Notices. NUCLEAR REGULATORY COMMISSION

3,835 words·~17 min read·/register/2001/09/28/01-24335·

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BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [IA-01-022] In the Matter of Mr. Virgil J. Hood, Jr.; Demand for Information I Mr. Virgil J. Hood, Jr. was the Vice President of Moisture Protection Systems Analysts, Inc. (MPSA or the Licensee) formerly located at 1350 Beverly Road, Suite 223, McLean, Virginia 22101. The Licensee was the holder of Byproduct Materials License No. 45-24851-02 (the license), which was issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR part 30 on June 19, 1986 and renewed on January 30, 1992.

The license authorized MPSA to possess byproduct material, i.e., a Seaman Nuclear Corporation Model R-50 portable roofing gauge containing a nominal 40 millicuries

(mCi)of Americium-241, for use in measuring moisture density of roof surfaces in accordance with the conditions specified in the license. On April 20, 1998, the Licensee's license was revoked. II Between December 31, 1997, and January 31, 2001, the NRC Office of Investigations

(OI)conducted an investigation to determine the location of a moisture density gauge containing licensed material after the Licensee failed to pay the NRC annual license fee for fiscal year 1996, and had vacated the premises listed on its license without prior notice to the NRC. These actions by the Licensee had resulted in the NRC issuing an Order Suspending License (Effective Immediately) (Order Suspending License) to MPSA on May 15, 1997. The Order Suspending License imposed certain requirements upon the Licensee and required a response from the Licensee. Subsequently, after the Licensee failed to submit the required answer to the Order Suspending License, a Notice of Violation and Proposed Imposition of Civil Penalty—$5,500, and Order Modifying Order Suspending License (Effective Immediately) and Order Revoking License (Order Revoking License) were issued to MPSA revoking its license on April 20, 1998. The Order Revoking License required that the Licensee maintain licensed material in safe storage, immediately notify the NRC of its current business location and status of licensed material, test the gauge for leak tightness, and transfer all licensed material to an authorized recipient within 30 days of the Order Revoking License. To date, the Licensee has failed to respond to the Order Revoking License. On May 5, 2000, the NRC was notified that a portable moisture density gauge containing licensed material had been received at a landfill. The gauge was a Seaman Nuclear Corporation Model No. R-50 portable moisture density gauge, and was labeled as belonging to MPSA. The OI investigation determined that the Licensee deliberately refused to allow NRC inspection of the licensed material or of required records, as required by 10 CFR 30.52; failed to control licensed material, as required by 10 CFR 20.1801 and 10 CFR 20.1802; and deliberately failed to notify the NRC of a missing or stolen source as required by 10 CFR 20.2201(a)(1)(i). It further concluded that the Licensee's Vice President, Mr. Hood, failed to control licensed material not in storage and deliberately failed to notify the NRC of a missing or stolen source. In addition, information developed during the investigation indicated that, although not named as an authorized user on the license, Mr. Hood used the moisture density gauge containing licensed material. Consequently, it was reasonable for the NRC to expect Mr. Hood to respond to questions concerning the Licensee's activities. During the investigation, numerous attempts were made to contact Mr. Hood in order to determine his responsibilities under the license and his responsibilities with regard to the identified violations. In this regard, the NRC issued a subpoena for Mr. Hood to appear at a compelled interview on September 16, 1998; requested an interview with Mr. Hood on September 22, 1998; subpoenaed Mr. Hood on November 4, 1999, to attend a compelled interview on December 3, 1999; and, by letter dated March 23, 2001, requested Mr. Hood to respond to the apparent violations in writing or to attend a predecisional enforcement conference to discuss the apparent violations identified during the investigation. Mr. Hood failed to respond to the subpoenas or to appear at the interviews, and did not respond to the letter dated March 23, 2001. This situation demonstrates a lack of regard for, and adherence to, NRC requirements and raises serious questions as to whether Mr. Hood will in the future adhere to NRC requirements. Therefore, further information is needed to determine whether the Commission can have reasonable assurance that in the future Mr. Hood will conduct licensed activities in accordance with the Commission's requirements. III Accordingly, pursuant to sections 161b, 161c, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204, the Commission requests that Mr. Hood submit the following information: 1. A description of your responsibilities as Vice President of MPSA with regard to NRC licensed activities. 2. An explanation as to whether or not you were an authorized user of the gauge. 3. An explanation as to why you did not heed the subpoenas issued for compelled interviews on September 16, 1998, and December 3, 2000, or respond to the letter dated March 23, 2001, offering you an opportunity to respond to the apparent violation and to request a predecisional enforcement conference. 4. A statement that demonstrates your commitment to compliance with regulatory requirements and sets forth the basis for why the Commission should have confidence that you will comply with applicable NRC requirements in the future. You may provide any other information that you want the NRC to consider, including a statement as to whether you believe that the statements made in Section II are accurate. You may respond to this Demand for Information by filing a written answer under oath or affirmation or by setting forth your reasons why this Demand for Information should not have been issued if the requested information is not being provided. The response to this Demand for Information is to be submitted to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, in writing and under oath or affirmation. Copies also shall be sent to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region II, 61 Forsyth St. SW, Suite 23T85, Atlanta, GA 30303-8931. The response should be sent 30 days from the date of this Demand for Information if your current employment is involved in NRC-licensed activities or within 20 days of acceptance of an employment offer involving NRC-licensed activities or your becoming involved in NRC-licensed activities for five years from the date of this Demand for Information. NRC-licensed activities are those activities that are conducted pursuant to a specific or general license issued by the NRC including, but not limited to, those activities of Agreement State licensees conducted pursuant to the authority granted by 10 CFR 150.20. Upon review of your answer the Commission may institute a proceeding pursuant to 10 CFR 2.202 or take such other action as may be necessary to ensure compliance with regulatory requirements. Your response to the Demand for Information will be considered before a decision is made in this matter. If you choose to respond, your response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records

