In the Matter of John Boschuk, Jr., Canonsburg, Pennsylvania; Order Prohibiting Involvement in NRC-Licensed Activities

[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Notices]
[Pages 19522-19524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10331]


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NUCLEAR REGULATORY COMMISSION

[IA 98-019]


In the Matter of John Boschuk, Jr., Canonsburg, Pennsylvania; 
Order Prohibiting Involvement in NRC-Licensed Activities

I

    J&L Testing Company, Inc., (Licensee or JLT) is the holder of 
Byproduct Nuclear Material License No. 37-28442-02 issued by the 
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR 
Part 30. The license authorizes possession and use of Troxler portable 
nuclear gauges containing cesium-137 and americium-241 in sealed 
sources. The license, originally issued on February 7, 1995, was 
amended on August 22, 1995, and is due to expire on February 29, 2000. 
The License was suspended by Order, dated September 27, 1995. Lourdes 
T. Boschuk is the President and owner of JLT. John Boschuk, Jr. has 
acted as an agent for and consultant to JLT in the conduct of its 
licensed activities. Mr. Boschuk, the husband of Lourdes Boschuk, is 
also the President and owner of J&L Engineering Company (JLE) located 
on the same premises. JLE held NRC Materials License No. 37-28442-01, 
which authorized use and possession of the same sealed sources, until 
the license was revoked by the NRC on July 30, 1993, for non-payment of 
fees. Concurrently with this Order, the NRC is issuing an Order 
Revoking License to JLT (EA 96-110).

II

    Based on an NRC inspection and an investigation by the NRC's Office 
of Investigations, the NRC has determined that John Boschuk, Jr., while 
serving as President and owner of JLE and as an agent for and 
consultant to JLT, engaged in a pattern and practice of willfully 
violating NRC requirements. Among such violations are the following:

[[Page 19523]]

A. Unauthorized Transfer of Byproduct Material

    The August 30, 1993, Order Revoking License required JLE, among 
other things, to cease use of byproduct material, dispose of the 
byproduct material, and to notify the NRC of the disposition within 30 
days. Nonetheless, JLE continued to possess the material. Consequently, 
the NRC staff again transmitted a copy of the Order Revoking License to 
JLE on August 9, 1994, and a letter to Mr. Boschuk on August 18, 1994. 
The August 18, 1994, letter reminded Mr. Boschuk that continued 
possession of the material without a valid license is a violation of 10 
CFR 30.3, and that he must immediately place the material in secure 
storage until a valid license is acquired and that any other use is not 
authorized. During a telephone call on August 12, 1994, Mr. Boschuk had 
informed the NRC staff that he intended to promptly file an application 
for a new license.
    Nonetheless, as President of and owner JLE, and as an agent for 
JLT, Mr. Boschuk transferred a Troxler gauge on or about September 2, 
1994, to SE Technologies, Inc., of Bridgeville, Pennsylvania, in 
violation of the Order Revoking License dated July 30, 1993, and 10 CFR 
30.3. As stated by the Chief Engineer of SE Technologies, Inc., Mr. 
Boschuk had arranged for the rental, and as stated by a Project 
Engineer of SE Technologies, Inc., Mr. Boschuk had personally 
transferred the gauge to SE Technologies, Inc. Accordingly, Mr. Boschuk 
deliberately violated the Order Revoking License and 10 CFR 30.3, in 
violation of 10 CFR 30.10(a).

