[Federal Register Volume 65, Number 78 (Friday, April 21, 2000)]
[Notices]
[Pages 21489-21491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9967]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-20563, License No. 52-21368-01, EA 99-262]


In the Matter of Western Soil, Inc., Mayaguez, Puerto Rico 00681; 
Order Imposing Civil Monetary Penalty

I

    Western Soil, Inc. (Licensee) is the current holder of Materials 
License No. 52-21368-01 originally issued by the Nuclear Regulatory 
Commission (NRC or Commission) on December 13, 1983, to Caribbean Soil 
Testing Company, Inc. On April 12, 1994, an amendment was issued 
transferring the license to Western Soil, Inc. The license expires on 
April 30, 2004. The license authorizes Western Soil, Inc. to use sealed 
sources contained in portable gauging devices for measuring properties 
of materials.

II

    An inspection of the Licensee's activities was conducted on 
September 28-29, 1999. The results of this inspection indicated that 
the Licensee had not conducted its activities in 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 24, 1999. The Notice states the nature of the violations, the 
provisions of the NRC's requirements that the Licensee violated, and 
the amount of the civil penalty proposed for the violation cited in 
Part I of the Notice.
    The Licensee responded to the Notice by letters dated December 20, 
1999, and February 16, 2000. In its responses, the Licensee admits the 
violations in Part II of the Notice, but contests the violation in Part 
I of the Notice insofar as it stated that the licensee failed to 
maintain constant surveillance of licensed material. The Licensee also 
took issue with certain statements made in the cover letter forwarding 
the Notice. In addition, the Licensee requested that NRC consider 
categorizing the violation in Part I of the Notice as a first offense, 
rather than as a recurring one.

III

    After consideration of the Licensee's responses 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 violation cited in Part I of the Notice occurred as 
stated and that the penalty proposed for the violation designated in 
Part I of the Notice should be imposed.

[[Page 21490]]

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 $2,750 within 30 
days of the date of this Order, in accordance with NUREG/BR-0254. In 
addition, at the time of making payment, the Licensee shall submit a 
statement indicating when and by what method payment was made, to the 
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 submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 
20555. Copies also shall be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, and to the Regional Administrator, NRC 
Region II, U.S. Nuclear Regulatory Commission, 61 Forsyth St., SW, 
Suite 23T85, Atlanta, GA 30303.
    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 Part I of the Notice referenced in Section 
II above, and
    (b) whether, on the basis of such violation, this Order should be 
sustained.

    Dated this 12th day of April 2000.

    For the Nuclear Regulatory Commission.
R.W. Borchardt,
Director, Office of Enforcement.

Appendix--Evaluations and Conclusions

    On November 24, 1999, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for violations 
identified during an NRC inspection. The licensee's response denies 
Violation I in part and provides additional information in support 
of mitigation of the violation, and admits Violation II.A and B. The 
NRC's evaluation and conclusion regarding the licensee's arguments 
are as follows:

Restatement of the Violation in Part I of the Notice

    10 CFR 20.1801 requires the licensee to secure from unauthorized 
removal or access licensed materials that are stored in controlled 
or unrestricted areas. 10 CFR 20.1802 requires the licensee to 
control and maintain constant surveillance of licensed material that 
is in a controlled or unrestricted area and that is not in storage. 
As defined in 10 CFR 20.1003, controlled area means an area, outside 
of a restricted area but inside the site boundary, access to which 
can be limited by the licensee for any reason; unrestricted area 
means an area, access to which is neither limited nor controlled by 
the licensee.
    Contrary to the above, on June 4, 1999, the licensee failed to 
secure from unauthorized removal or limit access to a moisture/
density portable nuclear gauge containing approximately 10 
millicuries of cesium-137 and 50 millicuries of americium-241 in a 
vehicle while at a temporary job site, which is an unrestricted 
area, nor did the licensee control and maintain constant 
surveillance of this licensed material. As a result, the gauge was 
stolen.

Summary of Licensee's Response to the Violation in Part I of the Notice

    In response to the violation, the licensee stated that on June 
4, 1999, the technician did not abandon or leave the gauge. The 
licensee further stated that after completing density tests, the 
technician secured the gauge to the bed of the pick up truck with 
only a stabilization belt. The licensee stated that the case was not 
secured to the vehicle with a chain and padlock because the 
technician was discussing work with the project manager at a 
distance of 300-400 feet from the gauge. The licensee admitted the 
technician's mistake, but indicated that it was not a typical 
situation during operations and that the gauge was not abandoned.

NRC Evaluation of Licensee's Response to the Violation in Part I of the 
Notice

    Regarding the regulatory basis for the violation of 10 CFR 
20.1801 and 20.1802, the technician's presence at a distance of 300-
400 feet from the gauge was, in this case, unacceptable for 
maintaining adequate surveillance and control over unsecured 
licensed material because the gauge was stolen. This is a clear 
indication that it was not adequately surveilled or controlled.

