EA-99-057 - Alfonso DeLeo, Jr.

August 23, 1999

EAs 99-057 and 99-217

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

SUBJECT:

(1)  ORDER IMPOSING CIVIL MONETARY PENALTY – $5,500 (2)  NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES – $15,000

Dear Mr. Deleo:

On June 2, 1999, the NRC issued you a Notice of Violation and Proposed Imposition of Civil Penalty (Notice). Our letter and Notice describe a violation identified by the NRC involving your willful unauthorized possession of nuclear gauges. To emphasize the unacceptability of willful violations and the need to comply with Commission regulations, a civil penalty of $5,500 was proposed.

In our June 2, 1999 letter, the NRC staff stated that it would forego imposition of the $5,500 civil penalty if you transferred the portable gauges in your possession to an authorized recipient within 30 days of the June 2, 1999 letter. Your license would be then terminated by written notice in accordance with 10 CFR 30.36(k) when the NRC determined that all licensed material has been transferred.

In addition, the NRC informed you that if you did not transfer the gauges in your possession within 30 days of the date of that letter, in addition to the $5,500 civil penalty proposed for the violation in the attached Notice, the NRC intended to consider daily civil penalties of $500 per day. Daily civil penalties are justified because you clearly have been, and continue to be, aware that you are in violation of NRC requirements, and yet you have failed to take effective corrective actions. The NRC noted that, if assessed, the daily civil penalties would continue until the portable gauges are properly transferred, and would be imposed for each 30 day period at $15,000 per period.

Although you informed Francis Costello and Steven Courtemanche of the NRC Region I office on June 18, 1999 that you received a copy of the Notice from your Post Office Box on June 12, 1999, as of the date of this letter, you have failed to respond to the Notice.

Accordingly, we hereby serve the enclosed Order on you imposing a civil monetary penalty in the amount of $5,500. As provided in Section IV of the enclosed Order, payment should be made within 30 days in accordance with NUREG/BR-0254. In addition, at the time payment is made, a statement indicating when and by what method payment was made, is to be mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

Consistent with our June 2, 1999 letter, the NRC is also proposing additional civil penalties in the amount of $15,000 ($500 a day for the period from July 12 through August 11, 1999). However, the NRC will forego imposition of the additional $15,000 civil penalties if you transfer the portable gauges in your possession to an authorized recipient within 30 days of the date of this letter. 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.

The NRC intends to continue to assess additional daily civil penalties of $500 per day if you do not transfer the gauges in your possession within 30 days of 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.

Moreover, you should be aware that your continued willful violation of NRC regulations could result in criminal sanctions. Accordingly, we are forwarding the matter to the Department of Justice for their consideration.

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

		Sincerely,
		R.W. Borchardt, Director Office of Enforcement

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

Enclosures:
1.  Order Imposing Civil Monetary Penalty
2.  Notice of Violation and Proposed Imposition of Civil Penalties

cc w/encls:
Commonwealth of Pennsylvania

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UNITED STATES NUCLEAR REGULATORY COMMISSION
In the Matter of	)
	)
Alfonso Deleo, Jr. Ardmore, Pennsylvania	) ) ) )	Docket No. 030-19405 License No. 37-20553-01                    (Suspended) EA 99-057
	)

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Alfonso Deleo, Jr.(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. Mr. Deleo has failed to pay annual fees since 1991.

II

On September 20, 1993, the NRC contacted Mr. Deleo to inform him of the need to renew the license and pay annual fees, which he had not done for the preceding two years. After Mr. Deleo indicated that it was his intent to terminate the license and that he had found a licensee to take the two gauges in his possession, the NRC outlined the steps that he would have to take to terminate the license once the licensed material was properly transferred. Subsequently, 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. As a result of Mr. Deleo's continued non-payment of fees, the NRC issued an Order Suspending License on February 12, 1996.

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 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.

Subsequently, the NRC sent Mr. Deleo another 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 Office of Investigations and Division of Nuclear Materials Safety 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 the Licensee had not conducted its activities in full compliance with NRC requirements, a written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee 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.

III

Although Mr. Deleo has confirmed to the NRC, during a telephone conversation on June 18, 1999, that he has received the NRC's June 2, 1999 letter transmitting the Notice of Violation and Proposed Imposition of Civil Penalty, he has failed to respond to it and is still in possession of the gauges. Therefore, the NRC staff has determined, as set forth in the Appendix to this Order, that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice 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:

The Licensee pay a civil penalty in the amount of $5,500 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

The Licensee may request a hearing within 30 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, DC 20555, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing" and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 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, Pennsylvania, 19406.

If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), 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 the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be:

(a) whether the Licensee 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 violation, this Order should be sustained.

		FOR THE NUCLEAR REGULATORY COMMISSION
		R. W. Borchardt, Director Office of Enforcement

Dated this 23rd day of August 1999

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APPENDIX

EVALUATION(S) AND CONCLUSION

On June 2, 1999, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued to Alfonso Deleo for a violation identified during an NRC inspection and investigation. Mr. Deleo has failed to respond to the Notice. Accordingly, the NRC has concluded that the violation occurred as stated in the Notice and the licensee has not provided any basis for a reduction of the severity level or for mitigation of the civil penalty. Therefore, the proposed civil penalty in the amount of $5,500 should be imposed.

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NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES
Mr. Alfonso DeLeo, Jr. Ardmore, Pennsylvania		Docket No. 030-19405 License No. 37-20553-01 EA 99-217

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 NRC proposes to impose civil penalties pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and associated civil penalties are set forth 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, between July 12, 1999 and August 11, 1999, 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 Penalties – $15,000

Pursuant to the provisions of 10 CFR 2.201, you are 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 Penalties (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, you may pay the civil penalties 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, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalties in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should you fail to answer within the time specified, an order imposing the civil penalties will be issued. Should you elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalties, 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 penalties should not be imposed. In addition to protesting the civil penalties in whole or in part, such answer may request remission or mitigation of the penalties.

In requesting mitigation of the proposed penalties, 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. Your attention 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 penalties 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 penalties, 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 penalties, and Answer to a Notice of Violation) should be addressed to: R. W. Borchardt, 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, 475 Allendale Road, King of Prussia, Pennsylvania, 19406.

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 this 23rd day of August, 1999