B. Materially Inaccurate Statements Made to NRC

    (1) A letter to the NRC dated October 11, 1994, signed by Mr. 
Boschuk as President of JLE, stated that the three Troxler gauges had 
not been used for over two years and had not left the storage area of 
JLE's office. In fact, Mr. Boschuk had deliberately transferred one of 
the gauges in violation of the Order Revoking License and 10 CFR 30.3 
on September 2, 1994, as explained above. This statement was 
deliberately inaccurate in violation of 10 CFR 30.9(a) and 30.10(a)(2).
    In addition, JLT admittedly used the Troxler density gauges on four 
occasions after revocation of the JLE license and before the NRC issued 
a license to JLT on February 7, 1995. Specifically, JLT used the 
gauge(s) for the following customers: DelSir Supply in December 1993, 
Johnson Construction in May 1994, Johnson Construction in June 1994, 
and PA Soil & Rock Company in July 1994. Lourdes Boschuk also stated at 
a December 18, 1997, predecisional enforcement conference that she did 
not get the keys from JLE for the gauges until February 1995. The 
statement by Mr. Boschuk in his October 11, 1994, letter to the NRC, 
that the gauges had not been used for over two years and had not left 
storage, was materially inaccurate in violation of 10 CFR 30.9(a) and 
was made by Mr. Boschuk with at least careless disregard for the facts 
with respect to such usage.
    (2) Figure 1 of the November 21, 1994, JLT application, revised 
January 6, 1995, depicted a locked steel cabinet on the JLT premises as 
the storage site for the three Troxler gauges. However, the cabinet did 
not have a lock. Mr. Boschuk prepared Figure 1. This materially 
inaccurate statement was in violation of 10 CFR 30.9(a) and was made 
with at least careless disregard for the facts by Mr. Boschuk.
    (3) A letter to the NRC dated September 11, 1995, signed by Lourdes 
Boschuk and reviewed and edited by Mr. Boschuk, stated that the Troxler 
gauge which was missing at the time of the NRC inspection on August 1, 
1995 was in Watertown, New York; was returned the next day to JLT. In 
fact, according to the Chief Engineer of SE Technologies, Inc., Mr. 
Boschuk personally transferred the gauge to SE Technologies, Inc. in 
July 1995, and requested return of the gauge on August 14 or 15, 1995. 
In fact the gauge was not returned to JLT until August 17, 1995. This 
was a deliberately inaccurate statement by Mr. Boschuk in violation of 
10 CFR 30.9(a) and 30.10(a).
    In addition, the letter represented that since the August 1995 NRC 
inspection, all three Troxler gauges had been kept in a locked storage 
cabinet at JLT's premises and would remain there until the apparent 
violations identified in the NRC inspection report were resolved. This 
inaccurate statement in violation of 10 CFR 30.9(a) was made by Mr. 
Boschuk with careless disregard for the facts. In fact, one of the 
gauges was transferred on September 6, 1995, to Cashin Associates, 
P.C., and was not returned to JLT until September 19 or 20, 1995.
    (4) A letter dated September 18, 1995, signed by Lourdes Boschuk 
for JLT and prepared by Mr. Boschuk as an agent for and consultant to 
JLT, and sent to the NRC in response to the NRC's September 15, 1995, 
letter confirming JLT's commitment at the September 15, 1995, 
enforcement conference to refrain from using the Troxler density gauges 
pending resolution of the apparent violations, made several materially 
inaccurate statements. The letter stated that all JLT's gauges had been 
in locked storage since the August 1995 NRC inspection. This was a 
deliberately inaccurate statement by Mr. Boschuk in violation of 10 CFR 
30.9(a) and 30.10(a)(2). In fact, Mr. Boschuk learned from Lourdes 
Boschuk no later than the weekend ending September 17, 1995, that a 
gauge had been recently transferred to Cashin Associates, P.C. As 
explained above, Mr. Boschuk also knew that the gauge had been 
transferred to SE Technologies, Inc., between July 18 and August 17, 
1995, although the NRC inspection ended on August 3, 1995.
    In addition, the letter stated that all three JLT Troxler gauges 
are currently locked in the designated storage cabinet on JLT's 
premises. This inaccurate statement was in violation of 10 CFR 30.9(a) 
and made with at least careless disregard as to its truth or falsity by 
Mr. Boschuk. Mr. Boschuk stated at a December 18, 1997, predecisional 
enforcement conference that although he checked the storage cabinet 
before preparing the letter, and saw three yellow cases which he 
assumed contained the gauges, he did not look inside the cases to 
verify the gauges were there. In fact, the gauge which had been 
transferred to Cashin Associates, P.C. was not returned to JLT until 
September 19 or 20, 1995.

C. Destruction of Records Relating to Gauge Usage

    According to a witness, John Boschuk, Jr. and others destroyed, 
altered, sanitized, or otherwise disposed of business and transactional 
records shortly after the August 1995 NRC inspection of JLT, in order 
to conceal from the NRC the unauthorized use and/or transfer of Troxler 
gauges by JLT. Among the records destroyed or disposed of were invoices 
and a log documenting use of the Troxler density gauges. According to a 
handwritten note, created by a JLT employee immediately after the 
September 15, 1995 enforcement conference, although utilization records 
were made available to the NRC inspector, those records could not be 
subsequently located. The note further reflected a question whether the 
utilization records were ``thrown away during sanitization of 
records?'' Shortly after the August 1995 inspection, the NRC inspector 
requested JLT to provide a copy of a utilization record found during 
the inspection and which documented the rental of a gauge to SE 
Technologies in September 1994, when neither JLE nor JLT had a valid 
NRC license. JLT did not provide the invoice and claimed it could no 
longer

[[Page 19524]]

find the document. Condition 19 of JLT's License requires that JLT 
conduct its licensed activities in accordance with its Application 
dated January 6, 1995. The Application mandates that JLT comply with 
conditions requiring the creation of a utilization log for the gauges 
and the maintenance of the log for audit purposes. The destruction of 
the utilization log was in violation of the 10 CFR 30.3 and 30.9(a). 
The participation of Mr. Boschuk in the deliberate destruction of the 
utilization log was in violation of 10 CFR 30.10(a).

