boschuk, President of JLT, stated that JLT's operable 
Troxler gauge was in storage and was not used ``at all''. In fact, that 
gauge was transferred by JLT on September 6, 1995, to Cashin 
Associates, P.C. for use at the Brookhaven Landfill in New York State, 
and was not returned to JLT until September 19 or 20, 1995. This 
inaccurate statement was in violation of 10 CFR 30.9(a) and was made 
with careless disregard for the facts.
    (3) In a letter to the NRC dated September 18, 1995, prepared by 
John Boschuk, Jr. and signed by Lourdes Boschuk, and sent to the NRC in 
response to the NRC's September 15, 1995, letter confirming JLT's 
commitment at the September 15, 1995, enforcement conference to refrain 
from using the Troxler density gauges pending resolution of the 
apparent violations, JLT made several inaccurate statements. The letter 
stated that all of JLT's gauges have been in the storage cabinet on the 
JLT premises since the visit of the NRC inspector. This was a 
deliberate, materially inaccurate statement in violation of 10 CFR 
30.9(a) and 30.10(a)(2). In fact, Ms. Boschuk knew no later than 
September 15, 1995, during a telephone call to the Director of JLT 
immediately after the September 15, 1995, enforcement conference, that 
one of JLT's Troxler gauges had been transferred on September 6, 1995, 
to Cashin Associates, P.C. in New York State. In fact, Mr. Boschuk 
learned from Ms. Boschuk no later than the weekend ending September 17, 
1995, that the gauge had been transferred to Cashin Associates, P.C. As 
explained above, he also knew that the gauge had been transferred to SE 
Technologies, Inc. between July 18, and August 17, 1995, although the 
NRC inspection ended on August 3, 1995.
    In addition, the letter stated that all three JLT Troxler gauges 
were currently locked in the designated storage cabinet on the JLT 
premises. This inaccurate statement was in violation of 10 CFR 30.9(a) 
and was made with at least careless disregard as to its truth or 
falsity by both Mr. and Ms. Boschuk. In fact, Lourdes Boschuk sent 
JLT's Radiation Safety Officer (RSO) to retrieve the gauge which had 
been transferred to Cashin Associates, P.C., but the RSO did not return 
to JLT with the gauge until late in the evening of September 19 or 
early in the morning of September 20, 1995. Mr. Boschuk stated at the 
December 18, 1997, predecisional enforcement conference that although 
he checked the storage cabinet before preparing the letter, and saw 
three yellow cases which he assumed contained the gauges, he did not 
look inside the cases to verify the gauges were there.
    (4) Figure 1 of the November 21, 1994, JLT application, revised 
January 6, 1995, depicted a locked steel cabinet on the JLT premises as 
the storage site for the three Troxler gauges. However, the cabinet did 
not have a lock. John Boschuk, Jr. prepared Figure 1. This materially 
inaccurate statement was in violation of 10 CFR 30.9(a) and was

[[Page 19531]]

made with at least careless disregard for the facts by Mr. Boschuk.

B. Unauthorized Use of Byproduct Material and Related Materially 
Inaccurate Statements

    JLT admittedly used the Troxler density gauge(s) on four occasions 
after revocation of the JLE license and before the NRC issued a license 
to JLT on February 7, 1995. JLT stated at the December 18, 1997, 
enforcement conference that JLT employees used the gauges on those 
occasions and that JLT invoiced its customers for the usage. 
Specifically, JLT admitted to using the gauge(s) for the following 
customers: DelSir Supply in December 1993, Johnson Construction in May 
1994, Johnson Construction in June 1994, and PA Soil & Rock Company in 
July 1994. These violations of 10 CFR 30.3 were committed with at least 
careless disregard by JLT.
    As a consequence, the statement by Ms. Boschuk in her November 21, 
1994, letter to the NRC, that the gauges had not been used and had not 
left storage at JLT since August 30, 1993, and the statement by Mr. 
Boschuk in his October 11, 1994, letter to the NRC, that the gauges had 
not been used for over two years and had not left storage, were 
materially inaccurate in violation of 10 CFR 30.9(a) and made with at 
least careless disregard.

