[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Notices]
[Pages 23810-23812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11502]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[License No. 45-24851-02; Docket No. 030-32660; EA 98-213]


In the Matter of Moisture Protection Systems Analysts, Inc., 1350 
Beverly Road, Suite 223, McLean, VA 22101; Order Modifying Order 
Suspending License (Effective Immediately) and Order Revoking License

I

    Moisture Protection Systems Analysts, Inc., 1350 Beverly Road, 
Suite 223 McLean, Virginia 22101, (the Licensee or MPS) is the holder 
of Byproduct Material License No. 45-24851-02 (the license), which was 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR Part 30 on January 30, 1992. The license authorizes 
MPS to possess byproduct material, i.e., a Siemens Model R-50 portable 
roofing gauge that contains a nominal 40 millicuries (mCi) of 
Americium-241, for use in measuring moisture density of roof surfaces 
in accordance with the conditions specified in the license. Mr. Virgil 
J. Hood, President, MPS, is the only authorized user listed on the 
license. On February 27, 1997, and May 15, 1997, the license was 
suspended by immediately effective Order based on non-payment of annual 
fees required pursuant to 10 CFR 171.16.

II

    On February 3, 1997, an NRC inspection was attempted at the 
Licensee's address (above). The address is a mixed commercial/
residential use condominium. The inspector contacted the condominium's 
marketing representative to determine the whereabouts of the Licensee. 
The marketing representative stated that the Licensee had broken the 
lease and vacated the premises without prior notice in mid-December 
1996. The inspector and the marketing

[[Page 23811]]

representative searched the offices formerly used by the Licensee for 
any evidence of the gauge containing licensed material that the 
Licensee was authorized to possess. Visual observation and radiation 
surveys showed no evidence of the licensed material. The marketing 
representative gave a forwarding address as 2811 12th Street, NE, 
Washington, D.C. The marketing representative indicated that this 
address was provided by one of the Licensee's clients. On February 5, 
6, 10, 11, and 12, 1997, the NRC Region II Office attempted 
unsuccessfully to contact the Licensee by telephone at the 2811 12th 
Street address, identified as Atlas Contractors (ACI). Telephone 
messages were left with an answering service on February 4 and 6, 1997.
    On February 20, 1997, an NRC inspection was attempted at ACI at the 
2811 12th Street address. The inspector spoke to the Office Manager for 
ACI. The Office Manager stated that she had forwarded NRC telephone 
messages to Mr. Hood, the Licensee president and authorized user. The 
Office Manager stated that Mr. Hood was an owner of ACI. The inspector 
conducted visual observation and radiation surveys, but found no 
evidence of the gauge containing licensed material. The inspector 
requested that the Office Manager ask Mr. Hood to contact the NRC 
Region II Office as soon as possible, and the inspector provided two 
names and telephone numbers there, including his own. On February 24 
and 25, 1997, and March 12 and 13, 1997, the NRC Region II Office 
attempted unsuccessfully to contact the Licensee by telephone at ACI.
    On March 18, 1997, an NRC inspection was again attempted at ACI at 
the 2811 12th Street address. No one was at the ACI office. On March 
25, 1997, the NRC Region II Office attempted unsuccessfully to contact 
the Licensee by telephone at ACI. In April 1997, the NRC Region II 
Office contacted ACI and confirmed that Mr. Hood, the Licensee 
president and authorized user, was operating out of that office. On 
June 10, 11 and 20, 1997, and November 19, 1997, the NRC contacted a 
business associate of the Licensee's president and authorized user and 
left messages for the Licensee's president to contact the NRC when 
possible. On November 20, 1997, an NRC inspection was attempted at 1441 
Florida Avenue, N.W., Washington, D.C., an address provided to the NRC 
inspector by the telephone directory service. The inspector was 
informed that Mr. Hood was out of the country and would not return 
until December 10, 1997.
    On February 27, 1997, NRC issued an Order Suspending License 
(Effective Immediately) to the Licensee based on non-payment of the 
annual fee for Fiscal Year 1996, required pursuant to 10 CFR 171.16. 
The Order was sent to the licensee at 2811 12th Street, NE, Washington, 
D.C., by Certified Mail, and was returned to NRC as undelivered.
    On May 15, 1997, NRC issued an Order Suspending License (Effective 
Immediately) to the Licensee based on non-payment of annual fees for 
Fiscal Years 1996 and 1997, required pursuant to 10 CFR 171.16. The 
Order was sent to the Licensee at 2811 12th Street, NE, Washington, 
D.C., by Certified Mail, and was received at that address on May 22, 
1997, as evidenced by a signed return receipt. The May 1997 Order was 
effective immediately and required, among other things, that the 
Licensee: (a) Cease use of its licensed material, other than activities 
involving decommissioning, storage or transfer; (b) dispose of its 
licensed nuclear material; and (c) submit an answer to the Order within 
30 days of the date of the Order. To date, the Licensee has not 
submitted the required answer to the Order and has not been in contact 
with NRC. It is not known whether the Licensee has complied with the 
portions of the Order that require the Licensee to suspend its use of 
licensed material and dispose of the licensed material.

