United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-99-223 - Roof Survey and Consultants, Inc.

October 4, 1999

EA 99-223

Roof Survey and Consultants, Inc.
ATTN: Mr. Charles R. Akers
             President/Radiation Safety Officer
2045 Wesvan Drive, N.E.
Roanoke, VA 24012

SUBJECT: ORDER MODIFYING ORDER SUSPENDING LICENSE (EFFECTIVE IMMEDIATELY) AND ORDER REVOKING LICENSE

NOTIFICATION OF INTENT TO IMPOSE DAILY CIVIL PENALTIES OF $500.00 PER DAY

Dear Mr. Akers:

The enclosed Order is being issued to you because: (1) you have not complied with the Order Suspending License (Effective Immediately) that NRC issued to you on April 3, 1997; and (2) you did not pay the annual fee for fiscal year 1996 required by 10 CFR 171.16 (Code of Federal Regulations) for your Nuclear Regulatory Commission (NRC) license.(1) The reasons that we are taking this action are more fully described in the attached Order.

The NRC Order issued to you on April 3, 1997 suspended your NRC license and required that you either pay the annual fee or else transfer your licensed material (roofing gauge) to someone who has a license for it. The Order also required that you respond to the Order in writing within 30 days. To date, you have not done the things that the Order required you to do.

The enclosed Order requires that you:

  1. Continue to keep the roofing gauge in locked storage and not use it.
  2. Contact Douglas M. Collins, NRC Region II, at 404-562-4700 or at 1-800-577-8510 within five days.
  3. Have the roofing gauge leak tested within 10 days.
  4. Transfer the roofing gauge to someone who has a license for it within 30 days.
  5. Fill out an NRC Form (Form NRC-314, enclosed) and send it to NRC to show that you completed the transfer of the roofing gauge.

This is a summary of the requirements in the Order. You should review the requirements in Sections IV and V of the Order, so that you are aware of the specific details of the requirements. After you fulfill these requirements, the enclosed Order revokes your NRC license.

If you need a better explanation of anything in this letter or the enclosed Order, or if you have a question or need help, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety, Region II at 404-562-4700 or at 1-800-577-8510.

If you do not do the things that the enclosed Order requires, the NRC intends to assess daily civil penalties at the rate of $500.00 per day until you comply with all requirements in the Order. All actions required by the enclosed Order must be completed within the next 30 days. If you do not comply with the Order, we may begin to assess the daily civil penalty beginning on the 31st day following the date of the enclosed Order and continuing at the rate of $500 for each day until you complete all of the required actions. If you transfer your licensed material (roofing gauge) within 30 days as required in the enclosed Order, there will not be any civil penalty.

Pursuant to section 223 of the Atomic Energy Act of 1954, as amended, any person who willfully violates, attempts to violate, or conspires to violate, any provision of the enclosed Order is subject to criminal prosecution.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response will be placed in the NRC Public Document Room.

Sincerely,

  Carl J. Paperiello,
Deputy Executive Director for
Materials, Research, and State Programs

Enclosures:
1.  Order Modifying Order Suspending License
     (Effective Immediately) and Order Revoking
      License
2.  Form NRC-314

cc w/encl:
Commonwealth of Virginia




UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of )  
)  
Roof Survey and Consultants, Inc.
2045 Wesvan Drive, N.E.
Roanoke, Virginia 24012
)
)
)
)
)
License No. 45-23000-02
Docket No. 030-33583
EA 99-223

ORDER MODIFYING ORDER SUSPENDING LICENSE (EFFECTIVE IMMEDIATELY)
AND ORDER REVOKING LICENSE

I

Roof Survey and Consultants, Inc. (RSCI or (licensee) 2045 Wesvan Drive, N.E., Roanoke, VA 24012, is the holder of Byproduct Material License No. 45-23000-02 (the license), which was issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30 on September 14, 1994. The license authorized RSCI to possess byproduct material, i.e., a Troxler Model No. 3216 portable roofing gauge containing a nominal 44 millicuries of Americium-241, for use in measuring the moisture density of roof surfaces in accordance with the conditions specified in the license. Mr. Charles R. Akers, President and Radiation Protection Officer, is the only authorized user listed on the license.

II

Pursuant to 10 CFR 171.16, the licensee is required to pay an annual fee for the license. The licensee's annual fee for License No. 45-23000-02 for fiscal year 1996, as set forth in fee category 3P of 10 CFR 171.16(d), was $1600. In accordance with 10 CFR Part 15, the licensee was sent an original invoice dated August 22, 1996, a second notice dated September 23, 1996, and a final notice dated October 24, 1996, requesting payment of the annual fee. The final notice of payment due specifically informed RSCI that non-payment of the fee might result in the suspension or revocation of the license in accordance with the Commission's regulations at 10 CFR 171.23. To date, the annual fee for 1996 has not been paid.