(PARS)component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at *http://www.nrc.gov/NRC/ADAMS/index.html* (the Public Electronic Reading Room). Therefore, to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public 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. Dated this 12th day of September 2001. For the Nuclear Regulatory Commission. Carl J. Paperiello, Deputy Executive Director for Materials, Research and State Programs. [FR Doc. 01-24335 File 9-27-01; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 71-0122, Approval No. 0122 EA-01-164] In the Matter of J.L. Shepherd & Associates, San Fernando, California; Confirmatory Order Relaxing Order; Effective Immediately I J.L. Shepherd & Associates (JLS&A or Approval Holder) was the holder of Quality Assurance

(QA)Program Approval for Radioactive Material Packages No. 0122 (Approval No. 0122), issued by the U. S. Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR part 71, subpart H. The approval was previously issued pursuant to the QA requirements of 10 CFR 71.101. QA activities authorized by Approval No. 0122 include: design, procurement, fabrication, assembly, testing, modification, maintenance, repair, and use of transportation packages subject to the provisions of 10 CFR part 71. Approval No. 0122 was originally issued January 17, 1980. Revision No. 5 was issued January 24, 1996, with an expiration date on January 31, 2001, and is under timely renewal. In addition to having a QA program approved by the NRC to satisfy the provisions of 10 CFR part 71, subpart H, to transport or deliver for transport licensed material in a package, JLS&A is required by 10 CFR part 71, subpart C, to have and comply with the package's Certificate of Compliance