III

    10 CFR 30.52(a) requires that the Licensee afford to the Commission 
at all reasonable times the opportunity to inspect byproduct material 
and the premises and facilities wherein byproduct material is used or 
stored. 10 CFR 30.52(b) requires that the Licensee make available to 
the Commission for inspection, upon reasonable notice, records kept by 
the Licensee pursuant to pertinent regulations. As detailed above, the 
Licensee has violated these requirements. Moreover, given the failure 
of the Licensee to notify the NRC of its abandonment of the facility 
named on the license; the failure to notify NRC of a location where the 
Licensee could be found and inspections conducted; and the admission of 
the Office Manager that she forwarded NRC's telephone messages to Mr. 
Hood, these violations are indicative, at a minimum, of careless 
disregard as defined in the ``General Statement of Policy and Procedure 
for NRC Enforcement Actions'' (Enforcement Policy), NUREG-1600. Because 
NRC has been denied the opportunity to inspect the Licensee's records 
and its byproduct material, NRC cannot be certain that public health, 
safety and the environment are being adequately protected. For example, 
it is not known whether the Licensee has performed leak tests as 
required by Condition 14 of its NRC license and whether or not the 
source is leaking radioactive material.
    Payment of annual fees for possession of byproduct material is 
required by 10 CFR 171.16. As detailed in the May 15, 1997 Order, the 
Licensee violated this requirement for Fiscal Years 1996 and 1997.

IV

    The failure of the Licensee to respond as required by the May 15 
Order, the apparent violations detailed above, and the apparent 
careless disregard of the Licensee's principal officer, Mr. Hood, 
demonstrate that the Licensee is either unwilling or unable to comply 
with Commission requirements and cannot be tolerated. Additionally, 
given the Licensee's actions to thwart an NRC inspection of its 
licensed material and the premises where the material is used and 
stored, the status of the licensed material cannot be determined, and I 
lack the requisite reasonable assurance that licensed activities under 
Byproduct Material License No. 45-24851-02 can be conducted in 
compliance with Commission requirements and that public health and 
safety will be protected if the Licensee were to continue in possession 
of licensed material at this time. Furthermore, pursuant to 10 CFR 
2.202, I find that the significance of the violations described above 
is such that the public health, safety and interest require that the 
provisions of Section V.A. of this Order be immediately effective.

V

    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 that, effective immediately:
    1. The requirements of Paragraphs A. through E. of Section III of 
the Order dated May 15, 1997 and attached hereto remain in effect 
except where modified below.
    2. The Licensee shall immediately contact Mr. Douglas M. Collins, 
Director, Division of Nuclear Materials Safety, NRC Region II, at 
telephone number (404) 562-4700, and report the current location, 
physical status, and storage arrangements of the licensed material. A 
written response documenting this information shall be submitted under 
oath or affirmation to the Regional Administrator, NRC Region

[[Page 23812]]

II, Atlanta Federal Center, 61 Forsyth Street, SW, Suite 23T85, 
Atlanta, Georgia within ten days of the date of this Order.
    3. Within ten days of the date of this Order, the Licensee shall 
complete a leak test pursuant to Byproduct Material License No. 45-
24851-02, Condition 14.A.(1), C and D, to confirm the absence of 
leakage of radioactive materials and to establish the levels of 
residual radioactive contamination. The Licensee shall, within five 
days of the date the leak test results are known, submit the results of 
the leak test in writing to the NRC Region II office. This information 
should be addressed to the Regional Administrator, NRC Region II, at 
the address given in Paragraph A.2. above. If the test reveals the 
presence of 0.005 microcurie or greater of removable contamination, the 
Licensee shall immediately contact Mr. Douglas M. Collins, NRC Region 
II, at the telephone number given in Paragraph A.2. above.
    4. 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 and shall submit 
for NRC approval a completed form NRC-314. This information should be 
addressed to the Regional Administrator, NRC Region II, at the address 
given in Paragraph A.2. above.
    5. At least two working days prior to the date of the transfer of 
any licensed material, the Licensee shall notify Mr. Douglas M. 
Collins, NRC Region II, at the telephone number given in Paragraph A.2. 
above, so that the NRC may, if it elects, observe the transfer of the 
material to the authorized recipient.
    6. Within seven working days following completion of the transfer, 
the Licensee shall provide to the Regional Administrator, NRC Region 
II, in writing, under oath or affirmation: (1) Confirmation, on form 
NRC-314, that all licensed material has been transferred; (2) the last 
date that the licensed material was used; (3) a copy of the leak test 
performed prior to transfer; (4) a copy of the survey performed in 
accordance with 10 CFR 30.36(j)(2); and (5) a copy of the certification 
from the authorized recipient that the licensed material has been 
received. This information shall be addressed to the Regional 
Administrator, NRC Region II, at the address given in Paragraph A.2. 
above.
    B. It is further ordered:
    1. Upon a written finding by the Regional Administrator, NRC Region 
II, 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. 45-24851-02 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.

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, U.S. Nuclear Regulatory Commission, Washington, D.C. 
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 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 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 
Deputy Assistant General Counsel for Enforcement at the same address, 
and to the Regional Administrator, NRC Region II, Atlanta Federal 
Center, 61 Forsyth Street, SW Suite 23T85, Atlanta, Georgia 30303 and 
to MPS if the answer or hearing request is by a person other than MPS. 
If a person other than MPS 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), MPS may, in addition to 
demanding a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the provisions of this Order which 
are immediately effective on the ground that those provisions, 
including the need for immediate effectiveness, are 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 V 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 provisions of this order which are 
immediately effective.

    Dated at Rockville, Maryland, this 20th day of April 1998.

    For the Nuclear Regulatory Commission.
Thomas T. Martin,
Acting Deputy Executive Director for Regulatory Effectiveness.
[FR Doc. 98-11502 Filed 4-29-98; 8:45 am]
BILLING CODE 7590-01-P