EA-99-057 - DeLeo, Alfonso Jr.

June 2, 1999

EA 99-057

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

SUBJECT:   NOTICE OF VIOLATION AND PROPOSED CIVIL PENALTY – $5,500,
                    NOTIFICATION OF CONSIDERATION OF THE IMPOSITION OF DAILY CIVIL PENALTIES

Dear Mr. DeLeo:

You are 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. You have failed to pay annual fees since 1991.

On September 20, 1993, the NRC contacted you to inform you of the need to renew the license and pay annual fees, which you had not done for the preceding two years. After you indicated that it was your intent to terminate the license and that you had found a licensee to take the two gauges in your possession, the NRC outlined the steps that you would have to take to terminate the license once the licensed material was properly transferred. Subsequently, the NRC conducted an inspection at your Havertown, PA, facility on November 16, 1994, at which time you still possessed the gauges, and had not paid the annual fees. As a result of your continued non-payment of fees, the NRC issued an Order Suspending Your License on February 12, 1996.

During a subsequent inspection by the NRC at your Havertown, PA facility on December 5, 1996, the NRC determined that you failed to notify the Commission in accordance with 10 CFR 30.36(d)(3) of the cessation of principal licensed activities. Specifically, you 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. You failed to reply to the Notice within 30 days of its issuance as required by 10 CFR 2.201. The NRC contacted you on February 13, 1997, concerning your failure to reply to the December 16, 1996 Notice, and you indicated that you would reply to the Notice.

Subsequently, the NRC sent you another letter on February 24, 1997, describing the Decommissioning Timeliness rule (10 CFR 30.36), and indicating that the licensed material in your 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, you did not transfer the gauges. During another inspection of your Havertown, PA, facility on March 16, 1998, you were again informed that 10 CFR 30.36 required you to transfer licensed material to an authorized recipient by October 15, 1998. However, you have still not transferred the gauges to an authorized recipient.

The NRC attempted to contact you several times between December 30, 1998 and March 10, 1999 by leaving messages on your answering machine to determine the status of the licensed material. As of April 1, 1999, you had not returned the phone calls. As a result, a joint inspection/investigation by the NRC Office of Investigations and Division of Nuclear Materials Safety was conducted on April 1, 1999, at your Havertown, PA, facility. That investigation disclosed that you still retained possession of the gauges.

Based on the above, the NRC has determined that, as of this date, you have not transferred the gauges, despite repeated reminders of the need to do so. As such, you are in willful violation of NRC requirements. The violation is described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty. Willful violations of NRC requirements are a significant regulatory concern because the conduct of licensed activities in accordance with the Act and the Commission's requirements depends largely on the integrity of individuals. Your continued possession of licensed material, despite the notifications made to you, is particularly serious. Therefore, the violation described in the enclosed Notice has been classified as a Severity Level III violation in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. Because the violation was willful, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. No credit is warranted for identification because the NRC identified the violation. No credit is warranted for your corrective actions because you remain in possession of licensed material and have not yet decommissioned your facility as required.

Therefore, to emphasize the unacceptability of willful violations and the need to comply with Commission regulations, I am issuing the enclosed Notice proposing a civil penalty of twice the base amount (i.e., $5,500) for the violation set forth in the enclosed Notice. However, the NRC staff will provide you with a grace period of 30 days; that is, if you transfer the portable gauges in your possession to an authorized recipient within 30 days of the date of this letter and comply with the other requirements of 10 CFR 30.36, the NRC will forego imposition of the $5,500 civil penalty in the enclosed Notice. Your license will be terminated by written notice in accordance with 10 CFR 30.36(k) when the NRC determines that all licensed material has been transferred.

If you choose to transfer the gauges as described above, you need to provide us with the following information:

1.

At least two days prior to the date of the transfer of the byproduct material (sealed sources), notify Ms. Elizabeth Ullrich, Acting Branch Chief, Nuclear Materials Safety Branch 2, NRC, Region I, by telephone (610-337-5040) so that the NRC may, if it elects, observe the transfer.

2

Within five working days following the completion of the transfer or disposal, provide to the Regional Administrator, Region I, in writing, under oath or affirmation: (1) confirmation, using NRC Form 314, that the byproduct material has been transferred, (2) the last date that the byproduct material was used, (3) a copy of the survey performed in accordance with 10 CFR 30.36(j)(2), and (4) a copy of the certification from the authorized recipient that the sources have been received.

If you choose not to transfer the gauges in your possession within 30 days of the date of this letter, in addition to the $5,500 civil penalty proposed for the violation in the attached Notice, you are hereby notified that the NRC intends to consider daily civil penalties of $500 per day. Daily civil penalties are justified because you clearly were aware that you were in violation of NRC requirements, and yet you have failed to take effective corrective actions. If assessed, the daily civil penalty would continue until the portable gauges are properly transferred, and would be imposed for each 30 day period at $15,000 per period, with the first such period beginning 30 days after the date of this letter. If you properly transfer the portable gauges within 30 days of this letter, daily civil penalties will not be assessed.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response.

Failure to comply with the provisions of this Notice may result in further enforcement action.

Questions concerning the Notice should be addressed to James Lieberman, Director, Office of Enforcement, who can be reached at (301) 415-2740.

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,
		ORIGINAL SIGNED BY JAMES T. WIGGINS
	FOR	Hubert J. Miller Regional Administrator

 

License No. 37-20553-01 (Suspended)
Docket No. 030-19405

Enclosure:
Notice of Violation and Proposed Imposition of Civil Penalty

cc: w/encls:
Commonwealth of Pennsylvania

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ENCLOSURE
NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY
Mr. Alfonso DeLeo, Jr. Ardmore, Pennsylvania		Docket No. 030-19405 License No. 37-20553-01 EA 99-057

During a joint inspection/investigation conducted on April 1, 1999, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the violation is listed below:

10 CFR 30.36(d)(3) requires, in part, that within 26 months of the cessation of principal activities, the licensee begin decommissioning its site. 10 CFR 30.36(h) requires, in part, that, except in circumstances not applicable in this case, the licensee complete decommissioning of the site as soon as practicable, but no later than 24 months following the initiation of decommissioning. (In other words, decommissioning must be completed, at the latest, within 50 months of cessation of principal activities.)

Pursuant to 10 CFR 30.4, decommissioning means to remove a facility safely from service and reduce residual radioactivity to a level that permits release of the property for unrestricted use and termination of the license.

Contrary to the above, as of this date, although the licensee had ceased principal activities before April 6, 1994, a period greater than 50 months ago, the licensee has not completed decommissioning of its site. Specifically, the licensee has not divested itself of licensed material in its possession consisting of sealed sources containing cesium-137 and americium-241. (01013)

This is a Severity Level III violation (Supplement VI).
Civil Penalty – $5,500

Pursuant to the provisions of 10 CFR 2.201, Alfonso DeLeo, Jr., (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an Order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty proposed above or the cumulative amount of the civil penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation(s) listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information).

If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated at King of Prussia, PA
this 2^nd day of June 1999