On April 3, 1997, NRC issued an Order Suspending License (Effective Immediately) to RSCI, based on non-payment of license fees for fiscal year 1996. The Order of April 3, 1997, required, among other things, that RSCI dispose of any licensed material, acquired or possessed under the authority of License No. 45-23000-02.

As of September 5, 1997, the licensee had not complied with the April 3, 1997 Order, in that no disposal of licensed material had occurred. On July 14, 1997, an inspection was conducted which verified that the gauge was stored at Mr. Akers' residence. Mr. Akers was not present during the inspection. On November 20, 1997, an inspection was attempted but the inspector was not able to contact Mr. Akers. On March 27, 1998, an inspection was again attempted; however, Mr. Akers was not present and security of the device could not be verified. On December 8, 1998, an inspection was again attempted. Mr. Akers was not available. His spouse, however, was home and allowed the inspector to verify that the material was still in safe secure storage. Region II attempted to contact Mr. Akers on April 20, 1999, and left a message requesting a return call on his answering machine. Mr. Akers did not return the call.

On May 20, 1999, NRC sent the licensee a certified letter, return receipt requested, reiterating the requirements of the April 3, 1997 Order, that RSCI dispose of any licensed material, acquired or possessed under the authority of License No. 45-23000-02. No response was received. On August 3, 1999, the United States Postal Service confirmed that Mr. Akers signed for and received the certified letter on May 28, 1999. On August 4, 1999, the Director of NRC's Region II Division of Nuclear Materials Safety, attempted to contact Mr. Akers via telephone. Mr. Akers was not available, and a message was left with the person answering the call to have Mr. Akers call the NRC Region II office. To date, Mr. Akers has not returned any calls or otherwise contacted the NRC.

Based on the above, two deliberate violations of NRC requirements have been identified. The violations are: (1) failure to pay the annual fees prescribed by 10 CFR 171.16 for Byproduct Material License No. 45-23000-02 for Fiscal Year 1996; and, (2) failure to comply with the terms of the April 3, 1997, Order Suspending License. Specifically, that Order required the licensee to dispose of all licensed nuclear material, acquired or possessed under the authority of License No. 45-23000-02, and to submit an answer in writing and under oath and affirmation and specifically admit or deny each charge made therein. As of this date, the licensee has neither disposed of the material possessed under the license nor answered that Order.

III

The deliberate failures of the licensee to comply with the April 3, 1997 Order and to pay the annual fee as required by Commission regulations demonstrate that the licensee is either unwilling or unable to comply with Commission requirements. Moreover, because the licensee has failed to respond to NRC inquiries, the NRC is unable to ascertain the current status of licensed material in the licensee's possession. Consequently, I lack the requisite reasonable assurance that public health and safety will be protected if the licensee were to continue in possession of licensed material at this time. Therefore, the public health, safety, and interest require that the licensee report the current location, physical status, and storage arrangements of its licensed material; that the licensee leak test the licensed material; that the licensee transfer the licensed material to an authorized recipient as described below; and that Byproduct Material License No. 45-23000-02 be revoked. Furthermore, pursuant to 10 CFR 2.202, I find that the significance 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 April 3, 1997, and attached hereto remain in effect except where modified below.
  2. The licensee shall contact Mr. Douglas M. Collins, Director, Division of Nuclear Materials Safety, NRC Region II, at telephone number 404-562-4700 or 1-800-577-8510, within five days of the date of this Order and report the current location, physical status, and storage arrangements of the licensed material. Additionally, the licensee shall submit a written statement documenting this information under oath or affirmation to the Regional Administrator, NRC Region II, Atlanta Federal Center, 61 Forsyth Street, SW, Suite 23T85, Atlanta, Georgia 30303, within seven 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. 45-23000-02, Condition 14.A., B., C., and D. to confirm the absence of leakage 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 Regional Administrator, NRC Region II, at the address given in Paragraph 2 above. If the test reveals the presence of 0.005 microcuries or greater of removable contamination, the licensee shall immediately contact Mr. Douglas M. Collins, NRC Region II, at the telephone number given in Paragraph 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 a completed Form NRC-314 to the Regional Administrator, NRC Region II, at the address given in paragraph 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. 45-23000-02 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.

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 II, Atlanta Federal Center, 61 Forsyth Street, S.W., Suite 23T85, Atlanta, Georgia 30303-3415; 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.

FOR THE NUCLEAR REGULATORY COMMISSION


  Carl J. Paperiello,
Deputy Executive Director for
   Materials, Research and State Programs

Dated at Rockville, Maryland
this 4th day of October 1999


1. Byproduct Material License No. 45-23000-02

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