[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Notices]
[Pages 19780-19781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9889]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-29654, License No. 49-26861-01, EA-01-219]


In the Matter of Centennial Engineering & Research, Inc., 
Sheridan, WY; Order Imposing Civil Monetary Penalty

I

    Centennial Engineering & Research, Inc. (Licensee) is the holder of 
Materials License No. 49-26861-01 issued by the Nuclear Regulatory 
Commission (NRC or Commission) on January 22, 1987. The last amendment, 
Amendment No. 3, was issued June 8, 2001. The license authorizes the 
Licensee to possess and use portable moisture/density gauges containing 
byproduct material in accordance with the conditions specified therein.

II

    An inspection and investigation of the Licensee's activities were 
completed in September 2001. 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 December 3, 2001. The Notice 
stated 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 dated December 
26, 2001. In its responses, the Licensee admitted the violations that 
were the basis for the civil penalty, but disagreed that there was any 
willfulness associated with the violations and requested mitigation of 
the civil penalty.

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 that violations cited in the Notice were 
willful, and that the civil penalty proposed 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 $3,000 within 
30 days of the date of this Order, in accordance with NUREG/BR-0254. 
In addition, at the time of making the payment, the licensee shall 
submit a

[[Page 19781]]

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 
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 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 (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: Whether on the basis 
of the violations admitted by the Licensee, this Order should be 
sustained.

    Dated this 9th day of April, 2002.

    For the Nuclear Regulatory Commission.
Frank J. Congel,
Director, Office of Enforcement.

Appendix to Order Imposing Civil Penalty

NRC Evaluation and Conclusion of Licensee's Request for Mitigation of 
Civil Penalty

    On December 3, 2001, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for violations 
identified during an NRC inspection and investigation. Centennial 
Engineering & Research, Inc., (CER or Licensee) responded to the 
Notice on December 26, 2001. The Licensee admitted Violations A and 
B, but denied that there was any willfulness associated with the 
violations and requested mitigation of the civil penalty. The NRC's 
evaluation and conclusion regarding the licensee's response are as 
follows:

Summary of Licensee's Request for Mitigation

    The Licensee provided three bases for mitigating the civil 
penalty in its December 26, 2001 Answer to a Notice of Violation:
    (1) The violations created no actual or potential safety 
consequences. The Licensee stated that the portable gauges were 
cared for properly at all times, and that complying with NRC 
regulations regarding the care of byproduct material and fully 
protecting the public interest is an extenuating circumstance.
    (2) The Licensee now believes that willfulness did not occur. 
The Licensee's radiation safety officer intended to submit the 
license amendments in a timely manner, but was distracted by what he 
considered more pressing deadlines associated with his other 
responsibilities. The Licensee's radiation safety officer admitted 
to willfulness under ``pointed questioning'' by NRC investigators, 
and then that information was used against CER.
    (3) The civil penalty was not applied consistently in that 
Roetech, LLC, also should be fined based on an equal level of 
knowledge regarding amendment submittal requirements that did not 
occur on a timely basis. The Roetech Radiation Safety Officer (RSO) 
had primary responsibility to submit the amendment transferring the 
location of the gauges and authorizing him to receive byproduct 
material.

NRC Evaluation of Licensee's Request for Mitigation

    The NRC's evaluation of the Licensee's three arguments follows:
    (1) The NRC acknowledged in its December 3, 2001 letter and 
Notice that the violations created no actual or potential safety 
consequences. This factor was taken into account in determining the 
severity level of the violations. Absent willfulness, the violations 
would have been classified at Severity Level IV, and no civil 
penalty would have been considered. As our letter stated, 
willfulness resulted in these violations being classified as a 
Severity Level III problem.
    (2) The NRC maintains its position that there was willfulness 
associated with the violations. We maintain our position because the 
radiation safety officer acknowledged that he knew what was 
required, because he took no action to comply until the NRC became 
involved, because he stated during his initial interviews and at the 
predecisional enforcement conference that cost was a factor in his 
procrastination (implying a conscious decision to delay action), 
because his failure to take action to comply continued for several 
months, and because he was reminded during this period that he was 
expected to take action to comply.
    (3) The NRC took enforcement action against Roetech, LLC, based 
on its failure to obtain an NRC license before taking possession of 
portable gauges containing byproduct material. However, we concluded 
that the Roetech RSO's failure to submit the amendment transferring 
the location of the gauging device and authorizing himself to 
receive byproduct material was not willful because the radiation 
safety officer for the company believed he could use the gauges 
under CER's license as long as he was completing jobs covered by a 
contractual arrangement with CER. Following NRC's enforcement 
process, Roetech was issued a Severity Level IV NOV for possession 
of radioactive material without a license. NRC's policy is to not 
assess a Civil Penalty for violations cited a Severity Level IV.

NRC Conclusion

    The NRC concludes that CER has not provided a sufficient basis 
for mitigation of the proposed civil penalty. Consequently, the 
proposed civil penalty in the amount of $3,000 should be imposed by 
Order.
[FR Doc. 02-9889 Filed 4-22-02; 8:45 am]
BILLING CODE 7590-01-P