C. Violation of License Condition

    Condition 19 of the JLT License requires that, when not in use, the 
Troxler gauges be kept in a locked cabinet on JLT's premises, as 
depicted by Figure 1 of the January 6, 1995, amended application. 
Figure 1, prepared by Mr. Boschuk, pictures a storage closet with a 
lock. In violation of that requirement, JLT failed to maintain its 
gauges in a locked storage cabinet between February 7, 1995 and 
sometime before the August 1995 inspection. The failure to maintain the 
gauges in a locked cabinet was in violation of Condition 19 of JLT's 
License and of 10 CFR 30.3.

D. Destruction of Records Relating to Gauge Usage

    According to a witness, Lourdes Boschuk, John Boschuk, Jr. and 
others destroyed, altered, sanitized, or otherwise disposed of business 
and transactional records shortly after the August 1995 NRC inspection 
of JLT, in order to conceal from the NRC the unauthorized use and/or 
transfer of Troxler gauges by JLT. Among the records destroyed or 
disposed of were invoices and a log documenting use of the Troxler 
density gauges. According to a handwritten note, created by a JLT 
employee immediately after the September 15, 1995, enforcement 
conference, although utilization records were made available to the NRC 
inspector, those records could not be subsequently located. The note 
further reflected a question whether the utilization records were 
``thrown away during sanitization of records?'' Shortly after the 
August 1995 inspection, the NRC inspector requested JLT to provide a 
copy of a utilization record found during the inspection and which 
documented the rental of a gauge to SE Technologies in September 1994, 
when neither JLE nor JLT had a valid NRC license. JLT did not provide 
the invoice and claimed it could no longer find the document. Condition 
19 of JLT's License requires that JLT conduct its licensed activities 
in accordance with its Application dated January 6, 1995. The 
Application mandates that JLT comply with conditions requiring the 
creation of a utilization log for the gauges and the maintenance of the 
log for audit purposes. The destruction of the utilization log was in 
violation of 10 CFR 30.3 and 30.9(a). The participation of John 
Boschuk, Jr. and Lourdes Boschuk in the deliberate destruction of the 
utilization log was in violation of 10 CFR 30.10(a).

IV

    Based on the above, the NRC concludes that the Licensee willfully 
violated NRC requirements, both deliberately and with careless 
disregard, and committed violations of NRC safety requirements. Among 
the Licensee's willful violations were repeated, materially inaccurate 
statements to the NRC regarding unauthorized use of byproduct material, 
unauthorized use of licensed material, violation of license conditions 
regarding the use and storage of the gauges, and the destruction or 
disposal of records related to unauthorized use of licensed material. 
As stated above, among the Licensee's violations of safety requirements 
were the failure to perform required leak tests, to have an approved 
Radiation Safety Officer, and the failure to perform required 
inventories of licensed material. The NRC must be able to rely on its 
Licensee's integrity and their compliance with NRC requirements. The 
Licensee's numerous willful violations and other violations demonstrate 
that the Licensee is either unwilling or unable to comply with NRC 
requirements.
    Consequently, I lack the requisite reasonable assurance that the 
Licensee is willing and able to conduct operations under License No. 
37-28442-02 in compliance with the Commission's requirements, or that 
the health and safety of the public will be protected if J&L Testing 
Company, Inc. continues to engage in licensed activity. Therefore, the 
public health, safety and interest require that License No. 37-28442-02 
be revoked.

V

    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 30.10, IT IS HEREBY ORDERED THAT 
LICENSE NO. 37-28442-02 IS REVOKED, AND ALL LICENSED MATERIAL CURRENTLY 
IN THE LICENSEE'S POSSESSION SHALL BE TRANSFERRED TO AN AUTHORIZED 
RECIPIENT WITHIN 7 DAYS OF THE EFFECTIVE DATE OF THIS ORDER. FURTHER, 
THE LICENSEE SHALL NOTIFY THE NRC WITHIN TWO BUSINESS DAYS AFTER SUCH 
TRANSFER HAS TAKEN PLACE AS TO WHOM THE TRANSFER WAS MADE. THE LICENSEE 
MAY TELEPHONICALLY CONTACT NRC'S REGIONAL OFFICE AT 610-337-5000 TO 
COMPLY WITH THE NOTIFICATION REQUIREMENT.

VI

    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, US 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 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, Rulemaking 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

[[Page 19532]]

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.
    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.

    Dated at Rockville, Maryland this 10th day of April 1998.

For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 98-10328 Filed 4-17-98; 8:45 am]
BILLING CODE 7590-01-P