[Federal Register Volume 60, Number 94 (Tuesday, May 16, 1995)]
[Notices]
[Pages 26054-26055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11989]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 999-90004 Texas License No. L04153 EA 95-007]
IHS Geotech & CMT, Inc., San Antonio, Texas; Order Imposing Civil
Monetary Penalty
I
IHS Geotech & CMT, Inc., (Licensee) is the holder of Texas
Radioactive Material License L04153 issued by the Texas Bureau of
Radiation Control. The license authorizes the Licensee to possess and
use sealed sources of various radioisotopes in moisture/density gauges
at temporary job sites throughout Texas, except in areas under
exclusive federal jurisdiction. In areas of exclusive federal
jurisdiction, these activities can only be conducted pursuant to an NRC
specific or general license.
II
An inspection of the Licensee's activities in areas under exclusive
federal jurisdiction, i.e., certain military installations located in
Texas, was conducted December 16, 1994 to January 12, 1995. The results
of this inspection indicated that the Licensee had not conducted its
activities in full compliance with NRC requirements. A written Notice
of Violation and [[Page 26055]] Proposed Imposition of Civil Penalty
(Notice) was served upon the Licensee by letter dated February 23,
1995. The Notice states the nature of the violation, the provisions of
the NRC's requirements that the Licensee had violated, and the amount
of the civil penalty proposed for the violation. The Licensee responded
to the Notice in letters dated March 21, 1995. In its response, the
Licensee admitted the violation but requested mitigation because it
disagreed with the NRC's application of the duration adjustment factor
in determining the civil penalty amount.
III
After consideration of the Licensee's response and argument for
mitigation contained therein, the NRC staff has determined as set forth
in the Appendix to this Order, that the violation occurred as stated,
that the duration of the noncompliance with appropriately used as a
basis for deriving the civil penalty amount and, therefore, that the
$500 civil 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 $500 within 30
days of the date of this Order, by check, draft, money order, or
electronic transfer, payable to the Treasurer of the United States and
mailed to James Lieberman, 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. A request for a hearing should be clearly marked as a
``Request for an Enforcement Hearing'' and shall be addressed to the
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, D.C. 20555, with a copy to the Commission's Document
Control Desk, Washington, D.C. 20555. Copies also shall be sent to the
Assistant General Counsel for Hearings and Enforcement at the same
address and to the Regional Administrator, NRC Region IV, 611 Ryan
Plaza Drive, Suite 400, Arlington, Texas 76011.
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, 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:
Whether, on the basis of the violation admitted by the Licensee,
this Order should be sustained.
Dated at Rockville, Maryland, this 4th day of May 1995.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Appendix To Order Imposing Civil Monetary Penalty 999-90004
Appendix: Evaluation and Conclusion
On February 23, 1995, a Notice of Violation and Proposed
Imposition of Civil Penalty (Notice) was issued for a violation
identified during an NRC inspection. IHS Geotech & CMT, Inc.
(Licensee) responded to the Notice on March 21, 1995. In its
response, the Licensee admitted the violation but requested
mitigation because it disagreed with the NRC's application of the
duration adjustment factor in determining the civil penalty amount.
A restatement of the violation and the NRC's evaluation and
conclusion regarding the Licensee's request follow:
Restatement of Violation
10 CFR 30.3 states, in part, that except for persons exempted,
no person shall possess or use byproduct material except as
authorized by a specific or general license issued pursuant to Title
10, Chapter 1, Code of Federal Regulations.
Contrary to the above, on numerous occasions between January
1991 and December 1994, IHS Geotech & CMT, Inc. (IHS) possessed and
used byproduct material at various military facilities under
exclusive federal jurisdiction without being authorized by a
specific or general license issued pursuant to Title 10, Chapter 1,
Code of Federal Regulations, and IHS was not exempted. (01013).
This is a Severity Level III violation (Supplement VI). Civil
Penalty--$500
Summary of Licensee's Response to Violation
The Licensee admitted the violation but requested mitigation
because it disagreed with the NRC's application of the duration
adjustment factor in determining the civil penalty amount.
Summary of Licensee's Request for Mitigation
The Licensee said ``Once overlooked, the event had occurred.
Only an inspection, as occurred, or some other event, would
terminate the period of violation. A more timely review of NRC
records or periodic inspections by Radiation Safety Officers on the
military installations of San Antonio would have worked to my
advantage.''
NRC Evaluation of Licensee's Request for Mitigation
The licensee's argument suggests that someone other than the
Licensee, i.e., the NRC or military officials, should have
discovered the violation, resulting in it being corrected earlier
than it was. This is contrary to a basic premise of the NRC's
Enforcement Policy and regulatory philosophy, that it is licensees
who are responsible for assuring compliance with all applicable
requirements. It is not acceptable for a licensee to remain in
noncompliance regardless of the frequency of NRC inspections. In
addition, due to the Licensee's noncompliance with NRC requirements,
the NRC staff was unaware of the Licensee's activities under NRC
jurisdiction and, thus could not conduct inspections.
The NRC staff considered it significant that the violation
continued for nearly four calendar years. This effectively denied
the NRC staff the opportunity, over an extended period of time, to
ensure that IHS Geotech & CMT, Inc., was appropriately licensed by
the state of Texas and was conducting its activities safely when
working in areas of exclusive federal jurisdiction.
The NRC's Enforcement Policy (Section VI.B.2 (f)), states that a
base civil penalty may be escalated by as much as 100% to reflect
the added technical or regulatory significance resulting from the
violation or the impact of it remaining uncorrected for more than
one day. The Policy adds that this factor should normally be applied
in cases involving particularly safety significant violations or one
where a significant regulatory message is warranted.
Although the NRC staff developed no evidence to suggest that the
Licensee's activities were performed unsafely, the NRC staff has
concluded that the lack of opportunity to verify that the Licensee
was operating safely over nearly four years warranted an increase in
the base civil penalty value to emphasize the regulatory
significance of this violation.
When balanced against the remaining adjustment factors, this
resulted in a proposed civil penalty of $500. The NRC staff notes
that the penalty proposed was below the costs the Licensee would
have incurred had the Licensee either obtained an NRC license to
conduct these same activities during the period of noncompliance or
followed the accepted NRC practice of submitting a reciprocity form
(Form 241) and paying the associated reciprocity fees for each of
the years in question.
NRC Conclusion
The NRC staff concludes that the duration factor was
appropriately considered in determining the civil penalty amount and
that the $500 civil penalty was correctly assessed. Consequently,
the proposed civil penalty in the amount of $500 should be imposed.
[FR Doc. 95-11989 Filed 5-15-95; 8:45 am]
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