(CoC)issued by the NRC. Based on JLS&A failure to comply with 10 CFR part 71, QA Program Approval No. 0122 was withdrawn, by the immediately effective NRC Order dated July 3, 2001. II NRC staff conducted an inspection on May 29-31, 2001, at JLS&A's facility. The inspection identified significant concerns with the implementation of the JLS&A QA program regarding the design, use, repair, and maintenance of transportation packages approved for use by NRC under CoC No. 6280. Specifically, NRC found that JLS&A failed to implement portions of the QA Program Approval No. 0122 which resulted in JLS&A delivering for export radioactive material in a transportation package that did not comply with the requirements of 10 CFR part 71. As a result of the findings during the May 29-31, 2001, inspection the NRC lacked confidence that JLS&A would implement the QA Program approved by NRC in accordance with 10 CFR part 71, subpart H, in a manner that would assure the required preparation and use of transportation packages in full conformance with the terms and conditions of an NRC CoC and with 10 CFR part 71. Consequently, as noted above, in the interest of protecting public health and safety, JLS&A QA Approval No. 0122 was withdrawn by an immediately effective Order issued July 3, 2001, (July 2001 Order). III By letter dated August 17, 2001, JLS&A responded to the U.S. Nuclear Regulatory Commission's July 2001 Order. In a response, dated August 16, 2001, JLS&A requested that provisions of the Order be relaxed based on a showing of good cause. Specifically, JLS&A requested interim relief from the July 2001 Order based on JLS&A's proposed Near-Term Corrective Action Plan (NTCAP), to allow 66 shipments to 15 customers, in Department of Transportation specification packaging designated as 20WC. The NRC staff reviewed JLS&A's relief request and identified, in a September 7, 2001, letter, information necessary for the NRC staff to determine whether to grant the requested relief consistent with assurances that public health and safety are maintained. By letter dated September 13, 2001, JLS&A requested to make two additional shipments to an additional customer also using the 20WC packaging. With respect to the substantive concerns identified by the staff in the July 2001 Order, JLS&A agreed to take the following corrective actions listed below, before it makes any of the proposed 68 shipments to 16 customers in accordance with the proposed NTCAP. 1. a. JLS&A will correct the deficiencies or clarify language, as applicable, in the QA/QC implementing documents, including procedures, for the 1995 JLS&A Quality Assurance Program Plan (QAPP), identified in the Quality Assurance Audit (QA Audit) issued by Donald R. Neely Associates on December 4, 2000, with respect to those items that require full or limited application of the NTCAP as stated in Section 1.2 and Appendix A of the August response; b. JLS&A will make available to NRC inspectors a document indicating how each deficiency in the QA Audit was corrected; 2. a. JLS&A will use the implementing procedures for the 1995 QAPP, as revised and corrected in accordance with Item 1, to complete an inspection of all 20WC packages involved in the proposed NTCAP. The inspection will confirm that the packages and associated procedures are in conformance with 49 CFR 178.362, “Specification 20WC wooden protective jacket.” Each inspection will include, at a minimum, actual physical measurements, and visual inspections for damage, corrosion, or other potentially unacceptable conditions; b. JLS&A will document the results of each inspection in separate reports approved by the QA Administrator and prepared in accordance with the revised QAPP and implementing procedures. The report will include the list of attributes verified, the acceptance criteria, and the results for each attribute; 3. JLS&A will train all JLS&A's staff, contractors, and sub-contractors, involved in the NTCAP, in the revised QAPP and implementing procedures for NTCAP activities. Training of the QA Administrator will be performed by a QA auditor with the following minimum qualifications; an understanding of the NTCAP, a university degree in a physical science or engineering program or equivalent experience, experience in the review of engineering drawings, scientific technology, nuclear technology, transportation regulations, and at least 5 years experience with International and American national quality assurance standards and quality assurance programs. Training of the JLS&A staff, contractors, and sub-contractors shall be performed by either the QA Auditor or the QA Administrator once trained. The QA Auditor who will perform duties under this paragraph will be Mr. Donald R. Neely; 4. JLS&A will provide certifications under oath and affirmation from both J. L. Shepherd and the independent auditor that the three conditions listed above have been completed; 5. JLS&A commits to implement the actions in the August response; 6. a. JLS&A commits to have an independent auditor, who has full authority, to review and inspect all aspects of JLS&A operations, shipments, and documentation, that the independent auditor believes are necessary, perform monthly performance based and in-depth audits of all ongoing NTCAP items. The independent auditor shall be approved by NRC or have been previously approved by NRC to perform audits at JLS&A. The QA Auditor who will perform duties under this paragraph will be Mr. Donald R. Neely; b. The audits described in paragraph 6.a. will, at a minimum, be performed using the inspection evaluation guidelines in Chapter 4 of NUREG/CR-6314, “Quality Assurance Inspections for Shipping and Storage Containers,” and will include a combination of procedures and records review and observations of actual packaging activities, as appropriate for the audits performed; c. The independent QA auditor will document the objective, scope, findings and proposed corrective actions of the audits and will provide copies simultaneously to both JLS&A and NRC. The audit report shall be provided 20 calendar days after the end of each month; and 7. JLS&A commits to hold all shipments until NRC has completed an inspection. At the conclusion of the inspection, NRC will notify JLS&A if shipments can commence. In addition, on September 13, 2001, JLS&A consented to issuance of this Confirmatory Order granting interim relief from the July 2001 Order subject to the commitments, as described