[Federal Register Volume 59, Number 40 (Tuesday, March 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4561]


[[Page Unknown]]

[Federal Register: March 1, 1994]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION
[Docket No. 030-00810, License No. 21-00278-02, General License, 10 CFR 
31.5 EA 93-234]

 

Michigan Technological University, Houghton, MI; Order Imposing 
Civil Monetary Penalty

I

    Michigan Technological University (Licensee) is the holder of 
Byproduct Material License No. 21-00278-02 issued by the Nuclear 
Regulatory Commission (NRC or Commission) on April 25, 1958. The 
license was amended in its entirety on December 17, 1991, and is due to 
expire on December 31, 1996. The license authorizes the Licensee to 
possess byproduct materials for laboratory research, cesium-137 and 
americium-241 for use in a moisture/density gauge, nickel-63 for use in 
a gas chromatograph, and hydrogen-3 targets for a neutron generator, in 
accordance with the conditions specified therein.

II

    An inspection of the Licensee's activities was conducted on August 
26 through September 27, 1993. 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 Proposed 
Imposition of Civil Penalty (Notice) was served upon the Licensee by 
letter dated November 26, 1993. The Notice stated the nature of the 
violations, the positions of the NRC's requirements that the Licensee 
had violated, and the amount of the civil penalty proposed for the 
violations. The Licensee responded to the Notice by a letter dated 
December 17, 1993. In its response, the Licensee requested that the 
proposed civil penalty be mitigated in its entirety or at least 50 
percent of the base civil penalty. Further, the Licensee admitted 
Violations I.A through I.D, I.G., I.H, II, III, and IV, denied 
Violation I.E in part, and denied Violations I.F. and V.

III

    After consideration of the Licensee's response and the statements 
of fact, explanation, and argument for mitigation contained therein, 
the NRC staff has determined, as set forth in the Appendix to this 
Order, that the violations occurred as stated and that the penalty 
proposed in the Notice for the violations 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 $3,750 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 the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, ATTN: Document Control Desk, Washington, DC 20555.

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, 
ATTN: Document Control Desk, Washington, DC 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 III, 801 
Warrenville Road, Lisle, Illinois 60532-4351.
    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:
    (a) Whether the Licensee was in violation of the Commission's 
requirements as set forth in Violations I.E., I.F, and V of the Notice 
referenced in section II above, and
    (b) Whether, on the basis of such violations and the additional 
violations set forth in the Notice that the Licensee admitted, this 
Order should be sustained.

    Dated at Rockville, Maryland this 22nd day of February 1994.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.

Appendix--Evaluations and Conclusions

    On November 26, 1993, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for thirteen 
violations identified during an NRC inspection on August 26 through 
September 27, 1993. Michigan Technological University responded to 
the Notice in a letter dated December 17, 1993. In its response, the 
Licensee requested that the proposed civil penalty be mitigated in 
its entirety or at least by 50 percent of the base civil penalty. 
Further, the Licensee admitted Violations I.A through I.D, I.G, I.H, 
II, III, and IV, denied Violation I.E in part, and denied Violations 
I.F. and V. The NRC's evaluation and conclusions regarding the 
Licensee's requests are as follows:

Restatement of Violation I.E

    I. Condition 19.A of License No. 21-00278-02 requires that the 
Licensee conduct its program in accordance with statements, 
representations and procedures contained in applications dated June 
30 and November 12, 1991, including enclosures.
    E. Part 4 of the letter dated November 10, 1991, enclosed with 
the Licensee's application dated November 12, 1991, entitled, 
``Summary of Planned Inventory and Possession Limits of the Users of 
Radioactive Materials in Liquid Form,'' states that Dr. Murthy's 
possession limit for phosphorus-32 is 2 millicuries and that Dr. 
Leuking's possession limit for tritium is 2 millicuries and for 
sulfur-35 is 0.5 millicuries.
    Contrary to the above, from approximately January through July 
1993, Dr. Murthy possessed 5 millicuries of phosphorus-32 and Dr. 
Leuking possessed 5 millicuries of tritium and 3 millicuries of 
sulfur-35.

Summary of Licensee's Response to the Violation I.E

    The Licensee denied Violation I.E in part. The licensee stated 
that the user limits remained within University limits for users of 
radioactive materials. The Licensee, therefore, holds rigidly to 
control possession within those limits for the University spelled 
out in the license. While Dr.'s Murthy and Leuking possessed 
radioactive materials in excess of their individual limits, neither 
user's inventory impacted the University's limits.


NRC Evaluation of Licensee's Response to Violation I.E

    Although the Licensee's possession of radioactive materials 
remained within the University limits specified in the license, the 
two individual users did, in fact, violate the individual limits 
which were incorporated in License Condition 19.A, by reference to 
Part 4 of the letter dated November 10, 1991, enclosed with the 
Licensee's application dated November 12, 1991. Therefore, the NRC 
concludes that Violation I.E is valid.

