July 1,
2010
Securities
and Exchange Commission
450 Fifth
Street, N.W.
Washington,
D.C. 20549
Attention: John
Hartz, Senior Assistant Chief Accountant
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Re:
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Perma-Fix Environmental
Services, Inc.; Form 10-K for Fiscal Year
Ended
December 31, 2009; File No. 1-11596
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Ladies
and Gentlemen:
This
letter is submitted by Perma-Fix Environmental Services, Inc. (the “Company”) in
response to the comments of the Staff of the Securities and Exchange Commission
(the “SEC”) with respect to the Company’s Form 10-K for fiscal year ended
December 31, 2009 (the “2009 Form 10-K”). The Staff comments were
delivered to Ben Naccarato, Vice President and Chief Financial Officer of the
Company, by letter dated June 21, 2010 (the “Comment Letter”).
The
Comment Letter does not specifically state that comment no. 8 may be complied
with in the Company’s future filings. On June 23, 2010, we discussed
the Comment Letter with Hagen Ganem, staff attorney with the Division of
Corporate Finance at the SEC. During our conversation with Mr. Ganem,
our counsel, Conner & Winters, LLP, discussed with Mr. Ganem the possibility
of the Company complying with comment no. 8 beginning with the Company’s Form
10-Q for quarter ended June 30, 2010. Mr. Ganem orally advised our
counsel that comment no. 8 would not require the filing of an amendment to the
2009 Form 10-K as long as such was complied with in our Form 10-Q for quarter
ended June 30, 2010.
The
Staff’s comments and the Company’s responses thereto are set forth below,
numbered as such comments are numbered in the Comment
Letter. Capitalized terms used herein have the meanings assigned to
them in the 2009 10-K.
Item 1. Business,
page 1
Importance of Patents,
Trademarks and Proprietary Technology, page 4
1. We
note your disclosure that your research and development efforts have produced
seven active patents. In future filings, please disclose the
remaining life of these patents. See Item 101(c)(1)(iv) of Regulation
S-K.
Securities
and Exchange Commission
July 1,
2010
Page
2
The
Company will disclose the remaining life of the seven active patents in its
future filings.
Competitive Conditions, page
7
2. In
future filings, please disclose the principal methods of competition in your
industry segments. See Item 101(c)(1)(x) of Regulation
S-K.
The
Company will enhance and expand its disclosures regarding the principal methods
of competition in the Company’s industry segments in its future
filings.
Item 9A. Controls
and Procedures, page 108
3. We
note that your management’s conclusion regarding the effectiveness of your
disclosure controls and procedures appears to be based on the definition in
Rules 13a-15(e) and 15d-15(e) under the Exchange Act. As stated,
however, your description does not fully conform to the definition set forth in
those rules. In this regard, we note that your description does not
clearly indicate that your disclosure controls and procedures are designed to
ensure that information is accumulated and communicated to management, including
the principal executive and financial officers, as appropriate to allow timely
decisions regarding required disclosure. Please confirm this to us
and revise accordingly in future filings. Alternatively, you may
simply state in future filings that your certifying officers concluded that your
disclosure controls and procedures were effective on the applicable
dates.
The
Company confirms to the Staff that the Company’s disclosure controls and
procedures are designed to ensure that information is accumulated and
communicated to management, including the principal executive and financial
officers, as appropriate to allow timely decisions regarding required
disclosure. In the Company’s future filings, the Company will revise
its disclosure controls and procedures under Item 9 accordingly.
4. We
note the qualification that your “management recognizes that any controls and
procedures, no matter how well designed and operated, can provide only
reasonable assurance of achieving the desired control
objectives….” Accordingly, please indicate in future filings that
your disclosure controls and procedures are designed to provide reasonable
assurance of achieving their stated objectives and that your principal executive
officer and principal financial officer concluded that your disclosure controls
and procedures are effective at the reasonable assurance
level. Alternatively, please remove language from your filings that
qualify the design, operation, and effectiveness of your disclosure controls and
procedures.
Securities
and Exchange Commission
July 1,
2010
Page
3
In the
Company’s future filings, the Company will indicate that the Company’s
disclosure controls and procedures are designed to provide reasonable assurance
of achieving their stated objectives and that the Company’s principal executive
officer and principal financial officer concluded that the Company’s disclosure
controls and procedures are effective at the reasonable assurance level on the
applicable date.
Signatures, page
138
5. In
future filings, please indicate who signed your Form 10-K in the capacity of
chief accounting officer. See General Instructions D(2)(a) to Form
10-K.
The
Company will identify the officer signing its Form 10-K in capacity of chief
accounting officer in its future filings. The undersigned, Ben
Naccarato, currently serves as both the chief financial officer and chief
accounting officer of the Company.
Exhibit Index, page
140
6. It
appears that Exhibit 4.2 incorporates by reference the original, unamended
Revolving Credit, Term Loan and Security Agreement; however, it does not contain
all of the schedules and exhibits referenced therein. Please file
with your next periodic or current report, a complete copy of this credit
agreement, including all schedules and exhibits referenced
therein. See Item 601(b)(10) of Regulation S-K. In
addition, please revise your exhibit list in future filings to accurately
reflect the name of this agreement.
