EA-99-217 - Alfonso DeLeo, Jr.

December 13, 1999

EA 99-217

Mr. Alfonso DeLeo, Jr.
Post Office Box 312
Ardmore, Pennsylvania 19003

SUBJECT:

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

Dear Mr. DeLeo:

The enclosed Order is being issued to you because:

1. You have not fully complied with the Order suspending your license (Effective Immediately) that was issued to you on February 12, 1996;
2. You have not paid the annual fee's required by 10 CFR 171.16 (Code of Federal Regulations) for your Nuclear Regulatory Commission (NRC) license⁽¹⁾ since 1991; and
3. An Office of Investigations (OI) investigation determined that you are in willful violation of 10 CFR 30.36.

In addition between December 5, 1996 and November 9, 1999, the NRC has had numerous written and verbal communications with you regarding your failure to dispose of your nuclear gauges. The reasons that we are taking this action are more fully described in the attached Order.

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. If necessary, this matter will be referred to the United States Department of Justice for criminal prosecution.

The enclosed Order requires that you:

1. Continue to keep the two gauges in locked storage and not use them;
2. Leak test the gauges in accordance with license condition 12 prior to transferring the gauges to someone who has a license for them;
3. Transfer the gauges to someone who has a license for them within 30 days; and
4. Fill out an NRC Form 314 (enclosed) and send it to the NRC to show that you completed the transfer of the gauges within 30 days.

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 have questions regarding the contents of this letter or the enclosed Order, or if you have a question or need help, including help requesting a hearing on this Order, please contact George Pangburn, Director, Division of Nuclear Materials Safety, Region I at 610-337-5281 or at 1-800-432-1156.

All actions required by the enclosed Order must be completed within the next 30 days. To date, the NRC has assessed civil penalties against you in this matter totaling $20,500. Furthermore, the NRC may assess additional daily civil penalties beginning on the 31^st day following the date of the enclosed Order continuing at the rate of $500 for each day until you complete all of the required actions. However, if you transfer your licensed material within 30 days as required in the enclosed Order, the NRC will withdraw all assessed civil penalties.

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,
		signed by /s/
		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 Pennsylvania

 

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UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of	)
	) )	License No. 37-20553-01           (Suspended)
Alfonso DeLeo, Jr. P.O. Box 312 Ardmore, Pennsylvania 19003	) ) )	Docket No. 030-19405 EA 99-217

 

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 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

Invoice Date	Invoice Number	Amount Billed	Comment
1.  8/09/91	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 year 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 .
	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.

		FOR THE NUCLEAR REGULATORY COMMISSION
		Carl J. Paperiello, Deputy Executive Director for   Materials, Research and State Programs

Dated at Rockville, Maryland

this 13^th day of December 1999

 

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1. Byproduct Material License No. 37-20553-01