Restatement of Violation I.F

    I. Condition 19.A of License No. 21-00278-02 requires that the 
Licensee conduct its program in accordance with statements, 
representations and procedures contained in applications dated June 
30 and November 12, 1991, including enclosures.
    F. Part 3 of the letter dated November 10, 1991, enclosed with 
the Licensee's application dated November 12, 1991, entitled, ``The 
Radiation Safety Program and DRU Concept,'' lists the duties and 
responsibilities of the DRUs. Item c. of the list states that the 
DRU will keep a log book of the receipt, use, and disposition of 
their radioisotopes.
    Contrary to the above, from approximately January through July 
1993, Dr. Murthy, a DRU, did not log the disposition of the 
quantities of phosphorus-32 that were disposed as liquid radioactive 
waste in the sanitary sewer and the quantities of solid radioactive 
waste that were transported out of the laboratory.

Summary of Licensee's Response to Violation I.F

    The Licensee asserted that the alleged violation resulted from 
the interpretation made by the inspector of information posted in 
the log. Neither the responsible DRU nor assigned graduate 
laboratory assistants were present at the time of the inspection. 
This observation would not have occurred had any one of the three 
responsible persons been present during the inspection. In Dr. 
Murthy's procedures, liquid phosphorus-32 is never disposed of down 
the sanitary sewer as radioactive waste. Generally all radioactive 
phosphorus-32 compounds are used within one to two weeks after 
receipt. All radioactive phosphorus-32 waste, solid and liquid, is 
then stored in the hazardous material storage building for greater 
than ten half-lives from the date received and then disposed of as 
non-radioactive waste. Dates received, users, quantities used, and 
quantities left in vials are timely entered in the radioactive 
compound log columns. Disposal columns are left open until decayed 
materials are brought back and disposed of as non-radioactive 
materials. Hand written notes are made in the margin of the log 
forms to act as reminders to properly dispose of the waste. This 
process could have been satisfactorily explained to the inspector 
had any of the three responsible lab persons been present. To 
prevent reoccurrence of misinterpretation, Dr. Murthy has been 
advised of the necessity to follow standard procedures when 
maintaining the log records.

NRC Evaluation of Licensee's Response to Violation I.F

    Although neither the responsible DRU (Dr. Murthy) nor the 
assigned graduate laboratory assistants were present during the 
inspection of this item, the inspector was assisted by the RSO when 
Dr. Murthy's laboratory was visited. The RSO indicated that liquid 
radioactive waste was disposed to the sewer via the hot sink located 
in a designated fume hood in the laboratory. This fume hood also 
contained laboratory trash that was contaminated with phosphorus-32.
    The inspector measured radiation dose rates from the hot sink 
drain that indicated 3 millirem per hour. The inspector also 
confirmed that the measured radiation dose rates in the hot sink 
were not generated from the laboratory trash that was also stored in 
the fume hood. The radiation dose rate measurements indicated that 
phosphorus-32 had been disposed as liquid radioactive waste to the 
sewer via the hot sink in the fume hood in the manner described by 
the RSO.
    In addition, the inspector evaluated, with the assistance of the 
RSO, Dr. Murthy's written records for receipt, use, and disposal of 
phosphorus-32 and tritium. The records were formatted as a balance 
sheet for radioactivity. The balance sheets indicated dates and 
activities of phosphorus-32 received and used by Dr. Murthy's 
graduate laboratory assistants. However, the balance did not 
indicate the activities disposed as liquid and solid radioactive 
waste. As indicated by the Licensee's response dated December 17, 
1993, Dr. Murthy did not follow standard procedures when maintaining 
the records of radioactive waste in that Dr. Murthy did not account 
for liquid radioactive waste that was disposed via the hot sink and 
solid radioactive waste that was transferred from the laboratory. 
Therefore, NRC concludes that Violation I.F is valid.

Restatement of Violation V

    V. 10 CFR 31.5(c)(3) requires, in part, that any person who 
acquires, receives, possesses, uses or transfers byproduct material 
in a device pursuant to a general license shall assure that 
installation involving the radioactive material is performed: (1) in 
accordance with the instructions provided by the labels; or (2) by a 
person holding a specific license pursuant to 10 CFR Parts 30 and 32 
or from an Agreement State to perform such activities.
    Contrary to the above, from approximately 1976 until August 26, 
1993, installation of the Licensee's Texas Nuclear Model 5176 and 
three Kay Ray Model 7030B density gauges each containing cesium-137, 
was not performed in accordance with the instructions provided by 
the labels or by a person holding a specific license pursuant to 10 
CFR Parts 30 and 32 or from an Agreement State to perform such 
activities. Specifically, the density gauges were not permanently 
installed on a pipeline in a manner consistent with the installation 
requirements.