The
Company will file a complete copy of the original Revolving Credit, Term Loan
and Security Agreement, including all schedules and exhibits referenced therein,
as an exhibit to the Company’s Form 10-Q for the period ended June 30,
2010. The Company will revise its exhibit list in future filings to
accurately reflect the name of such agreement.
7. Please
file with your next periodic or current report, a complete copy of Amendment
No. 5 to the Revolving Credit, Term Loan and Security
Agreement. See Item 601(b)(10) of Regulation S-K.
The
Company will file a complete copy of Amendment No. 5 to Revolving Credit, Term
Loan and Security Agreement as an exhibit to the Company’s Form 10-Q for the
period ended June 30, 2010. This document was originally filed as
Exhibit 4.1 to the Company’s Form 8-K filed June 30, 2005.
Securities
and Exchange Commission
July 1,
2010
Page
4
8. Please
file as a material contract the subcontract awarded to East Tennessee Materials
& Energy Corporation by CH Plateau Remediation Company, which you first
discuss on page 3. We note that this contract accounted for 44.9% of
your total revenues during 2009. See Item 601(b)(10) of Regulation
S-K.
The
referenced subcontract awarded to East Tennessee Materials & Energy
Corporation was filed as Exhibit 10.18 to the 2009 Form 10-K by means of
incorporation by reference from Exhibit 10.1 to the Company’s Form 10-Q for the
quarter ended June 30, 2008, filed on August 11, 2008. For
clarification, the Company will file the referenced subcontract as an exhibit to
the Company’s Form 10-Q for the quarter ended June 30, 2010.
9. We
note the following:
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Incorporated Exhibit 4.4 does
not appear to be filed as Exhibit 4.3 to the Form 10-Q for the quarter
ended September 30, 2002.
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Exhibit 4.8 is not filed with
your Form 10-K for the fiscal year ended December 31, 2009, and is not
otherwise incorporated by reference to another
filing.
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Incorporated Exhibit 4.15 does
not appear to be filed as Exhibit 4.2 to the Form 10-Q for the quarter
ended June 30, 2008.
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Please
advise us or revise accordingly in future filings.
With
respect to the exhibits identified in Comment No. 9, the Company responds as
follows:
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Exhibit
4.4 is incorrectly identified as being filed as Exhibit 4.3 to the Form
10-Q for the quarter ended September 30, 2002. In fact, Exhibit
4.4 was filed as Exhibit 4.3 to the Form 10-Q for the quarter ended June
30, 2002. The Company will refile this document as an exhibit
to the Company’s Form 10-Q for quarter ended June 30,
2010.
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Exhibit
4.8 was originally filed as Exhibit 4.10 to the Company’s Form 10-K for
the year ended December 31, 2005. Exhibit 4.8 will be refiled
as an exhibit to the Company’s Form 10-Q for quarter ended June 30,
2010.
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Exhibit
4.15 was incorrectly identified as being filed as Exhibit 4.2 to the Form
10-Q for the quarter ended June 30, 2008. In fact, Exhibit 4.15
was filed as Exhibit 99.1 to the Form 8-K filed on August 8,
2008. The Company will correct the reference to the appropriate
document in its Form 10-Q for the quarter ended June 30, 2010 and in its
future filings.
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10. Please
be advised that no document on file with the Commission for more than five years
may be incorporated by reference, subject to certain limited
exceptions. See Item 10(d) of Regulation S-K. We note that
the documents you incorporate by reference in Exhibits 10.2, 10.3, and 10.5 have
been on file with the Commission for more than five years and do not appear to
satisfy any of the exceptions listed in Item 10(d). Please advise or
revise accordingly in future filings.
Securities
and Exchange Commission
July 1,
2010
Page
5
The
Company will file copies of Exhibits 10.2, 10.3, and 10.5 as exhibits to its
Form 10-Q for the quarter ended June 30, 2010.
In
connection with responding to your comments, the Company acknowledges
that:
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the
Company is responsible for the adequacy and accuracy of the disclosure in
the filings;
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staff
comments or changes to disclosure in response to staff comments do not
foreclose the SEC from taking any action with respect to the filings;
and
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the
Company may not assert staff comments as a defense in any proceeding
initiated by the SEC or any person under the federal securities laws of
the United States.
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We
appreciate your attention to this matter. If you have any questions
or comments, please do not hesitate to contact our counsel, Irwin H. Steinhorn,
Esquire, of the firm of Conner & Winters, LLP, 1700 One Leadership Square,
211 North Robinson Avenue, Oklahoma City, Oklahoma 73102, at (405) 272-5711, or
the undersigned at (770) 587-9898, ext. 112.
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Sincerely,
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/s/
Ben Naccarato
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Ben
Naccarato
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Vice
President
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Chief
Financial Officer
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cc:
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Dr.
Louis F. Centofanti
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