Summary of Licensee's Request for Mitigation

    The licensee took issue with the characterization of the 
violation as similar to a violation identified in March 1994 when 
the license was under the control of the previous owner, Caribbean 
Soil Testing Company, Inc. The licensee stated that in June 1997, 
Western Soil, Inc. assumed responsibility for the license and 
committed to the programs required by the NRC. The licensee noted 
inadequacies in Carribean Soil's procedures for handling gauges and 
implemented improvements, including use of a chain and padlock to 
secure gauges to vehicles. The licensee stated that it was unaware 
of the previous violation until NRC's letter of November 24, 1999, 
transmitting the Notice. Furthermore, the licensee asserts that the 
prior violation, as recalled by the former owner of the company, 
related to a case padlock, not to stolen equipment. Based on this, 
the licensee requested that the violation be considered a first time 
offense and not a recurring one.
    The licensee also disagreed with the finding that the 
transportation case for the stolen gauge contained the gauge key, as 
stated in NRC's November 24, 1999, cover letter forwarding the 
Notice. The licensee stated that, during the inspection, the NRC 
inspector found keys inside an envelope in the transportation case 
which belonged to a gauge in storage. The licensee further explained 
that keys are normally stored in the transportation cases of ``out 
of service'' gauges to ensure that the keys travel with the gauges 
when they are shipped for service, as opposed to gauges being used 
in the field, which did not have keys with them. The licensee stated 
that on the day of the NRC inspection, the transportation case of 
the gauge returning from the field did not contain its key.

NRC Evaluation of Licensee's Request for Mitigation

    In accordance with Section VI.B.2. of the Enforcement Policy, 
when activities under the license have been the subject of any 
escalated enforcement action within the last two inspections, the 
NRC considers whether credit is warranted for identification or 
corrective action in assessing the amount of the civil penalty. In 
this case, because the activities under the license had been the 
subject of escalated enforcement action within the last two 
inspections, the NRC applied these factors in assessing the amount 
of the civil penalty.
    Although the licensee stated that it was unaware of the previous 
violation until NRC's letter of November 24, 1999, transmitting the 
Notice, as part of the application, the licensee submitted a letter 
dated August 19, 1997, which stated that the new owner agreed with 
all constraints, conditions requirements, representations and 
commitments identified in the existing

[[Page 21491]]

license. This letter is referenced in License Condition 21 of the 
NRC license which requires, in part, that the licensee maintain the 
corrective actions for previous enforcement actions. Corrective 
actions from the previous enforcement action issued on June 14, 
1994, regarding security of material, were documented in a letter 
dated August 29, 1994, from Caribbean Soil Testing Company, Inc. 
which stated, ``we have attached a chain to the handle of the gauge 
box and lock it with the open bed of the pick up truck.'' The NRC 
therefore holds the new owner responsible for the previous escalated 
enforcement actions and associated corrective action effectiveness. 
In this case, as explained in the cover letter forwarding the 
Notice, the licensee did not maintain effective corrective action 
such as would have prevented this violation from occurring.
    In addition, the licensee stated that the previous violation of 
June 14, 1994, was not associated with a stolen gauge but rather, 
was associated with a case padlock. The current violation need not 
be a duplicate of the previous enforcement action, but these two 
actions are similar in that both of these violations involve the 
licensee's failure to control licensed material. The fact that the 
prior violation was not identical to this violation had no bearing 
upon the amount of the civil penalty that was assessed.
    Regarding the location of the gauge keys, the inspector observed 
a gauge in storage with the gauge key in an envelope inside the 
transportation case, and questioned the licensee about the stolen 
gauge. The licensee's Radiation Safety Officer (RSO) stated to the 
inspector that the stolen gauge's transportation case also contained 
its key in an envelope, and that the practice of transporting gauges 
with their keys was not uncommon. The RSO told the inspector that 
the stolen gauge was found with a broken transport case lock; 
however, the envelope which contained the key inside the 
transportation case appeared to be untampered with. This finding was 
documented in the October 19, 1999, inspection report and was 
neither challenged nor questioned by Western Soil, Inc. during the 
November 9, 1999, predecisional enforcement conference. In its 
letters dated December 20, 1999, and February 16, 2000, Western 
Soil, Inc. provided information contrary to this finding. However, 
the reconciliation of this conflicting information regarding the 
location of the keys has no effect on the outcome of the final 
enforcement action including the potential civil penalty. Although 
the location of the keys does affect the magnitude of the safety 
significance; the severity level of the violation and associated 
civil penalty were based solely on the licensee's failure to 
maintain adequate security over licensed material which resulted in 
the gauge being stolen and in the public domain. Such a violation is 
categorized at Severity Level III in accordance with Supplements 
IV.C.9 and VI.C.I of the Enforcement Policy.

NRC Conclusion

    For the above reasons, the NRC staff concludes that the 
violation occurred as stated and that mitigation of the civil 
penalty is not warranted.

[FR Doc. 00-9967 Filed 4-20-00; 8:45 am]
BILLING CODE 7590-01-P