Summary of Licensee's Response to Violation V

    The Licensee stated that the portable carts for four (4) density 
gauges were fabricated at Michigan Technological University. Upon 
receipt from the manufacturers, the gauges were permanently 
installed on the carts. Upon completion of the installation they 
were inspected and tested by representatives of the manufacturers. 
The portable carts are necessary to make various temporary 
installations on various pilot-plant projects. These temporary 
installations do not alter the factory approved testing and 
installation. The Licensee asserted that the alleged violation stems 
from the fact that its carts are prototype carts and not of the 
standard manufactured model. Because its gauges are mounted on 
portable carts rather than stationary, the pipe moves when the 
density gauges move.

NRC Evaluation of Licensee's Response to Violation V

    Although the Licensee installed the four density gauges on 
portable carts that were fabricated by the Licensee, the sealed 
source and device evaluation of the gauge performed by NRC and the 
State of Texas did not review and approve use of the density gauges 
in a portable fashion. The manufacturer did not furnish to the 
Licensee specific instructions for installation and use of the 
density gauges on portable carts. The density gauges were designed 
and evaluated as devices that would be installed in a permanent 
location by instructed individuals who are specifically authorized 
by NRC or an Agreement State to install or relocate the device. 
Therefore, NRC concludes that Violation V is valid.

Summary of Licensee's Request for Mitigation

    The Licensee denied the breakdown in the control of licensed 
activities in its December 17, 1993 answer to the Notice. While the 
Licensee admitted some of the violations stated in the NRC's letter, 
the Licensee believed that in no instance was any violation driven 
by willful intent to evade compliance, nor was there reckless 
disregard for radiation safety and health. Further, the Licensee 
believed that as its improved safety procedures were reestablished 
and after its management team had been restructured, each instance 
of noncompliance would have ultimately been discovered and corrected 
by persons entrusted with the responsibility for radiation safety on 
its campus. The Licensee asserted that these violations came about 
as the result of a temporary condition that existed at the 
University. While the NRC inspection hastened the discovery and 
correction of the problem areas, given time, the Licensee would have 
discovered all the infractions found by the NRC inspector and made 
necessary corrections without NRC intervention. The Licensee stated 
that both management and the Radiation Safety Officer insist on 
compliance with the radiation safety program and its requirements. 
Given these facts, the Licensee requested that the proposed civil 
penalty be mitigated in its entirety or at least by 50 percent of 
the base civil penalty.

NRC Evaluation of Licensee's Request for Mitigation

    The NRC determined that the thirteen violations represented a 
breakdown in the control of licensed activities. The root cause of 
the violations was an apparent lack of management attention to the 
radiation safety program by Michigan Technological University's 
administration, the Radiation Safety Committee, and the Radiation 
Safety Officer following the replacement of the upper two echelons 
of management at the university. The violations are related and 
collectively represented a potentially significant lack of attention 
or carelessness toward licensed responsibilities and were classified 
as Severity Level III in accordance with Supplement VI.C.7 of the 
Enforcement Policy (10 CFR Part 2, Appendix C).
    With regard to your concern that these violations were willful 
or reckless, the NRC did not characterize the violations as willful. 
Had the NRC characterized the violations as willful (i.e., careless 
disregard or deliberate), the severity level would have been 
increased and the base civil penalty would have been increased in 
accordance with Table 1A and 1B of the Enforcement Policy. In 
addition, if the violations involved the deliberate intent to 
violate NRC requirements, the Commission might have taken additional 
enforcement action, including issuance of appropriate orders to 
modify, suspend or revoke your license.
    The NRC acknowledges the improvements of the safety procedures 
and the significant management changes made by the Licensee. The 
staff views the Licensee's improvements in the radiation safety 
program as ongoing and that the Licensee, as it asserts, may have 
ultimately discovered and corrected each instance of noncompliance 
by persons entrusted with the responsibility for radiation safety on 
its campus. However, this assertion does not alter the fact that 
violations and noncompliance with NRC requirements existed and were 
identified by the NRC. As a result, the base civil penalty was 
escalated 50 percent for NRC identification in accordance with the 
Enforcement Policy.
    Based on the above, the staff concludes that mitigation is not 
warranted based on the licensee's request for mitigation.

NRC Conclusion

    Based on its evaluation of the Licensee's response, the NRC 
staff concludes that the violations did occur as stated, and that an 
adequate basis for mitigation of the civil penalty has not been 
provided by the Licensee. Accordingly, NRC concludes that a civil 
monetary penalty of $3,750 should be imposed by order.

[FR Doc. 94-4561 Filed 2-28-94; 8:45 am]
BILLING CODE 7590-01-M