[Federal Register Volume 60, Number 36 (Thursday, February 23, 1995)]
[Notices]
[Pages 10124-10125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4385]



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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-29343; License No. 29-19310-02 (Expired); EA 94-226]


Environmental Testing Laboratories, Inc., Philadelphia, 
Pennsylvania; Order Imposing a Civil Monetary Penalty

I

    Environmental Testing Laboratories (ETL), Inc. (Licensee), is the 
holder of expired Byproduct Materials License No. 29-19310-02 (License) 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR Part 30 on July 31, 1986. The License authorized the 
possession and use of nickel-63 in plated sources or foils, not to 
exceed 15 millicuries per foil, in accordance with the conditions 
specified therein. The License expired on August 31, 1991.

II

    ETL did not submit an application for renewal of the License under 
10 CFR 30.37 prior to its expiration on August 31, 1991, nor did ETL 
notify the Commission, in writing under 10 CFR 30.36, of a decision not 
to renew the License 30 days prior to its expiration. Although Mr. 
Walter Holm, Jr., the Radiation Safety Officer, stated ETL's intentions 
in a letter dated May 15, 1991, to terminate the license, until January 
24, 1995, ETL had not transferred the licensed material to an 
authorized recipient, nor had ETL applied for an NRC license.
    On January 14, 1993, NRC Region I issued a Notice of Violation 
(NOV) at Severity Level IV to ETL, mailed to Mr. Walter Holm, for 
possession of byproduct material without a valid NRC license. The 
letter forwarding the NOV directed the Licensee to lace the byproduct 
material in secure storage, not to use the material, and promptly 
transfer the byproduct material to an authorized recipient. The 
Licensee did not respond to that NOV. In a June 7, 1994 letter, the NRC 
again reminded ETL of the need to respond to the NRC Notice of 
Violation. ETL did not respond. In addition, ETL did not respond to a 
telephone message left on October 26, 1994. On November 10, 1994, a 
written Notice of Violation and Proposed Imposition of Civil Penalty 
(Notice); Notification of Consideration of the Imposition of Daily 
Civil Penalties; and Order to Cease and Desist Use and Possession of 
Regulated Byproduct Material were served upon ETL. The Notice 
categorized the violation at Severity Level III since ETL had not 
transferred the material nor responded to the NOV issued on January 14, 
1993. ETL has not responded in writing to the Notice, even though a 
response was required by December 10, 1994, and even though the NRC 
contacted ETL on January 3, 6 and 18, 1995, regarding submittal of a 
response. ETL has not responded to the Order to Cease and Desist as 
required. However, NRD, a sub-contractor of Perkin-Elmer (an authorized 
recipient) received the sealed source from ETL on January 24, 1995.

III

    The NRC staff has determined, as set forth in the Appendix to this 
Order, that the violations occurred as stated in the Notice, and that a 
penalty of $3,000 should be imposed.

IV

    In view of the foregoing and pursuant to Section 234 of the Atomic 
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, 
it is hereby ordered that:

    ETL pay a penalty in the amount of $3,000 within 30 days of the 
date on this Order, by check, draft, money order, or electronic 
transfer, payable to the Treasurer of the United States and mailed 
to James Lieberman, Director, Office of Enforcement, U.S. Nuclear 
Regulatory Commission, One White Flint North, 11555 Rockville, MD 
20852-2738.

V

    ETL may request a hearing within 30 days of the date of this Order. 
A request for a hearing should be clearly marked as a ``Request for an 
Enforcement Hearing'' and shall be addressed to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 
20555, with a copy to the Commission's Document Control Desk, 
Washington, D.C. 20555. Copies also shall be sent to the Assistant 
General Counsel for Hearings and Enforcement at the same address and to 
the Regional Administrator, NRC Region I, 475 Allendale Road, King of 
Prussia, PA 19406.
    If a hearing is requested, the Commission will issue an Order 
designating the time and place of the hearing. If ETL fails to request 
a hearing within 30 days of the date of this Order, the provisions of 
this Order shall be effective without further proceedings. If payment 
has not been made by that time, the matter may be referred to the 
Attorney General for collection.
    In the event ETL requests a hearing as provided above, the issues 
to be considered at such hearing shall be:
    (a) Whether ETL was in violation of the Commission's requirements 
as set forth in the Notice referenced in Section II above, and
    (b) Whether on the basis of such violations, this Order should be 
sustained.

    Dated at Rockville, Maryland this 15th day of February 1995.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.

Appendix--Violations and Conclusion

    On November 10, 1994, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued based on a review of 
communications (and associated documents) conducted between the NRC 
and Environmental Testing Laboratories, Inc. (ETL) between November 
1991 and October 26, 1994. ETL has not responded to the Notice, even 
though a response was required by December 10, 1994, and even though 
NRC contacted ETL on January 3, 6 and 18, 1995, to remind them of 
need to respond. The violations set forth in the Notice, as well as 
the NRC conclusion on this matter, are as follows:

1. Restatement of Violations

    A. 10 CFR 30.3 states, in part, that except for persons exempt 
as provided in 10 CFR Parts 30 and 150, no person shall possess or 
use byproduct material except as authorized in a specific or general 
license issued pursuant to the regulations in this chapter.
    Contrary to the above, from January 14, 1993 through October 31, 
1994, ETL has been in possession of byproduct material not 
authorized under a specific or general license, and ETL is not 
exempt as provided in 10 CFR Parts 30 and 150. (01013)
    B. 10 CFR 30.36(b) requires, in part, that each licensee notify 
the Commission promptly, in writing, and request termination of the 
license when the licensee decides to terminate all activities 
involving materials authorized under the license.
    10 CFR 30.36(c)(1) requires, in part, that if a licensee does 
not submit an application for license renewal under 10 CFR 30.37, 
the licensee shall, on or before the expiration date specified in 
the license, terminate use of byproduct material; properly dispose 
of byproduct material; submit a completed form NRC-314, which 
certifies information concerning the disposition of material; and 
conduct a radiation survey of the premises where the licensed 
activities were carried out and submit a report of the results of 
this survey.
    Contrary to the above, as of August 31, 1991, the NRC license 
issued to ETL expired and the licensee did not submit an application 
for license renewal nor did it [[Page 10125]] notify the Commission 
and request termination of its license, dispose of its byproduct 
material, submit a completed form NRC-314, and submit a report of 
the results of a survey of the premises where the licensed 
activities were carried out. (01023)

 2. NRC Evaluation and Conclusion

    ETL has failed to respond to the Notice. The November 14, 1993 
letter accompanying the Notice provided a full explanation as to why 
a civil penalty was warranted in this matter. Absent a response from 
ETL, the NRC has no basis to retract the violations or withdraw the 
civil penalty. Since a response to the Notice was due by December 
10, 1994, and ETL has not responded, despite several reminders, the 
NRC concludes that a civil penalty in the amount of $3,000 should be 
imposed.

[FR Doc. 95-4385 Filed 2-22-95; 8:45 am]
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