[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Notices]
[Pages 5038-5040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2838]



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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-32380, License No. 29-28659-01 EA 95-163]


Canspec Materials Testing, Inc., Middlesex, NJ; Order Imposing 
Civil Monetary Penalty

I

    Canspec Materials Testing, Inc. (Licensee) is the holder of 
byproduct Materials License No. 29-28659-01 issued by the Nuclear 
Regulatory Commission (NRC or Commission) on August 12, 1991. The 
license authorizes the Licensee to possess and use byproduct material 
for industrial radiography and replacement of sources in accordance 
with the conditions specified therein.

II

    An inspection of the Licensee's activities was conducted on July 19 
and 25, 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 Proposed Imposition of 
Civil Penalty (Notice) was served upon the Licensee by letter dated 
September 13, 1995. The Notice states the nature of the violations, the 
provisions 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 in two letters, both dated 
October 11, 1995. In its responses, the Licensee admitted Violations A 
through D and F through H; denied Violation E; and requested that the 
proposed civil penalty be reduced if not dismissed.

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 for the violations designated in the Notice should be imposed.

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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 $5,000 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 Mr. 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. 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, D.C. 20555, and include 
a statement of good cause for the extension. 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 I, 475 Allendale Road, King of Prussia, Pennsylvania 19406-1415.
    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 (or if 
written approval of an extension of time in which to request a hearing 
has not been granted), 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 Violation E of the Notice referenced in 
Section II above; and
    (b) whether, on the basis of such violation, and the additional 
violations set forth in the Notice that the Licensee admitted, this 
Order should be sustained.

    For The Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
    Dated at Rockville, Maryland, this 2nd day of February 1996.

Appendix--Evaluations and Conclusion

    On September 13, 1995, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for violations 
identified during an NRC inspection. Canspec Materials Testing, Inc. 
(Licensee or CTI) responded to the Notice on October 11, 1995. The 
Licensee admitted seven violations (Violations A-D and F-H), denied 
one violation (Violation E) and requested mitigation or dismissal of 
the civil penalty. The NRC's evaluation and conclusion regarding the 
licensee's requests are as follows:

1. Restatement of Violation E

    10 CFR 34.24 requires, in part, that each survey instrument used 
to conduct physical radiation surveys be calibrated at intervals not 
to exceed three months and after each instrument servicing.
    Contrary to the above,
    1. on June 8, 1995, a licensee employee conducted physical 
radiation surveys with a survey instrument (Serial Number 3369) 
which was last calibrated on February 17, 1995, an interval 
exceeding three months.
    2. on July 11, 1995, a licensee employee conducted physical 
radiation surveys with a survey instrument (Serial Number 2015) 
which was last calibrated on March 28, 1995, an interval exceeding 
three months.
    3. on August 15, 1994, a licensee radiographer conducted 
physical radiation surveys with a survey instrument (Serial Number 
3369) which was last calibrated on April 4, 1994, an interval 
exceeding three months.
    This is a repetitive violation.

2. Summary of the Licensees Response to Violation E

    The Licensee denied this violation, and stated that there was 
always a calibrated meter in use for surveys. The Licensee's 
president stated that he must have misunderstood a conversation he 
had with an NRC inspector regarding the use of survey instruments. 
The Licensee's president also stated that he was under the 
impression that as long as the survey meter used for compliance 
surveys was calibrated, a second meter could be used for information 
only.
    Further, the Licensee's president stated that when an audit was 
performed in the field and the equipment was found to be out of 
calibration they only had to go to ``our trailer'' to obtain 
properly calibrated equipment. In addition, the Licensee stated that 
an NRC inspector allowed them to return to work because there was 
properly calibrated functional equipment on site for use. The 
Licensee also stated that the company had the appropriate equipment 
in place for use. However, the workers did not take the time to 
check calibration dates before starting to work.

3. NRC Evaluation of the Licensees Response to Violation E

    10 CFR 34.24 requires, in part, that each survey instrument used 
to conduct physical radiation surveys be calibrated at intervals not 
to exceed three months and after each instrument servicing. The 
inspection findings were based on a review of documentation of 
survey instrument use and calibration, maintained by the Licensee, 
which indicated instances where the survey instrument used to show 
compliance had not been calibrated at the required frequency. While 
the Licensee may have had in its possession survey instruments which 
were calibrated as required, the Licensee did not comply with the 
requirement as stated in 10 CFR 34.24. Specifically, survey meters 
used by the Licensee to perform physical radiation surveys to ensure 
compliance with 10 CFR 34.24 on the dates specified in the Notice 
had not been calibrated within the previous three months as 
required.
    Having appropriately calibrated instruments on site or available 
for use does not demonstrate compliance with this requirement. It is 
the licensee's responsibility to assure that the instrument used is 
calibrated as required. Therefore, the NRC concludes that the 
Licensee has not provided an adequate basis for withdrawal of the 
violation.
    On November 14, 1995, Mr. Frank Costello, Chief, Nuclear 
Materials Safety Branch 3, NRC, contacted the Licensee's president 
by telephone for clarification of the Licensee's statement, in its 
October 11, 1995 response, concerning an NRC inspector allowing the 
Licensee to return to work because properly calibrated functional 
equipment was on site. During the telephone conversation, the 
Licensee's president stated that the NRC inspector allowed the 
radiographers to return to work only after assuring that they were 
using calibrated equipment.

4. Summary of Licensee's Request for Mitigation

    In its responses, the Licensee requested that the proposed civil 
penalty be reviewed for reduction if not dismissal. In June of 1995, 
Canspec was purchased by the current president. The president stated 
his contention that prior to this purchase, time was not spent where 
it should have been and now that he has assumed the position of 
president he will spend the time required to ensure that policy is 
followed ``to the letter.'' The president stated that now he has 
greater control over the operation and will be able to spend the 
time necessary sorting out any problems with individuals and if they 
fail to conform, they will be replaced. The Licensee also stated its 
belief that the violations were not entirely the company's 
responsibility. Further, the president stated that the company had 
fulfilled the calibration requirements, yet the men made a mistake 
by not checking the calibration dates before starting to work.

5. NRC Evaluation of Licensee's Request for Mitigation

    The NRC determined that the violations, given their number, 
nature, and the fact that three were repetitive, were of significant 


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regulatory concern and appeared to be indicative of the lack of 
management control over licensed activities. The lack of management 
control was evidenced by the fact that 13 violations were identified 
during the two NRC inspections in 1994. Therefore, the violations 
were appropriately characterized at Severity Level III in accordance 
with the ``General Statement of Policy and Procedure for NRC 
Enforcement Actions'' (Enforcement Policy), NUREG-1600 (60 FR 34381; 
June 30, 1995).
    As to the president's statements concerning his increased 
control over the Licensee's operation, the NRC considers that such 
actions are part of the Licensee's corrective action and expects 
licensees to exercise adequate management control over licensed 
activities consistently to ensure the protection of the public and 
the environment. Regardless of who committed the violations, the 
Licensee is responsible for the acts of its employees and for 
assuring that it is in compliance with all applicable regulations.
    Therefore, the NRC concludes that the Licensee has not provided 
an adequate basis for mitigation or withdrawal of the civil penalty.

6. NRC Conclusion

    The NRC has concluded that the violation occurred as stated and 
that an adequate basis for mitigation of the civil penalty was not 
provided by the Licensee. Consequently, the proposed civil penalty 
in the amount of $5,000 should be imposed.
[FR Doc. 96-2838 Filed 2-8-96; 8:45 am]
BILLING CODE 7590-01-P