[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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