Federal Register, Volume 64 Issue 244 (Tuesday, December 21, 1999)

[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Notices]
[Pages 71509-71511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33021]

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NUCLEAR REGULATORY COMMISSION

[License No. 37-20553-01 (Suspended) Docket No. 030-19405, EA 99-217]

Alfonso DeLeo, Jr., P.O. Box 312, Ardmore, PA 19003; Order
Modifying Order Suspending License (Effective Immediately) and Order
Revoking License

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.

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

[[Page 71510]]

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 No. Amount billed Comment
----------------------------------------------------------------------------------------------------------------
1. 8/9/91............................. 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 years 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.

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.

[[Page 71511]]

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.

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.

Dated at Rockville, Maryland this 13th day of December 1999.

For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research and State Programs.
[FR Doc. 99-33021 Filed 12-20-99; 8:45 am]
BILLING CODE 7590-01-P