[Federal Register Volume 62, Number 214 (Wednesday, November 5, 1997)]
[Notices]
[Pages 59906-59907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29242]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 150-00005; License No. Colorado 580-1; EA 96-459]
Western Colorado Testing, Inc., Grand Junction, CO; Order
Imposing Civil Monetary Penalty
I
Western Colorado Testing, Inc., (WCTI or Licensee) is the holder of
a General License pursuant to the provisions of 10 CFR 150.20(a). This
authorizes any person who holds a specific license from an Agreement
State to conduct the same activity in non-Agreement States subject to
the provisions of 150.20(b). WCTI holds a specific license from the
state of Colorado, an Agreement State, License No. 580-1.
II
An inspection of the Licensee's activities was conducted from
October 11, 1996, through February 3, 1997, and an investigation was
conducted from August 14, 1996, through January 8, 1997. The results of
the inspection and investigation 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 June 13, 1997.
The notice states the nature of the violation, the provisions of NRC
requirements that the Licensee had violated, and the amount of the
civil penalty proposed for the violation.
The Licensee responded to the Notice in a letter dated July 16,
1997. In its response, the Licensee stated that facts of the case
warrant a reconsideration of both the characterization of the violation
(as willful) and the proposed civil penalty.
III
After consideration of the Licensee's response and the arguments
for mitigation or reconsideration of the civil penalty contained
therein, the NRC staff has determined, as set forth in the Appendix to
this Order, that the violation occurred as stated and that the 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 $2,500 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 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, DC 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, DC 20555, with a copy to the
Commission's 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 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 (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
issue 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 28th day of October 1997.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Appendix--Evaluation and Conclusions
On June 13, 1997, a Notice of Violation and Proposed Imposition
of Civil Penalty (Notice) was issued for the violation identified
during an NRC inspection and investigation. Western Colorado
Testing, Inc., (WCTI or Licensee) responded to the Notice in a
letter dated July 16, 1997. In its response, the Licensee stated
that facts of the case warrant a reconsideration of both the
characterization of the violation (as willful) and the proposed
civil penalty. However, the Licensee did not dispute the violation
in its response and, in its April 1, 1997 letter responding to the
inspection report, admitted the violation. The NRC's evaluation of
the Licensee's request and conclusion regarding the Licensee's
requests are as follows:
Summary of Licensee's Request for Mitigation
WCTI stated that, although management was aware of the
requirement to inform the NRC prior to working in areas under NRC
jurisdiction, this fact alone does not justify designation of the
violation as willful, and the corresponding penalty of $2,500. In
support of its position, the Licensee stated that the Radiation
Safety Officer (RSO), who was ``not as honest and forthright'' as
WCTI's president, had represented to WCTI's president that he filed
the required Form 241; and that WCTI's president made every effort
to ensure compliance with NRC requirements. WCTI also noted that its
compliance efforts are reflected by the fact that there has never
been any previous escalated enforcement action against it. WCTI
pointed out that, according to the NRC's Enforcement Policy,
previous escalated enforcement is a factor that is considered in
assessing a civil penalty, and that this factor was not considered
in the proposed assessment of the civil penalty.
WCTI noted that, in cases where the NRC concludes that no
willful violation has occurred, and no escalated enforcement action
has been taken within the two prior years or during the two prior
inspections,
[[Page 59907]]
generally no penalty assessment is even proposed. WCTI maintained
that its situation was distinguishable from that of other testing
companies that had been ``fined'' by the NRC for willful violations
of the same regulations. In this regard, WCTI claimed that it should
not be classified together with those testing firms in which the
principals were deliberately ignoring compliance requirements.
Finally, the Licensee argued that, upon being notified that Form
241 had not been filed, WCTI took prompt corrective action to ensure
compliance and effective comprehensive action to prevent recurrence
of the violation.
NRC Evaluation of Licensee's Request for Mitigation
Section VI.A. of the Enforcement Policy provides that, in
general, licensees are held responsible for the acts of their
employees. The Commission formally considered the responsibility
issue between a licensee and its employees in its decision
concerning the Atlantic Research Corporation case, CLI-80-7, dated
March 14, 1980. In that case, the Commission stated, in part, that
``a division of responsibility between a licensee and its employees
has no place in the NRC regulatory regime which is designed to
implement our obligation to provide adequate protection to the
health and safety of the public in the commercial nuclear field.''
Not holding the licensee responsible for the actions of its
employees, whether such actions result from negligence or willful
misconduct, is tantamount to not holding the licensee responsible
for the use or possession of licensed material. If the NRC adopted
this position, there would be less incentive for licensees to
monitor their own activities to assure compliance because licensees
could attribute noncompliance to employee negligence or misconduct.