III

    Based on the above, the NRC concludes that John Boschuk, Jr., 
President and owner of JLE and an agent of and a consultant to JLT, 
deliberately violated NRC regulations and otherwise committed willful 
violations of NRC requirements. These violations raise a serious doubt 
as to whether Mr. Boschuk can be relied upon to comply with NRC 
requirements and to provide complete and accurate information to the 
NRC. The NRC must rely upon the integrity of persons involved in 
licensed activities, especially owners and officials of NRC licensees. 
Deliberate misconduct of the type demonstrated by Mr. Boschuk cannot be 
tolerated. Notwithstanding the revocation of the JLE and JLT licenses, 
given Mr. Boschuk's repeated failures to adhere to regulatory 
requirements, the NRC no longer has the necessary assurance that Mr. 
Boschuk's activities, if performed under an NRC license, would be 
performed safely and in accordance with requirements.
    Consequently, I lack the requisite reasonable assurance that 
licensed activities can be conducted in compliance with the 
Commission's requirements and that the health and safety of the public 
will be protected if Mr. Boschuk were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Boschuk be prohibited from any 
involvement in NRC-licensed activities for a period of five years from 
the date of this Order, and if he is currently involved with another 
licensee in NRC-licensed activities, he must immediately cease such 
activities, and inform the NRC of the name, address and telephone 
number of the licensee, and provide a copy of this Order to the 
licensee. Additionally, Mr. Boschuk is required to notify the NRC of 
his first employment or involvement in NRC-licensed activities 
following the prohibition period.
    Accordingly, pursuant to sections 81, 161b, 161i, 161o, 182 and 186 
of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202, 10 CFR 30.10, and 10 CFR 150.20, it is 
hereby ordered that:
    1. For a period of five years from the date of this Order, Mr. 
Boschuk is prohibited from engaging in NRC-licensed activities. 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 in 
areas of NRC jurisdiction pursuant to the authority granted by 10 CFR 
150.20.
    2. For a period of five years from the date of this Order, Mr. 
Boschuk shall provide a copy of this Order to any prospective employer 
or business partner who engages in NRC-licensed activities (as 
described in Section IV.1 above) prior to his acceptance of any 
employment (whether involved in licensed activities or not) by, or 
acquisition of partnership or ownership interest in, a licensee (as 
described in Section IV.1 above). The purpose of this requirement is to 
ensure that the licensee is aware of Mr. Boschuk's prohibition from 
engaging in NRC-licensed activities.
    3. The first time Mr. Boschuk is employed in NRC-licensed 
activities, or acquires an interest in a licensee (as described in 
Section IV.1 above), following the five year prohibition, he shall 
notify the Regional Administrator, NRC Region I, 475 Allendale Road, 
King of Prussia, Pennsylvania 19406, prior to acquiring such an 
interest or engaging in NRC-licensed activities, including activities 
under an Agreement State license when activities under that license are 
conducted in areas of NRC jurisdiction pursuant to 10 CFR 150.20. The 
notice shall include the name, address, and telephone number of the NRC 
or Agreement State licensee and the location where licensed activities 
will be performed.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by the Licensee 
of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Boschuk 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, DC 20555, 
and include a statement of good cause for the extension. The answer may 
consent to this 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 shall 
set forth the matters of fact and law on which Mr. Boschuk or any other 
person adversely affected relies and the 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, Rulemaking 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 Deputy 
Assistant General Counsel for Enforcement at the same address, to the 
Regional Administrator, NRC Region I, 475 Allendale Road, King of 
Prussia, Pennsylvania 19406, and to Mr. Boschuk, if the answer or 
hearing request is by a person other than Mr. Boschuk. If a person 
other than Mr. Boschuk requests a hearing, that person shall set forth 
with particularity the manner in which his or her 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 Mr. Boschuk 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.
    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.

    Dated at Rockville, Maryland this 10th day of April 1998.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 98-10331 Filed 4-17-98; 8:45 am]
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