in Section IV below, agreed that this Confirmatory Order is to be effective upon issuance, and agreed to waive its right to a hearing on this action. Implementation of these commitments will provide assurance that sufficient resources will be applied to the QA program, and that the program will be conducted safely and in accordance with NRC requirements. I find that JLS&A's commitments as set forth in Section IV are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that the public health and safety require that JLS&A's commitments be confirmed by this Confirmatory Order. Based on the above and JLS&A's consent, this Confirmatory Order is effective immediately upon issuance. IV Accordingly, pursuant to sections 62, 81, 161b, 161i, 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 71 and 110, *It Is Hereby Ordered, Effective Immediately, That The* July 3, 2001 *Order Is Relaxed To Grant Interim Relief To Allow* 68 Shipments to 16 Customers 20 WC Packages in Accordance with JLS&A'S NTCAP, Through March 2002, *Provided:* 1. a. JLS&A will correct the deficiencies or clarify language, as applicable, in the QA/QC implementing documents, including procedures, for the 1995 QAPP, identified in the Quality Assurance Audit (QA Audit) issued by Donald R. Neely Associates on December 4, 2000, with respect to those items that require full or limited application of the NTCAP as stated in Section 1.2 and Appendix A of the August response; b. JLS&A will make available to NRC inspectors a document indicating how each deficiency in the QA Audit was corrected; 2. a. JLS&A will use the implementing procedures for the 1995 QAPP, as revised and corrected in accordance with Item 1, to complete an inspection of all 20WC packages involved in the proposed NTCAP. The inspection will confirm that the packages and associated procedures are in conformance with 49 CFR 178.362, “Specification 20WC wooden protective jacket.” Each inspection will include, at a minimum, actual physical measurements, and visual inspections for damage, corrosion, or other potentially unacceptable conditions; b. JLS&A will document the results of each inspection in separate reports approved by the QA Administrator and prepared in accordance with the revised QAPP and implementing procedures. The report will include the list of attributes verified, the acceptance criteria, and the results for each attribute; 3. JLS&A will train all JLS&A's staff, contractors, and sub-contractors, that will be involved in the NTCAP, in the revised QAPP and implementing procedures for NTCAP activities. Training of the QA Administrator will be performed by a QA auditor with the following minimum qualifications; an understanding of the NTCAP, a university degree in a physical science or engineering program or equivalent experience, experience in the review of engineering drawings, scientific technology, nuclear technology, transportation regulations, and at least 5 years experience with International and American national quality assurance standards and quality assurance programs. Training of the JLS&A staff, contractors, and sub-contractors shall be performed by either the QA Auditor or the QA Administrator once trained. The QA Auditor who will perform duties under this paragraph will be Mr. Donald R. Neely; 4. JLS&A will provide certifications under oath and affirmation from both J. L. Shepherd and the independent auditor that the three conditions listed above have been completed; 5. JLS&A commits to implement the actions in the August response; 6. a. JLS&A commits to have an independent auditor, who has full authority to review and inspect all aspects of JLS&A operations, shipments, and documentation that the independent auditor believes are necessary, perform monthly performance-based and in-depth audits of all ongoing NTCAP items. The independent auditor shall be approved by NRC or have been previously approved by NRC to perform audits at JLS&A. The QA auditor who will perform duties under this paragraph will be Mr. Donald R. Neely; b. The audits described in paragraph 6.a. will, at a minimum, be performed using the inspection evaluation guidelines in Chapter 4 of NUREG/CR-6314, “Quality Assurance Inspections for Shipping and Storage Containers,” and will include a combination of procedures and records review and observations of actual packaging activities, as appropriate for the audits performed; c. The independent QA auditor will document the objective, scope, findings and proposed corrective actions of the audits and will provide copies simultaneously to both JLS&A and NRC. The audit report shall be provided 20 calendar days after the end of each month; and, 7. JLS&A commits to hold all shipments until NRC has completed an inspection. At the conclusion of the inspection, NRC will notify JLS&A if shipments can commence for the proposed 68 shipments to 16 customers in accordance with the NTCAP. The Director, Office of Enforcement or Office of Nuclear Material Safety and Safeguards, may in writing, relax or rescind this Confirmatory Order upon demonstration of good cause by the Approval Holder. V In accordance with 10 CFR 2.202, any person, other than JLS&A, adversely affected by this Confirmatory Order may request a hearing within 20 days of its issuance. 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. Any request for a hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, Attn: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies of the hearing request also should be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Director, Office of Nuclear Material Safety and Safeguards at the same address, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 76011, and to the Approval Holder. If such person requests a hearing, that person shall set forth with particularity the manner in which his or her interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.714(d). If a hearing is requested by 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 Confirmatory Order should be sustained. 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 Confirmatory 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. A Request for Hearing Shall Not Stay The Immediate Effectiveness of This Confirmatory Order. Dated this 19th day of September 2001. For the Nuclear Regulatory Commission. Frank J. Congel, Director, Office of Enforcement. [FR Doc. 01-24338 Filed 9-27-01; 8:45 am]

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