Therefore, notwithstanding WCTI's argument that the blame for the
violation rests with the former company RSO, under long-established
Commission Policy and case law, the company is still responsible for
the actions of its former RSO. Further, the NRC notes that the
violation continued to exist in 1996, after the assignment of a
newly trained RSO. This detracts from the Licensee's argument that
the blame lay with one particular former RSO.
As WCTI noted, Section VI.B.2 of the NRC's Enforcement Policy
provides for consideration of previous escalated enforcement in the
civil penalty assessment process. However, the civil penalty
assessment process considers several factors, including whether the
violation is willful. If any one of these considerations applies,
the policy states that the NRC should normally consider
identification in addition to corrective action in the civil penalty
assessment process (regardless of the licensee's previous escalated
enforcement). In this case, the NRC considered both identification
and corrective action in determining the civil penalty because the
NRC concluded that the violation was willful.
The term ``willfulness,'' as defined by Section IV.C. of the NRC
Enforcement Policy embraces a spectrum of violations ranging from
deliberate intent to violate or falsify, to and including careless
disregard for requirements (emphasis added). In this case, as
described in the NRC's Notice, the NRC concluded that WCTI (not its
president), through the action of one or more of its
representatives, committed a violation with careless disregard for
NRC regulations, a condition that clearly meets the NRC's definition
of a willful violation. As described in the Notice, the NRC's
conclusion was based on several grounds, including the fact that
WCTI had knowledge of the requirement to file NRC Form 241 (which
WCTI admits in its response).
As to Licensee's discussion of the NRC Enforcement Policy, civil
penalties are not normally proposed in cases where the NRC concludes
that no willful violation has occurred and no escalated enforcement
action has been taken within the two prior years or two prior
inspections, provided that prompt and comprehensive corrective
action is taken. However, the policy provides for consideration of
civil penalties in cases involving willfulness.
The NRC reviews each case being considered for enforcement
action on its own merits to ensure that the severity of a violation
and enforcement sanction are best suited to the significance of the
particular violation. In this case, as noted above, the NRC
concluded that the violation was willful. Therefore, in accordance
with Section VI.B of the Enforcement Policy, the NRC concluded that:
(1) No credit was warranted for identification because the NRC
identified the violation; and (2) credit was warranted for WCTI's
prompt and comprehensive corrective action (had the NRC concluded
otherwise, a civil penalty of $5,000 would have been proposed).
In its response, WCTI claimed that its case was ``readily
distinguishable'' from other similar enforcement actions such as EA
95-270, ``Foley Construction Services,'' EA 95-101, ``Testco,
Inc.,'' and EA 93-241, ``S.K. McBryde, Inc.'' The NRC agrees that
WCTI's case is distinguishable from the cases cited by WCTI in that
the cases cited involved deliberate violations, not violations
involving careless disregard. However, WCTI's comparison of the
civil penalty in this case to that in the cases cited in flawed in
that: (1) The civil penalty in the Foley Construction Services case
was based on the civil penalty assessment process described in an
earlier Enforcement Policy; 1 (2) the enforcement action
taken against Testco, Inc., involved an Order Prohibiting
Involvement in NRC-Licensed Activities to President of the company,
as well as a civil penalty to the licensee, which was initially
based on enforcement discretion and subsequently reduced from $5,000
to $1,000; and (3) the S. K. McBryde case did not involve an NRC
Form-241 violation, it involved a Severity Level IV violation for
failure to maintain complete and accurate records and a civil
penalty that was based on the civil penalty assessment process
described in the earlier Enforcement Policy.\1\ Furthermore, the
enforcement action against WCTI is consistent with other recent
cases involving careless disregard by testing companies to submit
Form-241 where corrective action credit was warranted. For example,
penalties of $2,500 were assessed in enforcement actions involving
EA 96-382, ``Energy Technologies, Inc.,'' EA 96-382, ``Grandin
Testing Lab, Inc.,'' and EA 96-447, ``Testing Laboratories, Inc.''
2
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\1\ In this earlier Enforcement Policy, the base amount for a
Severity Level III was $500 and the civil penalty assessment process
involved consideration of 6 factors. Under the current Enforcement
Policy, the base amount for a Severity Level III is $2,500 and the
civil penalty assessment process involves consideration of 2
factors.
\2\ These cases are available on the NRC web site at ``http://
www.nrc.gov/oe/'', which is maintained by the Office of Enforcement.
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NRC Conclusion
The NRC concludes that the violation occurred as stated and that
the Licensee has not provided adequate justification for
reconsideration of the characterization of the violation as
``willful'' or for mitigation of the civil penalty. Consequently,
the proposed civil penalty in the amount of $2,500 should be
imposed.
[FR Doc. 97-29242 Filed 11-4-97; 8:45 am]
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